Last week the New York Times reported that President George W. Bush had directed the National Security Agency (NSA) to intercept communications between suspected Al Qaeda members and people in the United States. NSA has long intercepted solely foreign communications. Indeed, such intercepts are a major source of intelligence. Until the practice was revealed in court proceedings, the NSA gained valuable intelligence from Osama Bin Laden’s satellite phone communications.
Wiretapping or other surveillance of electronic communications within the United States usually falls within the purview of the Federal Bureau of Investigation (FBI) in its capacity for domestic law enforcement. In a domestic law enforcement case, such “searches” are generally authorized by a warrant issue by a judge upon presentation of probable cause.
In cases of gathering foreign intelligence, the law and practice become more complex. Whether one approves of the searches ordered by the president or not, there is a fairly long judicial trail permitting such searches under the “commander-in-chief” provisions of the Constitution. At the very least wide latitude is granted and the limits of such latitude have not been clearly circumscribed.
The Courts have consistently explicitly allowed electronic surveillance in national security cases. Indeed, in United State v. Buck in 1977, the Ninth Circuit Court concluded that “[f]oreign security wiretaps are a recognized exception to the general warrant requirement.” Summarizing the history of the jurisprudence on the matter in 2002, the United States Foreign Intelligence Surveillance Court of Review [page 48] concluded that “…court[s] 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, [the Foreign Intelligence Surveillance Act] could not encroach on the President’s constitutional power.”
Bush is not the first modern president to claim and exercise such inherent authority even on those engaged in foreign intelligence on US soil. President Jimmy Carter used this authority in the prosecution of Truong Dinh Hung, a person prosecuted for spying on behalf of the Socialist Republic of Vietnam. Evidence against convicted spy Aldrich Ames under President Bill Clinton was also acquired by a warrantless search. Indeed, Clinton’s former Deputy Attorney General Jamie Gorelick argued that the “Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”
Ultimately, the debate about such warrantless searches revolves around the broadness of two Constitutional provisions. Article II of the US Constitution invests the prerogatives of the Commander-in-Chief of the Armed Forces. Gathering intelligence in the fulfillment of this responsibility (not for general law enforcement) is a presumptive power of the President. On the other hand, the Fourth Amendment to the Constitution prohibits “unreasonable” searches.
This friction between these provisions mirrors an ongoing tension between different governing philosophies at odds since the ratification of the Constitution: the Hamiltonian and Jeffersonian views.
Alexander Hamilton a chief apologist for the Constitution, in the Federalist Papers, strongly argued for a strong central government and a strong executive in particular. As Hamilton explained, “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks…” Of those opposed to the ratification of the US Constitution, many cited the power granted the president as too sweeping. Hamilton certainly would have been comfortable with Bush’s exercise of executive authority.
By contrast, Thomas Jefferson (at least while not serving as President) would have argued against such authority. Jefferson deeply distrusted government, any government, and would have believed that procedural impediments should always tie executive authority.
The irony is that a largely free and democratic republic would have never survived over two centuries but for the Hamiltonian bow to the practical exigencies of government. It was Hamilton who first argued that there were “implied” powers inherent in the federal government. On the other hand, the Jeffersonian ideal of limited government continues to provide important salutary rhetorical constraints on the growth of government power.
The current debate is yet another extension of the Hamilton and Jeffersonian dialogue begun two centuries ago. However, lest we get too carried away with the current debate, it should be remembered that the three largest erosions of individual liberty in the last few years have been the extension of eminent domain powers, limits on freedom of speech implicit in campaign finance reform, and the prohibition of protests around abortion clinics.
Deficit of Decency
Sunday, January 15th, 2006The schoolyard teaches most an instinctive distaste for bullies: people who use their position to insult and humiliate others. The person who quietly stands up to a bully, the person who prevails against mean-spirited intimidation, and the person who overcomes a bully at his own game gains a measure of sympathy. Judge Samuel Alito earned such sympathy during last week’s confirmation hearing on his appointment to the US Supreme Court.
Such Senate hearings have long ago ceased their function of gaining important information about nominees. Questions about qualifications, legal temperament, and judicial philosophy can be answered by examination of the public record, the interview of other professionals who know the nominee, and private discussions between Senators and the nominee.
The primary purpose of the hearings has degenerated to preening by Senators for the benefit their respective constituencies. That is why far more than 50% of the time is occupied by Senatorial discourses as opposed to time for answers by the nominee. As a consequence, the hearings have come to reveal for more about the Senators than they do about a prospective Supreme Court justice, what is revealed is not pretty.
We are treated to the comical spectacle of Senator Charles Schumer (D-NY) suggesting that perhaps Judge Alito is not sufficiently open-minded when everyone in the hearing room knows that Schumer’s mind is welding shut against Alito’s ascendance to the Supreme Court. From the beginning, Schumer’s mind will not be pried open by the crowbar of evidence to even consider voting for Alito.
While Schumer’s questions may have proved comical, Senator Edward Kennedy’s (D-MA) questioning of Alito during the hearings was transparently hypocritical. Given Kennedy’s rather conspicuous history of inappropriate personal conduct, his questioning of the integrity of others is embarrassing.
Even more shameful is Kennedy’s suggestion that Alito is a racist because in “Alito’s 15 years on the bench, Judge Alito has not written one single opinion on the merits in favor a person of color who alleged race discrimination in the workplace.” This carefully worded accusation is deftly designed to deceive. The record shows that Alito voted in favor of individuals of color, however, on a three-judge panel, he “writes” about one-third of the opinions. Moreover, appeals courts rule on the law and not the merits of a case. Thus, by carefully circumscribing the universe of decisions, Kennedy tried to paint Alito as a racist. Using a similar tactic of dishonesty, one could conjure negative inferences from the fact that Kennedy has never voted for an African-American for the Supreme Court. Of course, his single opportunity to do so came during the nomination of Clarence Thomas by the first President George Bush to the Supreme Court.
Ultimately, though such behavior may endear some Democratic Senators to the hard-Left, it further isolates Democratic Senators as mean-spirited partisans. As Alito quietly and politely addressed the questions posed, this picture of competence was juxtaposed against Senators fumbling case law citations. When finally the camera showed Mrs. Alito, worn out by days of personal smears against her husband, breaking down in tears and excusing herself from the hearing room, the hearings were effectively over. The Democratic Senatorial attack had failed.
Over fifty years ago, Senator Joseph McCarthy, who had bullied others, was asked by attorney Joseph Welch, “Have you no sense of decency, sir?” Last week’s hearing revealed that the Senate still retains some who would smear others in pursuit of political advantage. There remains a decency deficit in the Senate.
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