Presidential Power and the Surveillance of Foreign Powers Conspiring with United States Citizens

by Hugh Hewitt

Overlooked in most of the commentary on the New York Times article is the simple, undeniable fact that the president has the power to conduct warantless surveillance of foreign powers conspiring to kill Americans or attack the government. The Fourth Amendment, which prohibits "unreasonable" searches and seizures has not been interpreted by the Supreme Court to restrict this inherent presidential power. The 1978 Foreign Intelligence Surveillance Act (an introduction froma critic of the Act is here) cannot be read as a limit on a constitutional authority even if the Act purported to do so.

"Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."

That is from the 1972 decision in United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president's executive order ought to begin and end. The FISA statute can have no impact on a constitutional authority, and more than an Act of Congress could diminish the First Amendment protection provided newspapers. Statutes cannot add to or detract from constitutional authority. (They can influence the Supreme Court's interpretation of the president's authority, as discussed by Justice Jackson in his famous opinion in the Steel Seizure Cases.) The 1972 decision contains a colloquy from the Senate floor between Senators Hart, Holland, and McClellan on that illustrates the correct understanding of this crucial principle:

For the rest of the article click here