FISA vs. Constitution

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Atkinson, Robert" <rca53 () columbia edu>
Date: December 28, 2005 9:38:39 AM EST
To: dave () farber net
Subject: FISA vs. Constitution

Dave:

Today’s Wall Street Journal has an op-ed which suggests that is FISA,  
not the NSA interceptions, that is unconstitutional.  See:http:// 
online.wsj.com/article/SB113573858850532715.html? 
mod=opinion_main_commentaries  Some excerpts:

* * *

Space does not permit a discussion here of the congressional  
lawbreaking that took place in the wake of the Vietnam War. It is  
enough to observe that the Constitution is the highest law of the  
land, and when Congress attempts to usurp powers granted to the  
president, its members betray their oath of office. In certain cases,  
such as the War Powers Resolution and the Foreign Intelligence  
Surveillance Act, it might well have crossed that line.

* * *

I'm not saying that what the president authorized was unquestionably  
lawful. The Supreme Court in the 1972 "Keith case" held that a  
warrant was required for national security wiretaps involving purely  
domestic targets, but expressly distinguished the case from one  
involving wiretapping "foreign powers" or their agents in this  
country. In the 1980 Truong case, the Fourth U.S. Circuit Court of  
Appeals upheld the warrantless surveillance of a foreign power, its  
agent or collaborators (including U.S.citizens) when the "primary  
purpose" of the intercepts was for "foreign intelligence" rather than  
law enforcement purposes. Every court of appeals that has considered  
the issue has upheld an inherent presidential power to conduct  
warrantless foreign intelligence searches; and in 2002 the U.S.  
Foreign Intelligence Surveillance Court of Review, created by the  
FISA statute, accepted that "the president does have that authority"  
and noted "FISA could not encroach on the president's constitutional  
power."

* * *

Section 1811 of the FISA statute recognizes that during a period of  
authorized war the president must have some authority to engage in  
electronic surveillance "without a court order." The question is  
whether Congress had the power to limit such authorizations to a 15- 
day period, which I think highly doubtful. It would be akin to  
Congress telling the president during wartime that he could attack a  
particular enemy stronghold for a maximum of 15 days.

* * *

Ultimately, as the courts have noted, the test is whether the  
legitimate government interest involved -- in this instance,  
discovering and preventing new terrorist attacks that may endanger  
tens of thousands of American lives -- outweighs the privacy  
interests of individuals who are communicating with al Qaeda terrorists.

* * *

Our Constitution is the supreme law, and it cannot be amended by a  
simple statute like the FISA law. Every modern president and every  
court of appeals that has considered this issue has upheld the  
independent power of the president to collect foreign intelligence  
without a warrant. The Supreme Court may ultimately clarify the  
competing claims; but until then, the president is right to continue  
monitoring the communications of our nation's declared enemies, even  
when they elect to communicate with people within our country.









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