Court Supports President's Right to Warrantless Wiretapping

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A lot of people have been chatting about how the court smacked down Bush this week, with strong and unequivocal language. And it did. But another court, one much closer to the situation, appears to me to disagree.

As the Wikipedia article correctly notes, in 2002 the FISA Court of Review "also noted (but made no judgment regarding) 'the President's inherent constitutional authority to conduct warrantless foreign intelligence surveillance' which relates to part of the government justification in the NSA warrantless surveillance controversy."

But the Court went further than merely noting the inherent authority; it said Congress could not limit that authority: "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." That's pretty strong language, too.

Again, I do not know if the President has this inherent authority, or whether Congress can encroach on it. And if I had to make the choice, I'd say Congress should be able to so "encroach." But I want to find out what the law, what the Constitution, requires here, not what I prefer, and legal minds far greater than mine -- or, likely, yours, if you're reading this -- disagree.

I plan to read this week's decision carefully at some point, but I am far more interested in what Roberts, Scalia, Thomas, Alito, Kennedy, Breyer, Souter, Ginsberg, and Stevens (hey, I did that from memory!) have to say. And I think we will find out.

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<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

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