If those on the Left actually believe in the rule of law and the importance of court precedent, they would be condemning Russ Feingold and other mentally-ill sufferers of Bush Derangement Syndrome for insisting that the President be censured for taking actions that courts have consistently ruled are within the scope of his constitutional authority.

Byron York points to the case – decided by the FISA Court of Review – that settles the question of presidential authority on the matter. No, not the Truong case, but a little matter known as In re: Sealed Case. The details of the case itself are not known, but the decision regarding presidential authority to engage in warrantless searches and surveillance is.

In its opinion, the Court of Review said the FISA Court had, in effect, attempted to unilaterally impose the old 1995 rules. "In doing so, the FISA Court erred," the ruling read. "It did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied." The FISA Court, according to the ruling, "refus[ed] to consider the legal significance of the Patriot Act's crucial amendments" and "may well have exceeded the constitutional bounds" governing the courts by asserting "authority to govern the internal organization and investigative procedures of the Department of Justice."

And then the Court of Review did one more thing, something that has repercussions in today's surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the "inherent authority" under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

It was a clear and sweeping statement of executive authority. And what was most likely not known to the Court of Review at the time was that the administration had, in 2002, started a program in which it did exactly what the Court of Review said it had the power to do: order the surveillance of some international communications without a warrant.

The Left demands that FISA be followed. This decision makes it clear that the surveillance problem illegally disclosed by James Risen and the New York Times (a crime for which they can and should be prosecuted) is itself legal due to authority granted to the president by the Constitution of the United States. The Supreme Court chose not to review the case, allowing the decision of the FISA Court of Review (the functional equivalent of a US Circuit Court of Appeals) to stand. It is therefore incontrovertible that George W. Bush has the same power exercised by Bill Clinton, Jimmy Carter, Harry Truman, Franklin Delano Roosevelt, and other presidents dating back to the founding of the Republic.
To use a phrase that was a mantra for the Left during the Roberts and Alito hearings, that position is Settled Law. Now let the President do his job and quit giving aid and comfort to our enemies by interfering with attempts to keep this country safe.

Posted by: Greg at 06:40 PM | Comments (21) | Add Comment
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