Former GOP presidential candidate du Pont falsely suggested "America's judicial system" supported warrantless domestic surveillance
SUMMARY: Defending President Bush's domestic spying program in his January 17 column, Pete du Pont claimed that "the federal courts have consistently ruled that the constitution gives the president the authority ... to acquire foreign intelligence without warrants or other approvals." But, contrary to his suggestion, these federal court rulings do not address the legality of Bush's authorization of the National Security Agency to conduct warrantless domestic surveillance.
In defending the Bush administration's warrantless domestic surveillance program in his monthly column for The Wall Street Journal's OpinionJournal.com on January 17, former Delaware governor and onetime Republican presidential candidate Pete du Pont claimed that "the federal courts have consistently ruled that the constitution gives the president the authority ... to acquire foreign intelligence without warrants or other approvals." This statement, however, does not address the issue at hand: the legality of the Bush administration's authorization of the National Security Agency (NSA) to conduct warrantless domestic surveillance -- an apparent violation of the 1978 Foreign Intelligence Surveillance Act (FISA). The court cases du Pont cited in defense of his argument do not address this point -- indeed, the federal courts have yet to address the issue.
In his January 17 OpinionJournal.com column, du Pont wrote:
America's judicial system has reached the same conclusion. The Supreme Court's 1972 decision in U.S. v. U.S. District Court (known as the "Keith case") held that the Fourth Amendment's "unreasonable searches and seizures" clause applied to domestic wiretapping, but refrained from concluding that it restricts "the president's surveillance power with respect to the activities of foreign powers within or without this country."
In 1980 the Carter administration argued in the Truong case that the government could conduct domestic, warrantless wiretaps of conversations between a U.S. and a Vietnamese citizen who had been passing on U.S. military intelligence to the North Vietnamese. The Supreme Court agreed.
In 1982 a federal court of appeals ruled that "the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agent."
And in 2002 the FISA court said that the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."
Of the cases du Pont cited, three of them -- the "Keith case," the Truong case, and the 1982 appeals court case -- dealt with surveillance that took place before FISA became law and, therefore, could not address FISA requirements. Additionally, they did not substantively address presidential authority with regard to warrantless domestic surveillance. As Media Matters for America noted, a report by the nonpartisan Congressional Research Service (CRS), released January 5, confirmed that no court has yet addressed the legality of the conduct the Bush administration allegedly engaged in:
Court cases evaluating the legality of warrantless wiretaps for foreign intelligence purposes provide some support for the assertion that the President possesses inherent authority to conduct such surveillance. The Court of Review, the only appellate court to have addressed the issue since the passage of FISA, "took for granted" that the President has inherent authority to conduct foreign intelligence electronic surveillance under his Article II powers, stating that, "assuming that was so, FISA could not encroach on that authority." However, much of the other lower courts' discussions of inherent presidential authority occurred prior to the enactment of FISA, and no court has ruled on the question of Congress's authority to regulate the collection of foreign intelligence information.
The 1982 federal appeals court case du Pont cited did not rule on the legality of the NSA's collection methods at all. What du Pont actually quoted was a 1982 New York Times article that wrongly reported that the U.S. Court of Appeals for the 6th Circuit had ruled that the NSA "may lawfully intercept messages between United States citizens and people overseas." Du Pont and the 1982 Times article were referring to the ruling of a three-judge panel of the 6th Circuit court regarding a 1980 lower court ruling on the constitutionality of an FBI investigation into Abdeen Jabara, a Michigan lawyer of Arab descent. U.S. District Court Judge Ralph Freeman found * that the FBI and the NSA violated Jabara's Fourth Amendment protection against "unreasonable searches and seizures" when the FBI requested -- and the NSA furnished -- intercepts of Jabara's international electronic communications. The judge, however, did not rule on whether NSA surveillance alone violated the Constitution and clearly distinguished NSA surveillance alone from what he viewed as the Fourth Amendment violation over the transmission of the NSA's findings to the FBI.
The 6th Circuit court overturned Freeman's ruling on October 21, 1982, but also did not rule on the legality of the NSA surveillance. The court stated that Jabara did "not even contend on this appeal that the interception by the NSA violated his fourth amendment rights," and the court therefore took "as a given that the information was legally in the hands of the NSA."
Nor did the 2002 FISA court of review ruling du Pont cited address the legality of the NSA program. While the FISA court of review did state that the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance," the real question is whether Bush, as president, has the constitutional authority to authorize warrantless surveillance in the United States of U.S. citizens and legalized immigrants, notwithstanding FISA's restrictions -- a question the court did not address. Moreover, as the CRS noted in its report, the 2002 FISA court decision relied on pre-FISA rulings on electronic surveillance, making its statements about presidential authority less relevant:
In the wake of FISA's passage, the Court of Review's reliance on these pre-FISA cases or cases dealing with pre-FISA surveillances as a basis for its assumption of the continued vitality of the President's inherent constitutional authority to authorize warrantless electronic surveillance for the purpose of gathering foreign intelligence information might be viewed as somewhat undercutting the persuasive force of the Court of Review's statement.
