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Wednesday, December 21, 2005

ConLaw 101

I started to post about this yesterday when my computer's unstable SD RAM caused it to reboot while I stepped away thereby losing my work-in-process. Anyway, the brouhaha over the warrantless surveillance for which the President is getting flack is not so simple a subject, and a proper analysis requires more than a cursory knowledge of Constitutional Law, including the Fourth Amendment and separation of powers. This lack of knowledge is quite evident in most of the commentary I've heard on the MSM. The bottom line question is whether warrantless surveillance is permitted when foreign powers are involved as contrasted with a purely domestic situation. First, it is absolutely clear that the President has inherent authority to conduct warrantless searches to obtain foreign intelligence information. (U.S. v. Truong) Indeed, here's a list of many other search powers the federal government has that do not require a "warrant." In United States v. United States District Court (1972), Justice Lewis Powell wrote: "the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. " What he was saying was that it is an open question whether an exception to Fourth Amendment requirements exists for foreign intelligence collection. Quite obviously, the Attorney General advised the President that such surveillance was permissible under the Constitution. It is certainly clear that it is not, on its face, impermissible. At best, it is an open question. However, the reporting by those not at all familiar with Constitutional law is overly facile. It would be like me reporting on a schism in the field of neurosurgery and then taking a position.

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