Some have tried to suggest that this provision does nothing more than state the obvious – that it simply reiterates that the constitution can trump statutes.
Respectfully, I disagree.
Youngstown makes it clear that what Congress says in its statutes has a significant and meaningful impact on the Court’s analysis of the Executive’s actions.
When testifying before our Committee, even Mr. Bradbury conceded this point, when he acknowledged that statutes can reasonably regulate a President’s exercise of his constitutional authority. Mr. Bradbury was well aware of the importance of these provisions; when asked if we could take them out, he was unwilling to say the President would still support this bill if the provisions were removed.
In short, the Administration is agreeing to submit its program for court review only if a thumb is essentially placed on the scales of justice – if we agree to alter the Youngstown calculus that will determine the program’s constitutionality. We should not capitulate by giving up our constitutional power and ceding all to the President.
Allows Warrantless Wiretaps to Last for Decades
The Administration bill also would repeal the language that allows the President to wiretap without a FISA warrant for 15 days after a declaration of war.
After 15 days, the President must get a FISA warrant. This is important because it clarifies that the role of courts in ensuring the civil liberties of Americans will be limited only to the extent deemed reasonably necessary in a true national emergency. After that, the President must comply with FISA or ask Congress for a further extension. Without this limit, the President’s authority to wiretap without any outside oversight might extend until war’s end.
While wars do not necessarily have specific end points, there is usually some identifying action that signals an end – such as the surrender of one party, annexation of a territory under dispute, a peace treaty, or one party’s unilateral withdrawal.
However, in the ‘war on terror,’ it is highly unlikely that there would be a similar triggering event that would signify the end.
The deletion of this 15-day limit means that the President may legally conduct surveillance without a FISA warrant for decades, and potentially for the indefinite future.
I am concerned that this type of long-term, unsupervised wiretapping could eventually lead to abuses of the type that led us to enact FISA in the first place – where war protesters and even Martin Luther King were secretly wiretapped without any outside oversight. The new Specter bill would turn back the clock to an era of unchecked Presidential power and warrantless domestic surveillance.
Allows Warrantless Searches of Homes
I am especially concerned that the abuses could have a broad impact because the provision covers not just electronic surveillance, but also physical searches – meaning that the Executive’s power to enter Americans’ homes without a warrant, for the duration of our ‘war on terror,’ might also continue indefinitely.
This is not a change we should make lightly.
I am also concerned that the evaluation of this program by the Courts depends on the President voluntarily submitting his NSA program for judicial review. There is no affirmative mandate in the bill.
It is also unclear whether the FISA court can even decide the constitutional issue that the President would submit to them. It is unclear whether a FISA court has the Article III jurisdiction necessary to decide this issue.
