December 27, 2005


Unwarranted Complaints (DAVID B. RIVKIN and LEE A. CASEY, 12/27/05, NY Times)

[I]t is highly doubtful whether individuals involved in a conflict have any "reasonable expectation of privacy" in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself - anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.

Even if Congress had intended to restrict the president's ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties. As the FISA court itself noted in 2002, the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

In this instance, in addition to relying on his own inherent constitutional authority, the president can also draw upon the specific Congressional authorization "to use all necessary and appropriate force" against those responsible for the Sept. 11 attacks "in order to prevent any future attacks of international terrorism against the United States." These words are sufficiently broad to encompass the gathering of intelligence about the enemy, its movements, its abilities and its plans, a core part of the use of force against Al Qaeda and its allies. The authorization does not say that the president can order the use of artillery, or air strikes, yet no one is arguing that therefore Mr. Bush is barred from doing so.

The fact that the statutory language does not specifically mention intelligence collection, or that this matter was not raised by the White House in negotiations with Congress, or even that the administration had sought even broader language, all points recently raised by former Senator Tom Daschle, is irrelevant.

Overall, this surveillance program is fully within the president's legal authority, is limited in scope (involving communications to or from overseas related to the war against Al Qaeda), and is subject to stringent presidential review. The contretemps its revelation has caused reveals much more about the chattering classes' fundamental antipathy to strong government in general, and strong executive power in particular, than it does about presidential overreaching.

Posted by Orrin Judd at December 27, 2005 9:48 PM

One of the major reasons we are where we are, and people like Santa Anna, the Kaiser, and Saddam Hussein are as they were, is that our presidential war power is the power to wage war successfully.

Not only is our Constitution never a suicide pact, it will always permit,even if only in being silent among the weapons, whatever it takes to win and win quickly.

Posted by: Lou Gots at December 27, 2005 11:40 PM

It's my understanding that the purpose of the 4th Amendment (or the whole Bill or Rights, for that matter) is to constrain government power in its highly unequal relationships with its citizens and the other lawful residents of this country. Perhaps if the Leftists could explain satisfactorily why we should be limiting the government's powers to protect the same against foreign mass murderers, they might have some success in ginning up the outrage they so desire.

Posted by: Raoul Ortega at December 28, 2005 1:22 AM

Does the headline mean that everyone who writes proprietary software or a diary is evil?

Posted by: Annoying Old Guy at December 29, 2005 1:45 AM