|
Senator Frank Church). In particular, he told the committee, "In 1969, during my Administration, warrantless wiretapping, even by the government, was unlawful, but if undertaken because of a presidential determination that it was in the interest of national security was lawful. Support for the legality of such action is found, for example, in the concurring opinion of Justice White in Katz v. United States." (Katz is the opinion that established that a wiretap constitutes a "search and seizure" under the Fourth Amendment, just as surely as a search of one's living room does - and thus that the Fourth Amendment's warrant requirements apply to wiretapping.)
Nixon rather presciently anticipated - and provided a rationalization for - Bush: He wrote, "there have been - and will be in the future - circumstances in which presidents may lawfully authorize actions in the interest of security of this country, which if undertaken by other persons, even by the president under different circumstances, would be illegal."
Even if we accept Nixon's logic for purposes of argument, were the circumstances that faced Bush the kind of "circumstances" that justify warrantless wiretapping? I believe the answer is no.
Is Bush's Unauthorized Surveillance Action Justified? Not Persuasively
Had Bush issued his Executive Order on September 12, 2001, as a temporary measure - pending his seeking Congress approval - those circumstances might have supported his call.
Or, had a particularly serious threat of attack compelled Bush to authorize warrantless wiretapping in a particular investigation, before he had time to go to Congress, that too might have been justifiable.
But several years have passed since the broad 2002 Executive Order, and in all that time, Bush has refused to seek legal authority for his action. Yet he can hardly miss the fact that Congress has clearly set rules for presidents in the very situation in which he insists on defying the law.
Bush has given one legal explanation for his actions which borders on the laughable: He claims that implicit in Congress' authorization of his use of force against the Taliban in Afghanistan, following the 9/11 attack, was an exemption from FISA.
No sane member of Congress believes that the Authorization of Military Force provided such an authorization. No first year law student would mistakenly make such a claim. It is not merely a stretch; it is ludicrous.
But the core of Bush's defense is to rely on the very argument made by Nixon: that the president is merely exercising his "commander-in-chief" power under Article II of the Constitution. This, too, is a dubious argument. Its author, John Yoo, is a bright, but inexperienced and highly partisan young professor at Boalt Law School, who has been in and out of government service.
|
|
