California Conservative

Reuters’ Deborah Charles is reporting that the Justice Department is initiating an investigation into who leaked the “highly classified” information about the warrantless wiretapping program. I’m only surprised that it took this long.

A 1978 law, the Foreign Intelligence Surveillance Act, makes it illegal to spy on U.S. citizens in the United States without the approval of a special, secret court. Bush secretly gave the NSA authority to intercept communications without such approval.

I’ve had 2 questions gnawing at me that I’m attempting to get answered from a couple contacts I’ve got, namely, did Article II of the Constitution give the president power to surveil communications without warrants? If he did, wouldn’t that trump any restrictions that FISA might attempt to put on those powers? When I find the answers to those questions, I’ll post an update. If there’s an attorney who reads this, I’d welcome your input into this.

It seems to me that everyone’s pointing to FISA as the sole governing principal involved in this issue. My question is: What was the governing principal before FISA was enacted in 1978? Did the President have the power to surveil foreign communications without a warrant before FISA and what authority granted him that power?

The reason I ask that is this: If he didn’t have that authority before FISA, then how could he carry out his oath of office? After all, it doesn’t suggest that he protect us “from all enemies, foreign or domestic”; it mandates that he do that. If he couldn’t get a warrant on these wiretaps, how could he protect us from those who secretly tried to harm our nation?

UPDATE: AJ Strata has a great insight into the issue of FISA, warrantless wiretaps and the Fourth Amendment that’s must-reading. Here’s the main quote from the article:

Several types of search and seizure have long been considered appropriate under the Fourth Amendment, even when not supported by warrant. In particular, the principle of “hot pursuit” has been applied, where, if the police are chasing a fugitive and they see him take refuge in your house, they can enter your house without a warrant and make an arrest. In addition, searches of your person and effects at airports, courthouses, and other public buildings are considered reasonable because of the security threat, and because you’re voluntarily entering the area that requires the search. So, warrantless searches are legal if they’re considered “reasonable.”

Now, if you re-read the Fourth Amendment, you’ll see that it applies to your “person, house, papers, and effects,” but not to your communications. However, in 1967, an activist Supreme Court twisted the constitution to make it say what they thought it should say. Since then, warrants are required for some wiretaps. It seems that the Supremes assumed that the Founding Fathers didn’t mention communications in the Fourth Amendment because there were no communications in 1789, not realizing that the Constitution expressly authorized Congress to set up the Post Office without making mail secure from government snooping. Be that as it may, in the 1967 case, the Supremes noted that warrant requirements do not apply to issues of national security.

Cross-posted at LetFreedomRing

This entry was posted on Friday, December 30th, 2005 at 1:45 pm and is filed under Author: Gary Gross, Homeland Security, Law, Media, Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.