Monday, December 19, 2005

More on the NSA Wiretapping of US Citizens

Byron York of National Review has an interesting article on the process of getting a warrant through the FISA court. Assuming York's article is accurate, it's actually a lot more cumbersome than the New York Times article leads you to believe in getting a warrant through the FISA court. That being said, I don't think that excuses Bush's decision. If getting a warrant through the FISA court is really that burdensome, why hasn't President Bush and Congress done more to speed up the process? It's not in dispute that if the NSA wanted to monitor purely domestic communications, they would need a warrant through the FISA court. I think being able to quickly monitor purely domestic communications between two individuals with ties to a terrorist organization is just about as important as monitoring communications that go from the U.S. to abroad that involves individuals with ties to a terrorist organization yet neither the President or Congress has taken sufficent action to cut down on the red tape of the FISA court.

In addition, the bureaucracy of getting a FISA warrant does not allow the President to exceed his authority, which it appears he has done here. Attorney General Gonzales in a press conference today, cited the Authorization to Use Military Force (AUMF), as the statue giving President Bush the power to authorize warrantless monitoring. Yet it appears that it was not Congress' intentions to give President Bush that power when it passed that resolution. According to Gonzales, "We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." (It should be noted that this form of warrantless wiretapping is illegal under FISA since the monitoring would involve U.S. citizens unless the President has the power to authorize such monitoring through another statue or a provision in the Constitution.) Another argument cited in Gonzales' press conference was that Article II of the Constitution gives the President inherent authority to conduct such warrantless monitoring. According to Orin Kerr at Volokh Conspiracy, there's not a lot of case law to support that argument:
So the argument, as I understand it, is that Congress has no power to legislate in a way that interferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.

I have been unable to find any case law in support of this argument. Further, the argument has no support from the cases cited in the government's brief [see the government's supplemental brief filed in the FISA Court of Review]. In all three of those cases'-- Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitions in this area cannot bind the Executive branch.

While I think President Bush lacked the authority to do what he did, you won't hear me call President Bush evil or compare him to Hilter like some on the Left are doing right now. I believe President Bush cares very deeply about protecting the lives of the 300 million people that live in this country. I just think he went for a quick and easy solution without fully comprehending the legality of his actions.