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Occ posted an article on the Congressional Research Service, however I think the report and citations within that report are revealing:
| quote: | If Congress meant for FISA to occupy the entire field of electronic surveillance of the type that is being conducted pursuant to the President's executive order, then the operation may fall under the third tier of Justice Jackson's formula, in which the President's "power is at its lowest ebb" and a court could sustain it only by "disabling the Congress from acting upon the subject." In other words, if FISA, together with Title III, were found to occupy the field, then for a court to sustain the President's authorization of electronic surveillance to acquire foreign intelligence information outside the FISA framework, FISA would have to be considered an unconstitutional encroachment on inherent presidential authority.
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The statutory language in FISA and the legislative history of the bill that became FISA, S. 1566 (95th Cong.), reflect the Congress's stated intention to circumscribe any claim of inherent presidential authority to conduct electronic surveillance, as defined by the Act, to collect foreign intelligence information, so that FISA would be the exclusive mechanism for the conduct of such electronic surveillance. Thus, in the conforming amendments section of the legislation, the previous language explicitly recognizing the President's inherent authority was deleted from 18 U.S.C. § 2511(3), and the language of 18 U.S.C. § 2511(f) was added to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, which states, in part, that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of that Act, and the interception of domestic wire, oral, and electronic communications may be conducted."
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The passage of FISA and the inclusion of such exclusivity language reflects Congress's view of its authority to cabin the President's use of any inherent constitutional authority with respect to warrantless electronic surveillance to gather foreign intelligence.
The Senate Judiciary Committee articulated its view with respect to congressional power to tailor the President's use of an inherent constitutional power: The basis for this legislation is the understanding -- concurred in by the Attorney General -- that even if the President has an "inherent" constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance.
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However, the Court appears to have relied on a more limited interpretation of the scope of the AUMF than that which the Administration had asserted in its briefs, and, declaring that a "state of war is not a blank check for the President when it comes to the rights of the Nation's citizens"...To be sure, there can be little doubt that Congress, in enacting the AUMF, contemplated that the armed forces would deploy their military intelligence assets in Afghanistan or wherever else the conventional aspect of the conflict might spread, but a presumption that the authorization extends to less conventional aspects of the conflict could unravel the fabric of Hamdi, especially where measures are taken within the United States.
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The fact that Congress amended FISA subsequent to September 11, 2001, in order to maximize its effectiveness against the terrorist threat further bolsters the notion that FISA is intended to remain fully applicable.... Even assuming, for argument's sake,
that the NSA operations are necessary to prevent another terrorist attack, a presumption that Congress intended to authorize them does not necessarily follow.
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However, some of these concerns may be minimized or addressed by virtue of the fact that, where appropriate, oversight may be conducted in executive session; and access to classified information, including information relating to sensitive intelligence sources and methods, may be limited by statute, by House and Senate procedures, or both. [...]
In addition, no legal precedent appears to have been presented that would support the President's authority to bypass the statutory route when legislation is required, based an asserted need for secrecy.
http://www.opencrs.com/document/M20060105 |
This is a NONPARTISAN group, mind you.
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Whence September dusk grows crisper still,
with leaves all crimson conquered,
I yearn to shout,
and dance about,
and stick pickles in my honker...
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