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December 22, 2005
Ted Kennedy Vs. U.S. Constitution
In an opinion piece for the Boston Globe, Senator Ted Kennedy wrote the following:
THE PRESIDENT is not above the law; he is not King George. Yet, with sorrow, we are now learning that in this great land we have an administration that has refused to follow well-crafted, longstanding procedures that require the president to get a court order before spying on people within the United States. With outrage, we learn that this administration believes that it does not have to follow the law of the land.
According to members of previous presidential administrations, Senator Kennedy is in error.
Georgetown University professor Raymond Tanter was a staff member of President Reagan’s National Security Council. In an opinion piece for USA TODAY, Mr. Tanter wrote the following:
Presidential authorization to intercept communications is not a case of power corrupting absolutely. This is a case in which the president already has the constitutional authority as commander in chief to authorize communications intercepts between foreign enemies and their suspected American collaborators. . . In addition to constitutional authority, Congress has authorized the use of force in the Joint Resolution of Congress passed in the aftermath of 9/11. That resolution charged the president to "use all necessary and appropriate force" to "prevent any future acts of international terrorism against the United States." These wiretaps follow logically from this resolution.
John Schmidt was Associate Attorney General of the U.S.A. during the Clinton Administration. In an opinion piece for the Chicago Tribune, Mr. Schmidt wrote the following:
President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.
. . . the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."
The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.
But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."
. . . I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack.
If Mr. Tanter and Mr. Schmidt are correct, then William Kristol and Gary Schmitt are correct when they say, "To engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible." [Quote Source]
If Senator Kennedy is correct, then why didn't he complain when President Clinton authorized warrantless searches?
In a story for the Washington Times, reporter Charles Hurt wrote the following:
In 1994, President Clinton expanded the use of warrantless searches to entirely domestic situations with no foreign intelligence value whatsoever. In a radio address promoting a crime-fighting bill, Mr. Clinton discussed a new policy to conduct warrantless searches in highly violent public housing projects."
Perhaps Sen. Kennedy is using the selective amnesia that Times of London columnist Gerard Baker wrote about in his column titled "You don't have to be an amnesiac to be a Democrat, buddy, but it helps".
STORY UPDATE: John Hinderaker at Powerline has posted an analysis of the legality of warrantless searches authorized by American presidents. To read the analysis, click here. Hat Tip: Michelle Malkin
Posted by Dodo David at December 22, 2005 12:01 PM
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Comments
We need a debate show in the prime time where we can have teams of three go at it like it's a game show.
When an issue like this comes up, they can send up Ted Kennedy to make the case and then rebut with Schmidt. Next round they can have Jaime Gorelick argue her points, then follow that up with Byron York for our side.
Then they can put up oh, Sandy Berger or whoever, and we can clean up with Victoria Tensing (I LOVE HER).
It would be much better than having to suffer through hannity and colmes or Bill Maher. Brit Hume and Tim Russert can alternated episodes as moderators.
Posted by: Aaron at December 22, 2005 12:34 PM