| Are critics of President Bush’s electronic-surveillance practices concerned with the Constitution? Or are they just using any excuse they can find to accuse him of abusing his power?
If they are concerned with constitutional issues, why didn’t they object to President Clinton’s advocacy of warrantless searches -- even for physical searches as opposed to electronic surveillance -- for national security reasons? Other presidents have also defended the Commander in Chief’s inherent authority to conduct such searches.
But the critics are acting like the mere suggestion of a search without a warrant is tantamount to the establishment of a police state. What they don’t tell you is that the Fourth Amendment itself primarily guards against unreasonable searches and seizures. Courts have always recognized exceptions to the warrant requirement.
That warrants are not absolutely indispensable is also clear by the very terms of the Foreign Intelligence Surveillance Act itself, which expressly dispenses with the warrant requirement in certain defined circumstances. Some scholars maintain those exceptions apply to the president’s NSA surveillance of Al Qaeda, though the administration doesn't appear to be relying on that position. Instead, President Bush finds his authority in the Constitution and in Congress’ de facto declaration of war following 9/11.
He is not challenging the validity of FISA but merely saying it does not limit his inherent constitutional authority as Commander in Chief under Article II to conduct such searches, when necessary, to protect national security. Congressional action, in other words, never trumps the Constitution.
But as for statutory authority, the president relies on Congress' passing its declaration of war following 9/11 to give him the authority to "use all necessary and appropriate force" against the terrorist enemy. Warrantless surveillance of Al Qaeda operatives, President Bush argues, is within the meaning of "necessary and appropriate force."
Some have objected that "necessary and appropriate force" cannot be construed to permit such surveillance of the enemy. There is no specific authorization for electronic surveillance in Congress’s "declaration," and so Congress did not authorize it.
But as Attorney General Albert Gonzalez pointed out, the U.S. Supreme Court ruled in the Hamdi case that the government could detain an American citizen captured on the battlefield for the duration of the war even though Congress’ authorization to use force never mentions the word "detention."
Detention, according to Justice O’Connor's opinion, is a fundamental incident of waging war. And the NSA electronic surveillance of Al Qaeda, argues Gonzalez, is "even more a fundamental incident of war" than detention.
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