August 21, 2006


Pre-Emptive Surveillance (James Q. Wilson, August 21, 2006, Wall Street Journal)

Federal district court Judge Anna Diggs Taylor has ruled that the warrantless interception of telephone and Internet calls between a foreign agent and American persons is illegal and unconstitutional. It is possible that she is right about the illegality, but she is almost surely wrong that it is unconstitutional. [...]

What is most striking about Judge Taylor's decision is that she nowhere discusses the approval of warrantless searches by other and higher federal courts. In 1980, the Court of Appeals for the fourth circuit held (U.S. v. Truong Dinh Hung) that "the Executive need not always obtain a warrant for foreign intelligence surveillance." That is because a "uniform warrant requirement" would "unduly frustrate" the discharge of the president's foreign policy duties. It would "delay executive response to foreign intelligence threats" by requiring the judges instantly to make decisions about rapidly evolving events.

In 2002 the FISA review court itself held (In Re: Sealed Case) that the president "did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." The Supreme Court has never spoken on this matter, but it is astonishing that Judge Taylor never discusses the FISA and appellate court decisions that bear directly on this question.

It is possible that the surveillance violates the FISA law.

It's hardly a difficult rule of construction to grasy that the Legislative Branch can not by law take away a power that the Constitution gives to the Executive Branch. Mr. Wilson is, therefore, wrong that the matter will be decided by the Court. Even Senator Specter realized that either the courts can agree with the president or be ignored by him, but not reverse him.

Posted by Orrin Judd at August 21, 2006 4:35 PM
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