Unwarranted Complaints
Former Justice Department lawyers David Rivkin and Lee Casey wrote an op-ed in Tuesday’s NY Times that’s must reading if you want a clear picture of what the warrantless wiretap story is about. Let’s get started with this:
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.
This is a key paragraph because it points out why the Fourth Amendment isn’t applicable and because it points out the history of warrantless wiretaps. These are vitally important if we’re to grasp what’s happening as opposed to what’s alleged.
Indeed, it is highly doubtful whether individuals involved in a conflict have any “reasonable expectation of privacy” in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself, anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.
It’s impossible to ignore this point. The Fourth Amendment doesn’t demand warrants if the searches are deemed reasonable. It’s impossible to find a situation where interception of communications is more reasonable than in preventing attacks from foreign powers.
More to the point, the surveillance act was designed for the intricate “spy versus spy” world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy’s military operations in wartime, when information must be put to immediate use.
It’s important to note that FISA was seen as a tool for the Cold War, where time wasn’t the issue. That renders FISA useless in situations where immediate action is needed.
The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties.
Sen. Kennedy says that President Bush shouldn’t think of himself as “King George”, yet that’s what the Constitution allows in terms of war-fighting. Wartime presidents have considerably greater power as it pertains to fighting the war. That power doesn’t extend into domestic policies and for good reason.
It’s natural for Congress to get bent out of shape on this issue because they like being the people who debate what’s allowed and what isn’t. The President’s war powers aren’t subject to legislative review because they’re granted by the Constitution. The proper check to the President’s war powers is the Supreme Court, not the legislative branch. To think otherwise is arrogant.
Cross-posted at LetFreedomRing