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Bush Violates Law and Commits Impeachable
President claims he has authority as the Commander-in-Chief to conduct
warrantless wiretaps of Americans.
But when Congress enacted the Foreign Intelligence Surveillance Act in
1978, it expressly rejected the President’s claim of inherent authority to
conduct warrantless wiretaps. It
then went further and made it a crime to conduct such
President has acted contrary to the express will of the Congress. The Supreme Court has never approved a
claim of presidential authority to authorize acts outlawed by the Congress.
When Congress authorized secret wiretaps
for national security purposes in 1978, it intended to prevent any future
President from carrying out warrantless eavesdropping on Americans It made its intention clear in five
different sections of the law!
When Congress enacted FISA in 1978, it explicitly refused to provide an
exception to enable the President to eavesdrop on Americans without getting a
judicial warrant. It repealed the
provision which the government had relied upon in claiming inherent presidential
authority for warrantless wiretaps:
contained in this chapter or in section 605 of the Communications Act of 1934
shall limit the constitutional power of the President to take such measures as
he deems necessary to protect the Nation against actual or potential attack or
other hostile acts of a foreign power, to obtain foreign intelligence
information deemed essential to the security of the United States, or to protect
national security information against foreign intelligence activities. Nor shall
anything contained in this chapter be deemed to limit the constitutional power
of the President to take such measures as he deems necessary to protect the
United States against the overthrow of the Government by force or other unlawful
means, or against any other clear and present danger to the structure or
existence of the Government. The contents of any wire or oral communication
intercepted by authority of the President in the exercise of the foregoing
powers may be received in evidence in any trial hearing, or other proceeding
only where such interception was reasonable, and shall not be otherwise used or
disclosed except as is necessary to implement that power.” Pub. L. No. 90-351, 82 Stat. 212
(codified as amended at 18 U.S.C. §§ 2510-2520 (1968)).
government had argued in the Keith case that this provision supported the
President’s constitutional authority to conduct warrantless wiretaps; the Court
found it neutral on the President’s authority, not congressional authorization
for warrantless surveillance. United States v. United States District
Court [Keith], 407 U.S. 297, 303 (1972).
Congress also refused to enact the language proposed by the Ford administration
that: “[n]othing contained in
this chapter shall limit the constitutional power of the President to order
electronic surveillance for the reasons stated in section 2511(3) of title 18,
United States Code, if the facts and circumstances giving rise to such order are
beyond the scope of this chapter.” S. 3197, 94th Cong. 2d Sess, § 2528
(Mar. 23, 1976), reprinted in Hearings on
S. 743, S. 1888, S. 3197 Before the Subcomm. On Criminal Laws and Procedures of
the Senate Judiciary Comm., 94th Cong., 2d Sess. 134 (1976) (stating in the
first page of the report that S. 3197 was identical to the measure transmitted
to the Senate by the President on March 23, 1976).
in FISA Congress enacted a comprehensive scheme governing all foreign intelligence wiretaps, including
provisions for emergency wiretaps in advance of warrants and wiretaps of foreign
embassies inside the US without warrants, because as foreign governments, they
are not covered by the Fourth Amendment. It expressly provided that after a
declaration of war the Attorney General could authorize warrantless wiretaps for
steps alone would have sufficed to prohibit warrantless wiretaps, but the
Congress went further.
expressly made it a crime for government officials "acting under color of
law" to engage in electronic eavesdropping "other than pursuant to statute."
50 U.S.C. 1809.
Congress again made explicit that the FISA and the criminal wiretap laws “shall
be the exclusive means by which electronic surveillance … communications may be
conducted.” (Now codified at 18 USC 2511(f).) Section 201 of the FISA as
enacted in 1978 provided that:
contained in this chapter, or section 605 of the Communications Act of 1934,
shall be deemed to affect the acquisition by the United States Government of
foreign intelligence information from international or foreign communications by
a means other than electronic surveillance as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978, and procedures in this
chapter and the Foreign Intelligence Surveillance Act of 1978 shall be
the exclusive means by which electronic surveillance, as defined in section 101
of such Act, and the interception of domestic wire, oral, and electronic
communications may be conducted.
Pub. L. No. 95-511, 92 Stat. 1783, § 201 (1978).
Confronted with this explicit law against warrantless wiretaps, the
administration is now claiming that it had authority from Congress. But its contention that the
congressional resolution for the use of force following the September 11,
attacks authorized its warrantless surveillance is ludicrous. FISA states that following a declaration
of war by the Congress, the President, acting through the Attorney General,
institute electronic surveillance without a court order for no more than fifteen
days. (50 USC 1811.) At best, the
September 2001 resolution is the equivalent of a declaration of war. At most, therefore, the resolution
authorized warrantless surveillance for fifteen days. Nothing in the resolution can be read as
amending this specific limitation to allow unlimited warrantless
The writer is Director of the Center for National Security
Studies situated in Washington, D.C.
This essay is reprinted with the author's
Posted December 30, 2005
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