Legality of the Wiretapping Order

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I do not know all the details of Bush's wiretapping order, which makes it hard to discuss.

However, a few facts are clear. Namely: President Bush signed an order (many times) to give power to the NSA that Congress has expressly forbidden.

What do we do with those facts? This post is informative.

It seems likely that the act itself -- warrantless searches -- does not violate the Fourth Amendment. I tend to think it doesn't, because there are exceptions in the law for warrantless searches in regard to national security, as well as in regard to border searches; if these were exclusively limited to international calls, for the purpose of national security, it will be difficult to make the case that the President violated the Fourth Amendment.

It seems quite clear, however, that Bush's order went against written federal law, specifically FISA. It says Bush can't do this, and he did it.

I do not buy the argument that the Authorization to Use Military Force in Iraq grants the President the authority to do this wiretapping, and even if it did, the PATRIOT Act -- along with its modifications to FISA -- came later, and should have also then modified FISA to allow this to be included. So that's just not flying for me.

But what is not at all clear to me is whether Bush has the authority to do what he did, regardless of what Congress says. The case the administration seems to be that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

That argument is not persuasive to me, because I do not see the Constitution grant that inherent authority. But I have no idea whether the past 216 years or so of law has recognized this in some way.

Another thing that confuses my thinking is the notion of executive orders. These things are effectively the President bypassing Congress to make laws. I don't know what gives the President such authority, what its restrictions are, and how it would apply in this case.

As far as I am concerned, the President does not have, and should not have, any real authority to make law (which is what he did here, by making an order that opposed an existing law). Even in an emergency, his executive orders should be immediately subject to Congressional approval, as soon as is reasonably possible. I believe in the supremacy of Congress, as did the Founders.

The bottom line is that I think what Bush did was wrong, and should be illegal, and is unconstitutional usurpation of power. But then again, I think the same thing about the No Child Left Behind Act and most federal social programs, so don't read too much into this statement.

Regardless, we're not talking about my own views, but whether Bush violated the law as it is currently interpreted by our courts. And while I am basically convinced that -- given the few things I know about the program -- that he did not violate the Fourth Amendment, and that he did go against FISA, and that he did not have any congressional authority to do what he did, I am nevertheless not convinced he actually violated the law.

Note: I could not care less, in any way, at this stage, about whether this order from Bush was "necessary," for whatever that means. I am only concerned here about the legality of the order. If it is found to be illegal, then its necessity may possibly be a defense. But that's a completely separate issue at this stage, as far as I am concerned. For the sake of argument, we will stipulate that Bush believed it to be necessary for national security, but that doesn't itself make the act legal.

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This page contains a single entry by pudge published on December 19, 2005 10:06 PM.

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