Declarations of War, the Constitution, and Other Statutory Obligations
Does the President have the authority to conduct doemstic wiretaps without a warrant? According to Reuters, “(Attorney General) Gonzales said Bush has inherent constitutional powers to conduct warrantless surveillance to detect or prevent an attack. He also said a resolution passed by the U.S. Congress after September 11 authorizing the use of military force gave Bush the right to approve the eavesdropping.”
Let’s see what the Constitution, FISA, and the authorization to use force in Iraq have to say:
The President is Commander in Chief of the Armed Forces:
US CONSTITUTION
Article 2, Section 2
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;
But, only Congress can declare war:
US CONSTITUTION
Article 1, Section 8
The Congress shall have power… To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
According to FISA, the President, through the Atty General, can only authorize warrantless wiretaps following a declaration of war.
FOREIGN INTELLIGENCE SURVEILLANCE ACT
SUBCHAPTER I—ELECTRONIC SURVEILLANCE
§ 1811. Authorization during time of war
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
While there have been many uses of force by the US without a declaration of war from Congress (Bosnia, Gulf War, Panama, Grenada, Vietnam, Korea, etc.), the question of the use of electronic surveillance without a warrant is distinct. FISA is explicit in its statement that warrantless wiretapping may only be authorized FOLLOWING a declaration of war.
Do you see a declaration of war? I don’t.
I am not a lawyer (but some of my friends and family members are… but they didn’t help me with this analysis), but it seems that without a declaration of war, there is no Constitutional basis for the President to spy on Americans.
Now, the President and his spokespeople have said that the “terrorist surveillance program” only taps international calls made by al Qa’eda operatives to people in the US, I was stunned to hear the President say in the State of the Union address, “If there are people inside our country who are talking with Al Qaida, we want to know about it, because we will not sit back and wait to be hit again.”
This leaves wide open the question of where the call originated.
Add to the wiretapping reports on the DoD spying on domestic peace activists, and other stories about domestic spying, and I think we need to be very worried about how far the Administration will go in curtailing our civil liberties in order to protect us.
If the track record is an indication, we should be worried, indeed. My understanding is that of the 5,000 or so arrests made in the war on terror, few, if any have resulted in convictions.
And now, to add insult to injury, Cindy Sheehan was arrested at the State of the Union address because she was wearing a shirt that said how many US soldiers have died in Iraq.
Domestic wiretapping, spying on Quakers, infants being barred from flying because they were listed on the no-fly list, and Sheehan being arrested in Congress because of a t-shirt honoring the memory of our dead soldiers. Where will it end?
Links:
War Powers Resolution
Congressional Authorization to Use Force in Iraq
FISA
US Constitution
Transcript of 2006 State of the Union Address
USA Patriot Act
Timeline of Wiretap Laws
- Posted in: Rants, Raves, Reflections
