WASHINGTON -- 2005 was already the year of the demagogue, having been dominated for months by the endlessly echoed falsehood that the president ``lied us into war.'' But the year ends with yet another round of demagoguery.
Administration critics, political and media, charge that by ordering surveillance on communications of suspected al Qaeda agents in the United States, the president had clearly violated the law. Some even suggest that Bush has thereby so trampled the Constitution that impeachment should now be considered. (Barbara Boxer, Jonathan Alter, John Dean and various luminaries of the left have already begun floating the idea.) The braying herds have already concluded, Tenet-like, that the president's actions were slam-dunk illegal. It takes a superior mix of partisanship, animus and ignorance to say that.
Does the president have the constitutional authority to conduct warrantless searches against suspected foreign agents in the United States? George Washington University law professor Orin Kerr (one critic calls him the man who ``literally wrote the book on government seizure of electronic evidence'') finds ``pretty decent arguments'' on both sides but his own conclusion is that Bush's actions were ``probably constitutional.''
In 1972, the Supreme Court required the president to obtain warrants to eavesdrop on domestic groups, but specifically declined to apply this requirement to snooping on foreign agents. Four appeals courts have since upheld presidential authority for such warrantless searches. Not surprisingly, the executive branch has agreed.
True, Congress tried to restrict this presidential authority with the so-called FISA law of 1978. It requires that warrants for wiretapping of enemy agents in the U.S. be obtained from a secret court. But as John Schmidt, associate attorney general in the Clinton administration, writes: ``Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms.'' Indeed, Clinton's own deputy attorney general testified to Congress that ``the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes,'' then noted a few minutes later that ``courts have made no distinction between electronic surveillances and physical searches.''
Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.
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