Tonight's NewsHour with Jim Lehrer features a fascinating debate between two legal experts, David Cole from the Georgetown University Law Center, and Bradford Berenson, former Associate White House Counsel, regarding President Bush's secret executive order permitting the NSA to spy without judicial oversight on communications involving "U.S. persons" [citizens and legal permanent residents, and certain others] within the United States. A major element in the discussion is FISA, the Foreign Intelligence Surveillance Act, a law passed by Congress in 1978, in part because of domestic surveillance activities during the Vietnam War.
Berenson: The administration has offered several defenses, legally speaking, for what it has done. First it claims that there is no violation at all of the statute at issue, the Foreign Intelligence Surveillance Act, because another act of Congress, the resolution authorizing the use of military force against al Qaeda, implicitly gave the President the power to collect intelligence against al Qaeda, regardless of what FISA may otherwise have imposed by way of limitation. But even if that weren't true, what the President, the Vice President, and the Attorney General have said is that the President has inherent authority given to him directly by Article II of the Constitution to take measures to defend the country that include gathering foreign intelligence, and that Congress couldn't, even if it wanted to, impair that authority or take it away or limit it or regulate it, and that this [secret eavesdropping order] falls squarely within that authority.The first claim is utterly specious on its face, and would be laughed out of any court in the nation. FISA says specifically that the President and the Attorney General can authorize warrantless electronic eavesdropping ONLY if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party" [50 USC 1802 (a)(1)(B)]. The authorization to use force did not "implicitly" toss out that law; the claim is beyond absurd.
The claim that Congress cannot regulate the President's authority to conduct war is equally absurd, especially since we are NOT in a state of war. No declaration of war has been made by the Congress. Furthermore, the administration is engaging in an insanely broad reading of Article II, Section 2, of the Constitution:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States ...while utterly disregarding several of the clauses of Article I, Section 8:
The Congress shall have power ... to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; ... to make rules for the government and regulation of the land and naval forces; ... and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.It is utterly impossible to construe those two passages in such a way as to state that the Congress has no power to regulate the President's conduct of war.
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