No, The President doesn't have the right.

Anyone interested in whether the President has the right to pursue the 'war on terror' in any manner he chooses, Congress and the Courts to the side, might want to take a look at Why the NSA Surveillance Program is Unlawful. It's a letter from some fairly big-name legal eagles, including a former Director of the FBI, if things like that impress you, as they do me.

Comments

[TM Lutas]

This post is pure argument from authority. The fact is that we are guessing, but do not know for sure who is being surveilled and some of those guesses border on the hysteric. The Kos kids are breathless in their outrage at how Bush used the NSA to wiretap Kerry. It's that out of control.

There is a surveillance program. It's apparently stopped some significant plots. Some of the intercepts included conversations where one terminus was in the US. Those thus identified as agents of a foreign power continued to be surveilled under the same program. There is a real danger of "knee bone connected to" type thinking creating a vast sea of warrantless wiretaps. I don't think that's happening, in part because hearings are coming and President Bush is out there publicly talking about how limited these taps are. I don't think Bush and his speechwriters are that bad at politics to set themselves up so badly.

It's very much a grey area in my book because I'm not entirely sure that the portions of FISA that criminalize the NSA intercepts are constitutional. What makes a domestic intercept legal on day 14 of a war but not on day 16? Presumably, the intent of Congress was to enable the quick rooting out of fifth columns in the US in order to "dress our lines" and reestablish safe zones. This war has no lines. Al Queda does not buy into westphalian warfare with its lines and safe zones. It sucks but it's true. By allowing warrantless searches, FISA establishes that Congress has no problem with wartime domestic surveillance without warrant. Congress assumed that the need for such surveillance would be brief and there we have a potential bit of unconstitutionality. They are micromanaging the conduct of the war and dictating tactics to the Commander-in-Chief in his conduct of war which seems to me to be a violation of the separation of powers.

Is the 15 day limit constitutional? What grants Congress the right to either authorize the warrantless wiretaps or limit them in time. We're eventually going to find out.

[David Sucher]

Yup, TM, so it is....just one of those easy no-work "instaLinks," heh! Each reader should judge whether the letter makes sense; that's why I simply linked to it -- & much of its argument is just a little too technical for me to want to offer a casual critique.

And since your comment doesn't even mention the letter, I assume that you haven't read it. So what say you take a look at it and give us a close-reading?

But let me say it again:
• if the President thinks that Congress gave him free-rein to fight the war on terror in any way he chose, it's news to Congress;
• if the Presidnet thinks that in warfare there are no limitations on his power then he should get new lawyers as that is not what the Constitution says;
• if the President thinks the laws are hindering the war on terror, he should go to Congress and propose that the laws be changed.

[kieth nissen]

Thank you TM Lutas. Some of us legal illiterates wonder how it can be that a President
has the authority to use nuclear weapons (in war or in time of perceived attack) and
deliver missiles to Sudan and Afghanistan (lately, Pakistan) yet does not have the authority
to wiretap citizens of this country. Maybe no one else either.

Correct me if I am wrong but critics of the President have not, so far as I have noticed, insisted that
the wiretap, such as it is, cease immediately. Maybe the ACLU. My point is that advocating the temination
of the wiretap (I prefer data-mining, assuming a degree of impersonality that may not be entirely accurate) the critic must take a position. A position that will have consequences...consequences that may be disastrous.

[David Sucher]

TM and Kieth,
Let's put aside the specifics of data mining (or whatever it is that they have been doing) and look at the larger picture.

Let's assume for the sake of discussion that there is a war on. My question to you is whether there are any limits to Presidential power? For example, can the President — now — close down a newspaper becaue he _believes_ (even sincerely) that the articles it prints give 'aid and comfort' to the enemy. (We are nor even talking here of disclosing some sort of "secret" information.) Do you give the President the power to simply send in troops to a magazine and stop it from printing because we are "at war?" It seems that according to your perspective the answer would be "yes." Simple question.

[kieth nissen]

I don't know the answer to that. I don't know what the law says. But the contrasts I mention
between what appears to be Presidential power to send a missile to some foreign country with
no declaration of war, no announcement of any kind, for the purpose of furthering our national
security.....contrasting this undeclared warmaking power with the challenge to executive ordered
wiretaps just seem weird.

If the critics of the President are correct, and I think they probably are, there's a real imbalance there.

Victoria Toensing (sp?) has a column in today's WSJ enumerating the difficulties of getting a legal,
court-sanctioned wiretap and the time involved.

President Roosevelt had the power to quarantine thousands of Japanese Americans in 1942. Has the Constitution changed in the last 63 years? It just seems to me that wiretapping is of small consequence compared to the missiles and other warmaking powers the President apparently has.

So, it seems to me, this challenge to presidential power is poorly considered and, if it succeeds it will damage our natiional security for no good reason.

Closing the newspaper as you note above would be clearly prohibited by the bill of rights. So the newspaper publisher would have a pretty good case, right?

But in a war, especially a war we might lose, security concerns would probably trump even that. They'd close the newspaper and argue about it until the war was over.

[David Sucher]

Kieth,
The war may last a hundred years.
You are willing to allow a dictatorhsip for the duration?

[TM Lutas]

David Sucher - Actually I had read the letter. I wanted to open with the argument from authority because I wanted to close off the end-game that argument allows "I'm just putting out a letter by some very big names" thus allowing you to get two bites at the apple with my side having to deal with the letter's arguments and then your own as two separate burdens.

from the letter:

We do not dispute that, absent congressional action, the President might have inherent constitutional authority to collect "signals intelligence" about the enemy abroad. Nor do we dispute that, had Congress taken no action in this area, the President might well be constitutionally empowered to conduct domestic surveillance directly tied and narrowly confined to that goal--subject, of course, to Fourth Amendment limits.

Even the letter writers admit that there are serious constitutional arguments on the other side. They just don't admit that Congress might be seriously restrained by these Constitutional grants of power. What the Constitution giveth, the Congress can't always take away. They might have the right but they might not. Thus you get to my line that we just don't know enough yet and that things remain grey.

I've maintained previously that impeachment is the proper remedy for over-reaching. I can conceive of circumstances where the newspaper should be closed down (they're passing enemy coded messages to strike in their acrostic with the knowledge of ownership, for instance) and I can certainly think of lots of circumstances when the closure would be completely wrong. So what's the proper remedy? Toss the President out if what he's doing is unjustified and stand for election based on your actions in a year or two. That gets you President Cheney if you do it over the next few years and a chastened national security infrastructure less willing to engage in novel efforts to protect the country. That last part might be a good thing but you'd really have to explain it to me why this wouldn't be a rerun of the Church Committee fiasco.

kieth nissen - Actually the distinction is a bit more arbitrary. Nobody would say that it would always be illegal to listen in on Johnny Walker Lindh as he wormed his way into the Taliban. What is being asserted is that it would be illegal if the intercepted conversation would have occurred when he was at his parent's house in California and there were no warrant. If Lindh was in Pakistan, he's generally recognized to have no protection.

[David Sucher]

TM and Kieth,
I feel a bit better about your responses -- i.e. give them a bit more credibility -- if you could place this surveillance busines within the context of overall Presidential power and where it stops in war time. But you don't take up that big question so I'm sorry but you haven't made much progress in persuading me.

(And TM you conveniently ignore the phrase "Fourth Amendment limits" in your quote, which really negates your use of the quote.)