Thursday, December 29, 2005

The NSA Won't Go Away!!!!

My point throughout the whole NSA surveillance kerfuffle has been that, if the FISA is attempting to limit the President's Article II power to conduct warrantless surveillance (for the purpose of national security/foreign intelligence) such a restriction would be powerless and unconstitutional.
The analogous situation would be if Congress attempted to restrict the Supreme Court's ability to review issues relating to constitutional rights. Such a law would be void and stricken.

FISA has not been stricken, however, because the federal courts do not view the law to act in this manner. Rather, they view the law to allow the executive to simply attain warrants for their searches under varying circumstances.

The Federalist Society has had a debate on this recently.

Professor Kerr at Volokh's Conspiracy believes that Levy is correct and Rivkin is wrong.

Edit: I misread the article at first. However, I agree with Rivkin, mostly.

I quote Rivkin:
Because, in my view, the 2001 Congressional authorization to use force squarely buttresses and supports the President's use of Commander-in-Chief powers, the current situation involves the use of Presidential powers at the zenith. However, even if one assumes that Congress has done something to prevent the President from using warrantless electronic surveillance techniques to gather intelligence about Al Qaeda and affiliated entities, such an effort would trench upon the President's core constitutional authority and would, therefore, be null and void.

As I have stated, FISA is really an enhancement to the executive's power.


As far as your point about the PATRIOT Act is concerned, I read it to mean that, in your view, there is somehow some tension between my interpretation of the President's inherent constitutional power to gather battlefield intelligence and the Administration's relentless efforts to cause Congress to enact, shortly after September 11, the PATRIOT Act and its subsequent efforts to cause it to be reauthorized. However, in my view, the reverse is true; it is precisely because I construe the proper ambit of the President's Commander-in-Chief power quite modestly, limiting it to the collection of the battlefield intelligence (i.e., intelligence about the plans and dispositions of enemy belligerents), that the efforts by the President to bolster the legal framework for gathering domestic terrorism-related intelligence through the enactment of the PATRIOT Act make perfect sense. It is, of course, entirely proper to argue that, in the time of war, the President can rely on his inherent constitutional authority to gather all sorts of foreign intelligence, particularly as it bears upon possible
terrorist attacks on American soil. The primary reason the PATRIOT Act, or for that matter, FISA, are needed is to ensure that the information gathered by the Executive Branch can be properly introduced into evidence, in case a criminal prosecution is being sought.


I recall reading that the defense attorneys for some alleged Al Qaeda operatives plan to challenge the surveillance, so we shall soon see what the federal courts think of this particular issue.

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