The Spectacle Blog

On the Legality of the NSA Wiretap Program

By on 1.26.06 | 8:42AM

Congressional Democrats are convinced that the President has broken the law and trampled the Constitution. Some intellectually challenged Republicans just haven't made up their minds and are waiting for the Senate Judiciary hearings to conclude before they announce their positions.

Let me help the Republicans (as the Democrats are absolutely hopeless when it comes to the Constitution and National Security).

Article II, Section 2 states: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."

The Federalist Papers and Court precedents from the beginning of this republic have held that the President acting as Commander in Chief has the inherent power to defend the nation against foreign threats. Since before WWI, that power has been understood to encompass electronic surveillance.

Flash forward to 1976 when FISA was first being debated. Even Ted Kennedy admitted that the president had the inherent constitutional power to engage in electronic surveillance for national security purposes and "Congressional enactments cannot unilaterally dininish it."

Jimmy Carter's Attorney General, the venerable Judge Griffin Bell, noted in testimony before the House in 1978 regarding FISA that "the current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here that this does not take away the power of the President under the Constitution. It simply, in my view, is not necessary to state the power, so there is no reason to reiterate or iterate it as the case may be. It is in the Constitution, whatever it is."

Judge Lawrence Silberman said during those same hearings: "...denying the existence of any inherent executive authority is folly. If this constitutional authority exists, and I believe it does, Congress cannot legislatively repeal it."

And most recently in 2002, the unanimous FISA Court of Review in its stunning rebuke of the FISA Court stated that, "all the other courts to have decided the issue [have] held that the President did have the inherent authority to conduct warrantless searches to obtain foreign intelligence information... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

Yet again, Congressional Democrats and the wishy-washy Republicans who just want to be loved would rather have a TV mini series called a hearing than stop al Qaeda from killing us with the help of people who are living large right here in the USA.

Note to McCain and company: stop being intellectually lazy. Grab a beer, sit down in one of those comfy leather chairs in your hideaways and read the convenient little pocket Constitutions you carry around for dramatic effect. And if that isn't enough, have your numerous staff lawyers produce copies of the several court precedents and transcripts from congressional hearings cited above.

Meanwhile, if the Dems are so sure this program is illegal, why haven't they called on the President to shut it down? Hmm...

President Bush has rightly chosen to exert all the constitutional power granted to him as Commander in Chief to repel this most insidious and lethal foreign threat. Thank God he isn't backing down.

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