The Law, The Constitution and Warrantless Surveillance

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.

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).

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.

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).

No Responses to “The Law, The Constitution and Warrantless Surveillance”

  1. Philip A Gatti Jr April 6, 2006 at 5:14 AM #

    Well good folks. I, family, friends don’t care one whit if the President went above the law in wiretapping. We rather be safe as humanly possible than within the so called law and be dead. Takes a no brainer I think. And, as for the “we are a Nation of Laws” bit. Yeah right! Selective laws as the politicians see fit, meaning if it serves their personal agenda. Example:Illegal immigrants are breaking our laws, PERIOD! End of discussion.
    God Bless America and our Military past and present. Without them, none of us would be here today. Amen!

  2. Laura Butinski April 6, 2006 at 11:52 AM #

    “Those who give up essential liberty to obtain a little temporary safety deserve neither liberty or safety.”
    -Benjamin Franklin

    “There is nothing new in the world except the history
    you do not know.”
    -Harry Truman

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