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.