July 24, 2006
SIT BACK AND ENJOY IT:
Surveillance We Can Live With (Arlen Specter, July 24, 2006, Washington Post)
Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.
Of course, the beauty of it is that if the power exists it doesn't matter what the judiciary branch says either. Posted by Orrin Judd at July 24, 2006 1:05 PM
"The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review. Bush's personal commitment to submit his program to FISC is therefore a major breakthrough"
Looks like the President backed down.
Posted by: h-man at July 24, 2006 3:39 PM
I don't think he did. I think he just said some pretty words to make his opponents feel like they won something.
You might want to consider the difference between George Bush the person and George Bush the POTUS.
Posted by: ray at July 24, 2006 7:52 PMCongress acknowledges that if the court turns down this program he can just circumvent the court. It's a simple concession that neither the legislative nor the judiciary have a legitimate constitutional role here.
Posted by: oj at July 25, 2006 11:20 AM