George Washington on warrantless surveillance
Author's note: I know that at most five people want to read my thoughts on the traditional separation of powers. It's just that public discourse in the US is so broken, unserious, and partisan that I sometimes get this image of my college-age children, ten years hence, asking what I did about it. And then I write something so that I can tell them then that back in 2006 I commanded the tide to stop. Take heart, though. Coming up are a few postings on model-view-presenter, web applications, and the testing implications.
So here's the way I understand it.
Congress established a court and a law, FISA, governing thewiretapping of foreign intelligence agents. That court has rarely denied a warrant, though they've modified some larger number. Warrantless surveillance is allowed for fifteen days (after declaration of war), three days (to gather evidence to be used for a warrant application), or one year (but only of foreign nationals).
The three-day period is too short.
The authorization to use military force that followed 9/11 is a statute, the FISA law explicitly says it applies "except as authorized by statute", and the statute acted to trigger that exception. Therefore, judicial oversight is not needed. (Some of the lawmakers have denied that the law was intended to modify FISA in this way, pointing to explicit provisions that were rejected, but the Administration's argument is that the law says what it says.)
The President's constitutional role as Commander in Chief overrules, in this case, the Congress's constitutional role of making the laws the Executive executes. Therefore, congressional authorization is not needed.
Other presidents exercised the same power. (There is much argument about how true that is.)
It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with itsadministration, to confine themselves within their respectiveconstitutional spheres, avoiding in the exercise of the powers of onedepartment to encroach upon another. The spirit of encroachment tendsto consolidate the powers of all the departments in one, and thus tocreate, whatever the form of government, a real despotism. A justestimate of that love of power, and proneness to abuse it, whichpredominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in theexercise of political power, by dividing and distributing it intodifferent depositaries, and constituting each the guardian of thepublic weal against invasions by the others, has been evinced byexperiments ancient and modern; some of them in our country and underour own eyes. To preserve them must be as necessary as to institutethem. If, in the opinion of the people, the distribution ormodification of the constitutional powers be in any particular wrong,let it be corrected by an amendment in the way which the Constitutiondesignates. But let there be no change by usurpation; for though this,in one instance, may be the instrument of good, it is the customaryweapon by which free governments are destroyed. The precedent mustalways greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.
The Administration has steadfastly refused to describe limitations on its powers. When signing new laws (such as the recent torture ban), the President has expressly reserved the right to bypass them because of his commander-in-chief power. Other presidents have used "signing statements" in the same way, but this one uses them far more often. (As far as I know, the legal force of signing statements has yet to be decided.)
Further, to my knowledge, the Administration has not proposed any bills to remedy the claimed defects in FISA. (In the searching that led to all these links, I found claims that the Republican majority had offered such, but were rebuffed. I didn't find primary sources, though.) By going the legislative route, they would involve all three branches of government in these important decisions.
The Executive branch is not showing the caution that Washington called for. It's unconservative, since conservatism—if it is to mean anything—ought to mean a healthy distrust of messing with what works in hope of something better. I'm a strange mixture of conservative and what (in the US) is called liberal. But when it comes to the American presumption that you need a system designed to work despite being run by knaves and scoundrels, not because it's run by wise men, I'm conservative.
Until the Administration demonstrates that they are being cautious about encroaching on the other branches (by, say, giving examples of potential wartime powers they do not claim), or argues publicly that they require more powers, the people of the US should urge their representatives in Congress to push back against any appearance of usurpation.
P.S. I know from Google searching that many people can not distinguish an argument about separation of powers from a desire to leave Al Qaeda's phones untapped. So just let me say that I don't have enough information to have an opinion about the specific surveillance in question.