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Jihadis and Wiretaps and Moonbats! Oh, My! -- Part 2
(Click here for some earlier related posts.)
FISA vs. the Constitution
Congress can't usurp the president's power to spy on America's enemies.
Robert F Turner
[Mr. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, served as counsel to the President's Intelligence Oversight Board, 1982-84.]
In the continuing saga of the surveillance "scandal," with some congressional Democrats denouncing President Bush as a lawbreaker and even suggesting that impeachment hearings may be in order, it is important to step back and put things in historical context. First of all, the Founding Fathers knew from experience that Congress could not keep secrets. In 1776, Benjamin Franklin and his four colleagues on the Committee of Secret Correspondence unanimously concluded that they could not tell the Continental Congress about covert assistance being provided by France to the American Revolution, because "we find by fatal experience that Congress consists of too many members to keep secrets."
When the Constitution was being ratified, John Jay--America's most experienced diplomat and George Washington's first choice to be secretary of state--wrote in Federalist No. 64 that there would be cases in which "the most useful intelligence" may be obtained if foreign sources could be "relieved from apprehensions of discovery," and noted there were many "who would rely on the secrecy of the president, but who would not confide in that of the Senate." He then praised the new Constitution for so distributing foreign-affairs powers that the president would be able "to manage the business of intelligence in such manner as prudence may suggest."
In 1790, when the first session of the First Congress appropriated money for foreign intercourse, the statute expressly required that the president "account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify." They made no demand that President Washington share intelligence secrets with them. And in 1818, when a dispute arose over a reported diplomatic mission to South America, the legendary Henry Clay told his House colleagues that if the mission had been provided for from the president's contingent fund, it would not be "a proper subject for inquiry" by Congress.
For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.
[Read on here.]
Even a blind squirrel finds some lovin' now and then and even al-NYT manages to get some something right about as often:
Unwarranted Complaints
David Rivkin and Lee A. Casey
[Rivkin and Casey are lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations.]
SHORTLY after the Sept. 11 attacks, President Bush ordered surveillance of international telephone communications by suspected members of Al Qaeda overseas, even if such calls also involved individuals within the United States. This program was adopted by direct presidential order and was subject to review every 45 days. Judicial warrants for this surveillance were neither sought nor obtained, although key members of Congress were evidently informed. The program's existence has now become public, and howls of outrage have ensued. But in fact, the only thing outrageous about this policy is the outrage itself.
The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions - areas where the Fourth Amendment's warrant requirements are applicable - but to identify and prevent armed attacks on American interests at home and abroad. The attempt, by Democrats and Republicans alike, to dismantle the president's core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.
After all, even the administration's sternest critics do not deny the compelling need to collect intelligence about Al Qaeda's plans so we can thwart future attacks. So instead of challenging the program on policy grounds, most have focused on its legal propriety, specifically Mr. Bush's decision not to follow the framework established by the 1978 Foreign Intelligence Surveillance Act.
[Read on here.]
Hat tip x 2: Power Line. Don't miss Legal (and good for you)
THE GRAY LADY TOYS WITH TREASON
Has The New York Times declared itself to be on the front line in the war against the War on Terror?
The self-styled paper of record seems to be trying to reclaim the loyalty of those radical lefties who ludicrously accused it of uncritically reporting on Saddam Hussein's weapons of mass destruction.
Yet the paper has done more than merely try to embarrass the Bush administration these last few months.
It has published classified information — and thereby knowingly blown the covers of secret programs and agencies engaged in combating the terrorist threat.
[...]
Does The New York Times consider it self a law unto itself — free to subversively undercut basic efforts by any government to protect and defend its citizens?
The Times, it appears, is less concerned with promoting its dubious views on civil liberties than with undercutting the Bush administration. The end result of the paper's flagrant irresponsibility: Lives have been put in danger on the international, national and local levels.
The ability of the nation to perform the most fundamental mission of any government — protection of its citizens — has been pointlessly compromised.
[Read the whole thing here. Hat tip: Michelle Malkin]
Rick Moran:
THE LAW OF INTENDED CONSEQUENCES
Fallout continues from the New York Times hit piece on the NSA intercept program as now the defense lawyers for terrorist suspects want to know if their clients were caught up in the government’s digital dragnet: Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.
[...]
To say that this was a predictable outgrowth of the New York Times leaking the top secret NSA intercept program is an understatement. In fact, since the Times sat on the story for a year and thus had ample time to examine all the potential consequences of publishing the information, one can only come to the conclusion that the paper’s editors wanted to throw a great big monkey wrench into the Administration’s efforts to not only monitor terrorists but prosecute them as well.
[Read the whole thing here.]
See also: CAIR AND THE MSM: ABETTING TERRORISM
SORRY, NYTIMES: AMERICA IS OK WITH NSA
Dems Pick Another Winner
2 out of 3 prefer President to do his job
Defense Challenges to NSA Wiretaps: Legal Issues
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