Strengthening Constitutional Self-Government

No Left Turns

Up to speed on surveillance

The best pieces I have read on the NSA/FISA issue are here (Byron York on the cumbersome FISA warrant process), here (Bill Kristol and Gary Schmitt on energy in the executive), here (Hugh Hewitt on some of the caselaw), and here (Orin Kerr’s careful examination of almost all the arguments and the caselaw).

For me, the bottom line is that this is a political, not a narrowly legal, question. Stated another way, the issue is executive prerogative, which is asserted and controlled politically.

Discussions - 5 Comments

Agreed Professor K.

Executive prerogative may make us all uneasy, but that doesn’t mean it is necessary. As long as there is political accountability, prerogative cannot be ruled out by legal definition. See the Pacificus/Helvidius debates over Washington’s 1793 Neutrality Proclamation. Or Ex Parte vs Milligan in 1866 over Lincoln’s use of military tribunals for citizens in Indiana.


Democracies aren’t designed for warmaking...they lack the central control needed to quickly mobilize and deploy martial resources and protocols. Seems to me that executive privilege is a reasonable way of diminishing that disadvantage. And it’s not like we lack essential checks and balances...I mean look at what’s going on. People are angry because Bush evesdropped on foreigners living HERE. I don’t think we are in any danger of the police state...people should calm down (but, then again, their whole point may be to pin the tail on the Bush...could it be?).

Democracies aren’t designed for warmaking...

So we can just chuck the Constitution aside when we’re at war- that silly old thing just gets in the way! We can all relax, anyway, Dain says there’s no danger of us becoming a police state, and he definitely knows.

the Constitution, certainly not in this case, because the Constitution gives the President inherent powers from which may be derived the authority to order warrantless searches, when circumstances make such searches "reasonable." (The 4th Amendment says nothing about warrants, but rather bans "unreasonable" search and seizure.)

It follows from this that an act of Congress or a court ruling attempting to deny the president his constitutional powers would itself be unconstitutional, which may be why no court has ruled that searches must always require a warrant, and why previous administrations--including those of Carter and Clinton--have insisted that presidents have the power to order warrantless searches.

Of course I shd have recalled that the 4th Amendment does mention warrants ("no Warrant shall issue, etc."), but the wording of the whole Amendment makes clear that reasonableness is the controlling standard (the amendment mentions warrants in order to spell out that when they are relied upon--which will be the normal course of action in purely domestic criminal and most other investigations, for instance--they must be upon oath or affirmation, etc.).

The courts have generally recognized that there are circumstances--border checkpoints, the high seas, and more recently, antiterror operations, where a search can be reasonable and hence w/in the power of U.S. officials even when they have no warrant for said search.

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