FISA's Affirmation

When Senator Carl Levin and Congressman John Conyers continue the witch-hunt against Bush Administration officials for "indictable offenses" related to the War on Terror, none of us should be surprised when The New York Times and media outfits of its ilk tag along for the ride. Similarly, none of us should be surprised that the Foreign Intelligence Surveillance Court of Review's August 2008 decision, released just a week ago, has been stashed in the proverbial corner of media portals everywhere.

As it just so happens, the panel affirmed the Executive's Constitutional authority to collect national-security intelligence without judicial approval. The facts of the case (at least the non-classified facts) involve a telecom company's failure to comply with the National Security Agency's wiretap program on Fourth Amendment grounds.

The Court held that searches and seizures conducted under the President's Article II war powers were not "unreasonable," and thus exceptions to Fourth Amendment limits on intelligence gathering. But don’t sound so surprised. In Truong, the Fourth Circuit held that there were indeed circumstances where the Executive need not obtain a warrant of any type to gather foreign intelligence through surveillance. In the FISA appeals court’s In re Sealed opinion: “The President has inherent authority to conduct warrantless searches to obtain foreign intelligence information.”

The court “took for granted that FISA could not encroach on the President's constitutional power.” Perhaps this is why the venom persists; the actual legal authorities involved defer to Presidential power in a measure that escapes the critics’ notice. But what the recent decision shows is exactly what has been the case all along: FISA is a creation of Congress that specifies the process through which domestic wiretaps are approved. It does not and cannot encroach on the President’s war powers. That does not change with the structure of the telecom industry either.

Now that President Obama is commander-in-chief and politically responsible for any terrorist attack resulting in loss of American life, it will be fascinating to see the left’s response to the inevitable continuation of the NSA’s wiretap program under somebody not named Bush. No President has ever rushed to abandon the powers he's been legally granted, though it's always nice to see a little more legal cover for the essential programs one might feel tempted to limit in the face of Levin & Conyers, LLP.