Professor Chemerinsky is correct that I am asserting that the Constitution grants the President extraordinarily broad powers. (For the record, I believed FISA was unconstitutional when I first read it as a Senate staffer thirty years ago.) While our immediate topic is the NSA Terrorist Surveillance Program (TSP) that in each instance involves a communication with a foreign national outside this country known or believed to be a terrorist, the President’s foreign affairs powers go beyond that. Even if one party to the communication is inside the United States, these are international communications involving agents of foreign powers and thus they come within the scope of the President’s foreign affairs and war powers.

If we are talking about national security electronic surveillance of a purely domestic target (an American with no clear ties to a foreign power), the unanimous 1972 Keith case clearly requires a judicial warrant. But, particularly during a period of congressionally authorized war, the President’s power to protect the nation from foreign powers and their agents in this country is indeed broad. If the President had reason to believe that al Qaeda operatives had hijacked an airplane with 100 innocent passengers aboard and was planning on crashing it into the U.S. Capitol or a crowded Super Bowl stadium, he has the power to order that the plane be shot down without giving the terrorists (or their innocent victims) a day in court before a federal judge. If he has reason to believe that a nuclear device has been smuggled into Washington, DC, and is being driven to the Capitol Building, he may order that roads be blocked and vehicles searched without first awaiting new legislation or a judicial hearing. He may not violate the Constitution, but in this context such searches would not be “unreasonable.”

Is there a chance of abuse? Certainly. But any egregious abuse would soon become public, as even if all of the operators conspired to maintain secrecy there are approximately 100 employees in the NSA Office of Inspector General monitoring such operations.

People may avoid some warrantless government searches by refusing to fly or electing not to enter a congressional office building to exercise their constitutional right to petition their government for redress of grievances.

Presumably they could avoid other lawful searches by not using telephones or riding in automobiles. The searches would nevertheless be unconstitutional if they were “unreasonable.” But the Supreme Court has repeatedly upheld warrantless searches and seizures in non-law-enforcement settings where the governmental interest outweighs the privacy interests.

Why does the President need this power? As the Framers repeatedly recognized, he must be able to act with “speed and dispatch” to protect the nation. The average FISA application is two inches thick and takes days to prepare when we may only have minutes to prevent an attack. FISA prevented the FBI from examining Moussaoui’s laptop, and General Hayden says it kept NSA from discovering the 9/11 hijackers. By usurping presidential constitutional powers, Congress is the lawbreaker.

the ACLU is on the side that is against the Founders and Original Intent(not to mention actions) and on the side of the “Living Document” crowd.

amazingly cranks on the Rockwell-Libertarian wing are on the side of Secret Courts(FISA).

jp on December 22, 2008 at 3:56 PM

the irony of phone calls, is originally there was no privacy. They were open circuit, the closed circuit is something that came along later on and created ‘privacy’.

also a interesting part of that debate

Of course Professor Chemerinsky is correct that the President may not violate the Fourth Amendment in war or peace. But the Fourth Amendment prohibits “unreasonable” searches and seizures. Monitoring enemy communications during authorized war is hardly “unreasonable” – every wartime president has done it. The Supreme Court has identified several “exceptions” to the Fourth Amendment’s warrant requirement, and all four courts of appeals to decide the issue have recognized the existence of a Fourth Amendment exception for foreign intelligence electronic surveillance – as has the unanimous appellate court established by FISA itself.

Ten years before FISA, Congress by statute recognized the president’s independent constitutional power in this area. It is true the Supreme Court has never officially affirmed such a power, but it has also never formally recognized the constitutionality of airport passenger searches. In both cases, there was no need to do so since all of the circuits to decide the issue agreed. The Supreme Court has had at least six opportunities to address this issue. Were the Constitution being violated, one might think it would have granted certiorari at least once.

Professor Chemerinsky seems shocked at the thought of unchecked presidential power over foreign affairs. I have shown that Federalists 64 recognized presidential discretion over foreign intelligence. Washington noted that Madison and Chief Justice Jay agreed with Jefferson that the Senate had “no constitutional right to interfere” in diplomatic matters beyond the narrowly-construed specific negatives entrusted to it. John Marshall in Marbury explained that “there exists, and can exist, no power to control” presidential discretion over foreign affairs. Curtiss-Wright reaffirmed the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations” in 1936.

jp on December 22, 2008 at 4:06 PM

Is that from the series 24 or actually for real? Thanks for my daily laugh.

LevStrauss on December 22, 2008 at 4:08 PM

its for real, read some real history and real Constitutional Original ism instead of crackpots like Lew Rockwell sometime to cleanse the mind of ignorance.

jp on December 22, 2008 at 4:16 PM

I get the impression that the Democrat politicians understood this, but were not interested in explaining it to the people who vote for them.

Count to 10 on December 22, 2008 at 4:21 PM

Its all political, and they used stuff like this to hurt GOP and help the Dems win power. They know how to play our Useful Idiots(the Rockwell clique), stir up wild emotions and hatred via media and now they have the power of the Internet to push this crap to millions. Without the other side of the story accurately getting out.

nobody is listening to our phone calls, but when the Feds do with International Terrorist Surveilliance it is securing our Liberties we have. The obvious with Life and National Security(the ultimate Civil Liberty) as well as our Economic Liberties, given the economic cost of terrorist attacks.

as the saying goes(and anti-Govt. no matter what idelogues don’t understand)…..”Can’t scream Fire in a crowded theater”. i.e. Liberty only goes so far as the point it infringes on others Liberties.

jp on December 22, 2008 at 4:26 PM