Question Details	Asked By	Asked On
Unilateral Use of Presidential Power	Choux	12/23/05
"President Bush is taking on an issue of presidential powers over which presidents have stumbled before. At a news conference, the president said that warrantless eavesdropping targeted at foreign citizens by the National Security Agency will continue as long as the enemy threat continues. He cited the Congressional resolution of 2001 authorizing the use of force against Iraq. The president also denounced the news media for breaking the story, calling it harmful to national security. Mr. Bush chose not to avail himself of the tool that Congress has provided for the purpose of eavesdropping - The Foreign Intelligence Surveillance Act, passed in 1978 as a reaction to President Nixon's domestic spying. That Act permits the president to apply in secret to a special court for a warrant. The administration is authorized to begin surveillance for 72 hours while waiting for the warrant, which is almost always granted. In his defiance, there may be peril for the president, as President Nixon discovered when the House Judiciary Committee voted three articles of impeachment against him, one of them for abusing the power of three agencies - the FBI, CIA, and IRS. Nixon took the position that he was using inherent presidential powers granted by the Constitution. The Constitution says that the president shall exercise the "executive power" and shall be commander in chief of the armed forces, but it doesn't spell out what those powers are. Some presidents have come up with what they call the "inherent power" of the presidency, which tends to be what they make it. Historians have said that President Lincoln freed the slaves, blockaded Southern ports, and instituted a draft all without constitutional authority. President Reagan invoked "inherent powers" to justify the illegal sale of missiles to Iran and the illegal financing of the civil war in Nicaragua. Short of impeachment, the Congress has no way of stopping a willful president except to deny him funds. That, of course, is unlikely, especially with a Republican-controlled Congress. Senate Judiciary Committee Chairman Arlen Specter promises open hearings on eavesdropping early in the new year. This is clearly an issue which is not likely to go away."= Daiel Schorr www.csmonitor.com | Copyright © 2005 The Christian Science Monitor. All rights reserved. Are we at a point in history where we need a President that can operate at will???
Answered By		Answered On
tomder55		12/24/05
we are not even close to the point where the President is operating "at will". These comparisons to Nixon are rediculous. For the record Nixon was using the various agencies to spy on domestic political opponents . That was abuse. President Bush is exercising war powers as Commander in Chief granted by the Constitution to gather intelligence on a foreign enemy we are at war with . Please not the difference. Warrantless surveillance, is nothing new historically, legally or constitutionally, particularly in wartime. Never mind the authority that Congress gave him to fight al-Qaida in the September 2001 Authorization for Use of Military Force Act. He has "inherent authority" under the Constitution, as commander in chief, to conduct specific kinds of warrantless surveillance. And this "inherent authority" isn't something Bush cooked up. "The Department of Justice believes, and the case law supports(see below for just some court decisions on this issue ), that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes." Nope that is not ALberto Gonzalez speaking ;that is former President Clinton's deputy attorney general,Jamie Gorelick's testimony before the Senate Intelligence Committee from a 1994 hearing on the president's "inherent authority" to order physical searches of homes of U.S. citizens without a warrant. In Sealed Case No. 02-001, FISA said in 2002: "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." That Clinton and every president since Carter inclusive have used the NSA this way means Bush certainly has a reasonable stance in asserting this power. What the author of this article is really saying is that if the NSA picks up a communication between al Qaida operatives and Achmed in the USA and they tell him when and where to set off the dirty bomb;the author doesn't want the NSA to listen in on that conversation because Achmed's rights are more important than thousands of Americans'lives. To that I just have to say that I disagree. ............................... 1928. The Supreme Court case of Olmstead v. United States (217 U.S. 438), a criminal case, resulted with the Court stating the use of warrantless wiretaps was not unconstitutional, because the Fourth Amendment's warrant requirement did not include conversations. The Court ruled, "The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house, and messages while passing over them, are not within the protection of the Fourth Amendment." 1974 Third Circuit Court’s opinion in U.S. v. Butenko was, "foreign intelligence gathering activity…may be conducted through warrantless electronic surveillance." The Court added "[a]s Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage." 1974 The Fifth Circuit Court case of Ivanov v. United States (419 U.S. 881), stated that "warrantless electronic surveillance (is) permitted so long as the primary purpose was to obtain foreign intelligence."

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