December 23, 2005

ConLaw Scholar: Bush has the Authority For NSA Wiretaps

This segment of a radio talk show transcript is interesting, especially coming from self-described liberal Constitutional law Professor Cass Sunstein on the Hugh Hewitt Radio Show:

Hugh Hewitt (HH): ...First, did the authorization for the use of military force from 2001 authorize the president's action with regards to conducting surveillance on foreign powers, including al Qaeda, in contact with their agents in America, Professor?

Cass Sunstein (CS): Well, probably. If the Congress authorizes the president to use force, a pretty natural incident of that is to engage in surveillance. So if there's on the battlefield some communication between Taliban and al Qaeda, the president can monitor that. If al Qaeda calls the United States, the president can probably monitor that, too, as part of waging against al Qaeda.

Hugh Hewitt (HH): Very good. Part two of your analysis...If...whether or not the AUMF does, does the Constitution give the president inherent authority to do what he did?

Cass Sunstein (CS):
That's less clear, but there's a very strong argument the president does have that authority. All the lower courts that have investigated the issue have so said. So as part of the president's power as executive, there's a strong argument that he can monitor conversations from overseas, especially if they're al Qaeda communications in the aftermath of 9/11. So what I guess I do is put the two arguments together. It's a little technical, but I think pretty important, which is that since the president has a plausible claim that he has inherent authority to do this, that is to monitor communications from threats outside our borders, we should be pretty willing to interpret a Congressional authorization to use force in a way that conforms to the president's possible Constitutional authority. So that is if you put the Constitutional authority together with the statutory authorization, the president's on pretty good ground.

Radioblogger has the entire transcript.

Posted by Confederate Yankee at December 23, 2005 01:24 PM | TrackBack

None of this will matter a bit to those who are screaming for the president's blood. Their minds are made up, don't confuse them with the facts.

Posted by: Shoprat at December 23, 2005 02:37 PM

People will believe what they want; however, I believe most will see through the brouhaha of this issue and see the obstructionists and defeatists for what they really are. If the cameras haven’t been rolling during these recent antics for future political commercials, then someone is falling down on their job.

Posted by: Old Soldier at December 23, 2005 05:05 PM

You clowns are ridiculous. If Clinton had done this, you'd be screaming for his impeachment (rightfully, this time).
No true liberal supports the illegal usurping of FISA. No true conservative would either. FISA should be permissive enough for everyone. Otherwise, that's why FISC, the NSA, Congress, etc. etc., you can name enough, refuse to support this.

Posted by: NaySayer at December 27, 2005 03:55 PM

I hate to break up your delusion, Naysayer, but DoJ lawyers from the last 4 adminstrations, The NSA itself, and most constitutional law experts happen to disagree with you, and I'll let you guess who carries the most weight.

Posted by: Confederate Yankee at December 27, 2005 04:36 PM

I don't think it's a delusion to suggest spying on Americans without a warrant (ex post or ante) is unconstitutional. I also seriously challenge your assertion that most constitutional law experts disagree with NaySayer. If anything, I'd like more than just your word that they disagree. Plus, just because some DoJ lawyers disagree - I doubt all would - remember that they were ALL working for the EXECUTIVE branch. Finally, it is a little scary that the President can decide who to listen to - most especially considering according to him EVERYTHING is linked to al Qaeda (remember, if you speak up for troops without armor - you're aiding and abetting, if you think more troops are needed - you're aiding and abetting, if you think maybe we should have caught Osama bin Laden in Afghanistan before refocusing on Iraq - you're aiding and abetting). Heck, seems that the President might think every Democrat on the Hill (at least) would be linked to al Qaeda.

Posted by: True Believer at December 28, 2005 05:20 PM

Sunstein is not correct here, he states where Bush's authority begins, but he does not state where it ends. Bush DOES have the authority to wiretap. Under normal circumstances he has 72 hours to file paperwork with a FISA judge. Under extreme circumstances (such as 9/11) they have 15 days to file the paperwork. If a FISA judge rejects a warrant it is NOT ok for Bush to ignore the judge. According to Federal law that is where his authority ends.

Our government is based on checks and balances. When the executive branch ignores the judicial branch, they are also ignoring the laws created by the legislative branch. Turning our 3 branch government into a 1 branch government.

"I have re-authorized this program more than 30 times," Bush said.

Without checks and balances, Bush is becoming a King. This is not good.

Posted by: Steve at January 1, 2006 04:34 PM