WHAT'S GOOD FOR MR. JEFFERSON:

Gonzales's Rationale on Phone Data Disputed (Walter Pincus, May 25, 2006, Washington Post)

Civil liberties lawyers yesterday questioned the legal basis that Attorney General Alberto R. Gonzales used Tuesday to justify the constitutionality of collecting domestic telephone records as part of the Bush administration's anti-terrorism program.

While not confirming a USA Today report May 11 saying the National Security Agency has been collecting phone-call records of millions of Americans, Gonzales said such an activity would not require a court warrant under a 1979 Supreme Court ruling because it involved obtaining "business records." Under the 27-year-old court ruling in Smith v. Maryland , "those kinds of records do not enjoy Fourth Amendment protection," Gonzales said. "There is no reasonable expectation of privacy in those kinds of records," he added.

Noting that Congress in 1986 passed the Electronic Communications Privacy Act in reaction to the Smith v. Maryland ruling to require court orders before turning over call records to the government, G. Jack King Jr. of the National Association of Criminal Defense Lawyers said Gonzales is correct in saying "the administration isn't violating the Fourth Amendment" but "he's failing to acknowledge that it is breaking" the 1986 law, which requires a court order "with a few very narrow exceptions."

Congress can't actually seize power that the Constitution grants to the executive.

Posted by Orrin Judd at May 25, 2006 1:04 PM