Thursday, January 15, 2009

Surveillance Court Upholds Bush on Warrantless Wiretapping   [Andy McCarthy]

The New York Times reports that the Foreign Intelligence Surveillance Court of Review — the specialized federal appeals court created by the 1978 FISA statute to rule on questions involving national security surveillance — has reaffirmed that the President of the United States has inherent constitutional authority to monitor international communications without court permission. 

The power exists, the court is expected to reaffirm, even when the communications of American citizens are involved.

The ruling, which was classified when made back in December August, may be disclosed publicly as early as today.  As the Times says (or, shall I say, concedes through gritted teeth?):  "In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping."

Yeah, it may.

It understates the case to say the Bush administration has been slandered for asserting this power — accused of shredding the Constitution and violating the principle that no one is above the law (even as Congress put itself above the law — the Constitution — by enacting and trying to enforce a statute, FISA, that sought to diminish the president's constitutional authority).  It was never true. 

President Bush's Terrorist Surveillance Program — carried out by the NSA without court oversight, just as wartime presidents have always conducted national security surveillance without court oversight — always stood on strong authority, including a 2002 ruling from the same Foreign Intelligence Court of Review.  I have argued in favor of the program's legality, here on NRO and elsewhere, more times than I can count.  (See, e.g., here, here, here, here and here).

By the way, Obama Attorney General nominee Eric Holder, who is having his confirmation hearing today, attacked the Bush administration in a speech six months ago for having, among other allegations, "approved secret electronic surveillance against American citizens," a strategy Holder said was among the “needlessly abusive and unlawful practices” that showed we in the United States had “lost our way with regard to [our] commitment to the Constitution and to the rule of law.”

UPDATE:  The ruling has apparently been released, and the Times has updated its report.

01/15 01:03 PMShare