Pat Leahy's reaches for unconstitutional application of FISA

Robert Turner:

I have never met Judge Michael Mukasey, and I have no strong feelings on who should be our next attorney general. But after four decades studying and writing about national security aspects of our Constitution, I believe Congress and the American people must understand that some of the issues raised in Mr. Mukasey's confirmation hearings are far more complex than they may initially appear.

Take, for example, Sen. Pat Leahy's question to Mr. Mukasey about whether the president has the power to violate the Foreign Intelligence Surveillance Act (FISA). I know that statute well, having worked in the Senate when it was enacted in 1978, and later serving as the senior White House lawyer under President Reagan charged with overseeing the implementation of FISA and other intelligence laws.

The real issue here is not whether the president is "above the law," but rather which "law" he must see "faithfully executed" when there is a conflict between the Constitution and an inconsistent statute. His highest duty, I submit, is to the Constitution itself.

In 1803, Chief Justice John Marshall declared in Marbury v. Madison: "an act of the legislature repugnant to the Constitution is void." From the earliest days of our history until FISA was enacted, it was understood by all three branches that the Constitution had left the president (to quote Federalist No. 64) "able to manage the business of intelligence as prudence might suggest."

When Congress passed the first wiretap statute in 1968, it expressly declared that nothing in it would limit "the Constitutional power of the President" to collect foreign-intelligence information. Every administration from FDR to (and including) Jimmy Carter engaged in warrantless foreign-intelligence wiretapping in the belief that this was one of the "exceptions" to the Fourth Amendment's warrant requirement. Others include border searches and searches of commercial airline passengers and their luggage (not to mention the requirement, imposed by Congress, that citizens entering a congressional office building to exercise their constitutional right to petition their government for redress of grievances must submit to a warrantless search absent the slightest probable cause).

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The Foreign Intelligence Surveillance Court of Review (composed of federal appeals court judges) noted, in a unanimous 2002 opinion, that every federal court to decide the issue held the president has constitutional power to authorize warrantless foreign-intelligence electronic surveillance. The opinion added: "FISA could not encroach on the President's constitutional power."

The Supreme Court has had at least six opportunities to limit presidential power in this area. In the 1967 Katz case that first required a warrant for wiretaps, the Court expressly exempted "national security" wiretaps from its holding. When it required a warrant for national security wiretaps of purely domestic targets in 1972, it exempted electronic surveillance of the "activities of foreign powers and their agents" in this country. On four other occasions it declined to hear cases on appeal where it had the opportunity to impose a warrant requirement on foreign-intelligence electronic surveillance.

Much contemporary debate over presidential claims of power to ignore "laws" fails to appreciate the modern congressional practice of enacting flagrantly unconstitutional statutes....

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It is Pat Leahy who is being unfaithful to the law with his insistence that the President is bound by an obviously unconstitutional FISA law. The House Democrats are even worse. Their concern for the privacy rights of our enemies is just weird though unfortunately it is not unusual for them. Any communication by our enemies with anyone whether they are in this country or not should be intercepted without concern about a warrant. No one communicating with our enemies should have any expectation whatsoever of privacy.

In the brokerage business, supervision of employees requires that all mail be opened and reviewed before it is distributed. There are no exceptions for personal mail and employees are told that if they don't want personal mail read, they should not have it sent to their office. The purpose of this requirement is to keep employees from making unauthorized transactions with customers and to keep them from hiding any customer complaints. I have arbitrated cases where unauthorized activities with customers have costs firms millions of dollars because the firm failed to catch the activity. We should also consider the consequences of failing to catch al Qaeda's next attack and weigh that against any perceived concerns about al Qaeda's privacy rights.

Walter Williams examines how Congress routinely evades constitutional limitations on its power.