Now Playing: a lot of posh talk
Jeff Goldstein refers us to Andrew C. McCarthy's recent dismantling of the Foreign Intelligence Surveillance Act of 1978. Here is just one hammerblow: a 1994 memo from Assistant AG Walter Dellinger to Bill Clinton's White House Counsel Abner Mikva on the issue of statutes sent to the President for his signature ---or ones already imposed upon him--- that may very well be unConstitutional. Dellinger wrote (my emphasis):
I have reflected further on the difficult questions surrounding a President's decision to decline to execute statutory provisions that the President believes are unconstitutional, and I have a few thoughts to share with you. Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.McCarthy observes:
Evidently, presidential power -- including the authority to ignore statutory restrictions that would curtail the President's inherent power to collect foreign intelligence information and protect national security -- was worthy of vigorous defending when it was being wielded by a Democrat.So what is Dellinger's opinion of this President's exercise of his Constitutional authority to gather signals intelligence? Need you even ask?
Dellinger is a signatory to this open letter to the Members of Congress (published in the New York Review of Books) in which we read the following:
We do not dispute that, absent congressional action, the President might have inherent constitutional authority to collect "signals intelligence" about the enemy abroad. Nor do we dispute that, had Congress taken no action in this area, the President might well be constitutionally empowered to conduct domestic surveillance directly tied and narrowly confined to that goal—subject, of course, to Fourth Amendment limits. Indeed, in the years before FISA was enacted, the federal law involving wiretapping specifically provided that "nothing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President...to obtain foreign intelligence information deemed essential to the security of the United States." 18 U.S.C. ? 2511(3) (1976).A dozen years ago, when the pain-feeling snake oil salesman Bill Clinton was in the White House, Dellinger made the case that the President is not necessarily obligated to follow those statutes he believes are unConstitutional.
But FISA specifically repealed that provision, FISA ? 201(c), 92 Stat. 1797, and replaced it with language dictating that FISA and the criminal code are the "exclusive means" of conducting electronic surveillance. In doing so, Congress did not deny that the President has constitutional power to conduct electronic surveillance for national security purposes; rather, Congress properly concluded that "even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted."
But now, with the Chimperor in charge? Well, the Congress can insinuate itself into the areas of Presidential authority. It can erect a judicial firewall against the President's authority to root out our enemies. It can hold him to stupid and arbitrary rules, such as limiting warrantless searches in wartime to the first two weeks of a declared war. Whether we say the Authorization for Use of Military Force is something like a declaration of war, it really isn't ---and once again we realize that the FISA is an inapplicable statute that makes no sense in the current state of the art of surveillance.
The FISA is an unConstitutional weapon that was created by the Democratic Party a quarter century ago and is being used again in the service of its political agenda today. Keep pursuing this, you idiots, and you'll guarantee another electoral loss come November.