*The link is to a June 13, 1979, opinion issued by Judge Freeman, which granted the plaintiff's motion for summary judgment in part and ordered further briefing by the parties. The 1979 memorandum opinion was followed by the judge's final disposition of the case in April 1980.
...that duPont was not and Bush should not have been placed in the positions they aspired to because they did not aspire to raise the office and country, but to ruin them.
- Congress's authority to regulate the collection of foreign intelligence information. - mmfa
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The niggling efforts by mmfa to promote strawman arguments concerning the president's authority for gaining foreign intelligence is waning fast.
Congress does not have the authority to dictate wartime tactics to the president...he is the commander-in-chief....and has the authority and responsibility to prosecute the war as he sees fit. His success at preventing any attacks in the US since 911 is the real sticking point with the howling leftwing.
American's rights have not been trampled. If you are hauled into court on a domestic civil or criminal matter...evidence will be thrown out that was obtained by a warrantless search or warrantless surveillance.
The liberal outrage is very transparent...playing partisan politicals with our national security...another losing platform for liberal democrats.
Just answer this; If the surveillance was legal, why didn't they get the warrants that can be obtained after the fact?
Bush does NOT have this "inherent power" as the CiC.
They are afraid some late night, men in black ninja suits will show up, break into their homes, load them on a black helicopter and spirit them away like Padilla. BTW, what ever happened to the couple that taped the conversation with Grinrich in the late 90's and turned the tape over to the beloved Rep Jim McDermott? Talk about illegal "wiretapping"!!
It's not likely that people will be picked up in such a manner, but you (and Mills, always it seems) miss the point quite broadly. If the president can order eavesdropping without any oversight or basis of probable cause, and can also declare someone an "enemy combatant" and imprison them without trial or evidence, then you do the math. Now the issue is not whether this has happened, or is likely to happen. The issue is that it could happen. We have built a system that prevents governmental invasion and violation, as much as that is possible. There is no need to change it, and leave it open to the possibilities of abuse.
Of course, conservatives argue that there will be no abuse, that we should just trust. But if the founding fathers thought that was a good idea, they could have just established a monarchy. Ever wonder why they didn't do that?
The other argument is "what have you got to hide?". Right. I'm sure conservatives would be just fine with the idea of the government listening in, reading their mail and e-mail, searching their homes, as long as it kept them "safe". I bet!
Mills, Oscar, Bush, Cheney, Gonzalez and the rest of the defenders of warrantless wiretaps seem to delight in misrepresenting the objections to the policy. I think it speaks volumes that none of them address any genuine concerns.
Opponents of warrantless wiretaps are not choosing privacy over security. To say so is a lie. There is NOTHING to support the case that warrantless wiretaps offer any additional security. It’s been well established that warrants are extremely easy to obtain for tapping suspected terrorists and those they contact.
It’s also an outright lie to say that opposition is partisan politics. There are many politicians on both sides of the aisle who would be opposed to warrantless wiretaps at any time and by any President.
Opponents of warrantless wiretaps fully and completely support the wiretapping of suspected terrorists and their contacts. The warrant process doesn’t interfere with that in the least.
The worst thing the defender’s of Bush’s policy do is to understate the risks of permitting warrantless wiretaps. We don’t know that nobody’s rights are being trampled. The issue is that we CAN’T know without oversight. Why is it so hard to see the potential for abuse? Even if you trust this President, it’s not hard to imagine another one using the power to dig for dirt on opponents, create blackmail lists, look for campaign strategies of opponents and many other abuses of power.
It’s simply not a power any President needs or should ever have.
Remember, that with our Rightwingers such as Leatherhelmet and Mills, you are dealing with people who place no VALUE on freedom, liberty, LAW, or democracy.
You are dealing with people who wish to be DOMINATED, to invest all their trust, unquestioningly, in a monarch who promises to "keep them safe". Since they are in constant fear, they gladly abdicate everything that makes America great, in order to support unlimited powers of a Commander in Chief ... as long as it is George W. Bush.
Your reasoned arguments are logical and apt, but only apply to minds which accept the REALITY of America, as our founders set it up, and the Constitution.
When dealing with those who have NO desire to adhere to these things, you are doomed to be frustrated, because your "world view" is simply cast aside as insane, or quaint, or "weak" in some way.
Your argument comes from PRIDE and STRENGTH, while theirs comes from fear and defeat. Think how odd it is that the Rightwing claims the "terrorists HAT US for our Freedom" ... and then they run headlong into giving UP our freedom. By their own lights, they are surrendering to terrorism.
I know the president points to the use of force provisions passed by Congress soon after 9/11, and I don't mean to be flip here, because people are dying in Iraq. But technically we aren't at war with anyone, are we? Has there been a good, old-fashioned declaration of war passed in the past few decades? And if not, why are Attorney General Gonzales and other members of the administration talking about precedents from when we are at war?
I've had the same question for a while.