Thursday, March 30, 2006

FISA and the Warrantless Surveillance News

Must the President of the United States obey the law? Ordinarily, the
answer of course is yes, unless the law itself is unconstitutional.


It is "uncontroversial," wrote then-Assistant Attorney General Walter
Dellinger in a 1994 memorandum for the Clinton White House, that
"there are circumstances in which the President may appropriately
decline to enforce a statute that he views as unconstitutional
."

See "Presidential Authority to Decline to Execute Unconstitutional
Statutes,
" Office of Legal Counsel, Department of Justice, November
2, 1994:

http://www.fas.org/irp/agency/doj/olc110294.html

However, the President does not have the last word on what is or is
not constitutional. That decision belongs to the Supreme Court.

A new bill introduced by Sen. Charles Schumer (D-NY) yesterday would
set the stage for the Supreme Court to consider the legality of the
Bush Administration's warrantless surveillance program by granting
legal standing to litigants seeking to challenge the program.

"Did the President go outside the ambit of the law about asking for a
warrant?"
asked Sen. Schumer. "Some think yes, and they are pretty
sure of that. Some think no, and they are pretty sure of it. They are
pretty sure that he couldn't. Many are not sure at all.
"

"The most logical place for this to be settled is in the U.S. Supreme
Court
," he said in his March 29 introductory statement on the new
bill (S. 2468). See:

http://www.fas.org/irp/congress/2006_cr/s2468.html

The Senate Judiciary Committee held a hearing on March 28 featuring
four former judges of the Foreign Intelligence Surveillance Court and
other expert witnesses who testified on issues surrounding the
warrantless surveillance program and Senator Specter's legislative
proposal on the subject.

Prepared statements from Sen. Leahy, FISA expert Morton Halperin of
the Center for American Progress, and former Justice official David
Kris (but not yet the statements of the judges) can be found here:

http://www.fas.org/irp/congress/2006_hr/index.html#nsa3

A rare interview with FISA Court Judge George Kazen of Laredo, Texas
appeared in the Dallas Morning News earlier this week.

See "Judge juggles busy docket, secret duty" by Todd J. Gilman, Dallas
Morning News, March 28 (free but intrusive registration required):

http://tinyurl.com/f4vek

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