Trust Me, I'm Your President

The founding fathers had a healthy suspicion of untrammeled executive power, which is why the constitution carefully divides the powers of government between three co-equal branches. Rae Ann, AKA Vicious Mama, has advanced a constitutional theory that would pretty much demolish the balance of powers. She begins by quoting the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I think the key word there is "unreasonable."

Someone show me where in the Constitution that it says a wartime President cannot wiretap foreign terrorists' incoming calls without a warrant when taking the time to get that warrant might cost lives.

The idea that searches and seizures require a warrant was not a new American principle, but an old principle of English common law. The Fourth amendment was a protest against King George III's assertion of the right to issue blanket warrants permitting his agents to search without any specific finding of guilt or suspicion. Two hundred thirty years later, another George, also the third of his name to be chief of state, has asserted the same priviledge. Rae Ann quite reasonably asserts that a key word here is "reasonable." The question is, who is to judge? Under our system of government, the rule has always been that the judiciary decides, as specified clearly in the Constitution. Rae Ann then raises the usual straw man "when taking the time to get that warrant might cost lives."

Congress prepared for just that eventuality in the FISA law, which specifically allows emergency wiretaps without prior approval - but requires subsequent justification to the FISA court.

One of the commenters on her blog contributes some mistaken information. DHammett (presumeably not the Communist writer, who is dead) writes:

CIP -

Here are a few facts about FISA and the Patriot Act. There are 7 special FISA courts and judges, all of them in DC.

Actually, there are eleven, who are required by law to be from at least seven different judicial districts, though three of them are required to be near DC (that's where the government is).

The same requirements for probable cause for Title III monitoring exist under FISA as under criminal statutes.

Well duh! That's what the Constitution requires. If you don't like it, then you have to repeal the Fourth Amendment.

It takes months to years for one FISA approval, which only lasts 3 months.

That is simply false. It takes hours or minutes, and there is the emergency provision mentioned above.

Usually, once a Title III is approved under FISA, a renewal needs to be requested immediately or the authorization will expire and the approval process starts anew. The instances in which emergency Title III monitoring is approved are precious few, and justification in the form of probable cause must still be made, after the fact, to the FISA judge.

In fact, the FISA court has disapproved only a microscopic percentage of requested wiretaps (0 out of over 1754 in 2004, for example. See statistics here). The government has never appealed any of these refusals.

Before information obtained under a FISA wiretap can be used for criminal investigative purposes, its use must be approved by no less than the attorney general of the US.

Again, in accord with long accepted interpretations of the Fourth Amendment and common law. FISA is for Foreign Intelligence and Security, not criminal prosecutions. If you don't like it, try to repeal the Bill of Rights.

If Bush thought that the FISA law was too restrictive, he could at any time have gone to Congress to request a modification, but he never has. He chose instead to trash the law and the Constitution.

Ultimately this has less to do with liberal versus conservative than it has to do with trust. The founding fathers, traditional conservatives, and I always have distrusted unlimited executive power, which is what you have when the President is the sole judge of the legality of his own actions.

You so-called conservatives are asking us to trust this President - and not only him, because if this power grab is permitted, precedent is set for every future President who wants to seize your papers or property in the name of national security.

I don't trust any President with this power, but I find it bizaare that anyone would trust this one with it. This is a man who has repeatedly and flagrantly lied about almost everything. He lied about his arrest record, he lied about his military service, he lied about his tax cuts, he forced his employees to lie about his budgets, and he conducted his campaigns by spreading scurrilous lies about his opponents. He lied about his business dealing to the SEC, was caught, and got off lightly only because his father had just appointed the SEC commissioner. Worst of all he has lied about the war at every turn, even in today's Press conference:

I was hoping to solve this problem diplomatically. That's why I went to the Security Council; that's why it was important to pass 1441, which was unanimously passed. And the world said, disarm, disclose, or face serious consequences ... and therefore, we worked with the world, we worked to make sure that Saddam Hussein heard the message of the world. And when he chose to deny inspectors, when he chose not to disclose, then I had the difficult decision to make to remove him.

Does he really think Americans are so stupid as to forget that Saddam, under pressure, did admit the inspectors, and that they wandered all over Iraq, looking for weapons of mass destruction, and forced Saddam to destroy his rockets. Oh, never mind, we are that stupid, or at least a lot of us are.

Of course they never did find those WMD's, which is not terribly surprising when you consider that they didn't turn out to exist.