Strengthening Constitutional Self-Government

No Left Turns

The NSA wiretap program is legal

The NSA wiretap debate is complicated, raising questions about FISA law and the Authorization to Use Military Force, as well as constitutional issues of separation of powers and the Fourth Amendment. Sometimes, even members of Congress need help interpreting these issues. When House Judiciary Chairman James Sensenbrenner needed insight on the law, he contacted Ashbrook’s own Robert Alt and John Eastman for their legal opinions. Robert’s letter to the chairman can be found on the Judiciary Committee’s web site here, and John’s letter can be found here. Robert tackles the statutory questions, showing why it is that Congress’s Authorization to Use Military Force passed in the aftermath of 9/11 gave the President all the statutory authority he needed to conduct the NSA program, and John addresses the separation of powers issues, demonstrating that the President has extensive authority in conducting intelligence operations in wartime.

Both letters are important to the current debate. In fact, Chairman Sensenbrenner wrote to the Congressional Research Service, which had previously written a memo suggesting the wiretap program was unlawful, asking them to respond to critiques of the memo made by Alt and Eastman. Interesting stuff this. Who would think that lawyers might be capable of insight?

Discussions - 7 Comments

Robert Alt . . . straight out of Compton . . . heh . . .


There are a handul of senators whose vote counts here. Bush needs to be prepared for a brutal fight over this.

This is so exciting! A proud moment, indeed, for noleftturns and the Ashbrook Center.

The basic question here is whether in the context of a war that everyone admits will last forever, we want a system in which the president cannot be constrained by congress in engaging in data mining and widespread warrantless wiretaps on american soil. I can’t understand how the answer to that question could be "yes." I don’t see any reason to believe that the framers in their wisdom would counsel us to provide an affirmative answer, either.

A subsidiary question is whether we should want a president who pushes the envelope on this kind of constitutional argument whenever he gets the chance. I think that the answer is clearly no. Lincoln’s approach was different. Read his messages to Congress again. Instead of letting his lawyers hammer these things out, he spoke to Congress directly in ways that allowed Congress to preserve its authority. The Bush administration apparently has little interest in seeing itself in a dialogue among co-equals. That’s not really healthy for constitutional government.

Can = Ought

The NSA wiretap debate, contrary to assertions made above, is not complicated. It is also not legal. It is also not consitutional. These are not difficult, and they are not ambiguous, questions. Enter text description.

you might also want to consider this, with respect to why our founding fathers set up the constitution in the first place. http://glenngreenwald.blogspot.com/2005/12/bushs-unchecked-executive-power-v.html

The NSA wiretap debate, contrary to assertions made above, is not complicated. It is also not legal. It is also not consitutional. These are not difficult, and they are not ambiguous, questions. http://www.pressthenews.com/dancing_on_the_edge.html

you might also consider this, with respect to why our founding fathers set up the constitution in the first place. http://glenngreenwald.blogspot.com/2005/12/bushs-unchecked-executive-power-v.html

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