Federal appeals courts have upheld the authority Roosevelt and Truman used. "(B)ecause of the president's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm ... that the president may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence," the U.S. Court of Appeals for the Fifth Circuit ruled in the 1973 case of United States v. Brown.
Even after President Carter signed the Foreign Intelligence Surveillance Act of 1978, which required warrants for domestic intelligence wiretaps, Carter's Justice Department went into federal court to defend warrantless wiretapping for national security reasons.
Truong Dinh Hung, a Vietnamese national living in the United States, and Ronald Humphrey, a U.S. citizen who worked for the U.S. Information Agency, had appealed their espionage convictions, which resulted from Humphrey passing classified documents to Truong, who sent them to Vietnamese officials in Paris in 1977.
"Truong's phone was tapped and his apartment was bugged from May 1977 to January 1978," explained the Fourth Circuit's 1980 opinion in United States v. Truong. "The telephone interception continued for 268 days, and every conversation, with possibly one exception, was monitored and virtually all were taped. The eavesdropping device was operative for approximately 255 days, and it ran continuously. No court authorization was ever sought or obtained for the installation and maintenance of the telephone tap or the bug. The government thus ascertained that Humphrey was providing Truong with the copies of secret documents."
Lo and behold, Carter's Justice Department claimed Carter had a "constitutional prerogative" to conduct this warrantless wiretap. "In the area of foreign intelligence, the government contends, the president may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs," the court explained.
The judges agreed. "First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy," they said. "A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats and increase the chance of leaks regarding sensitive executive operations."
Does Bush have the same "constitutional prerogatives" in an authorized war that Carter had in peace? Feingold claims not, demanding censure of the president -- which ought to earn Feingold the censure of enlightened opinion.