Friday, March 24, 2006

Cato Institute scholar Roger Pilon speaks at UNL Law School for the Federalist Society on domestic spying Thursday March 23, Cato scholar Pilon argued that the Congress did not have legitimate authority through FISA to limit the President's inherent authority to conduct warrantless surveillance for national security purposes. Article I Section 1 vests "All legislative powers herein granted in the Congress to which Constitution gives Congress enumerated powers." Article II Sec 2 states 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." Specific Congressional powers in Art 1 Section 8: "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States" To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. Pilon argues that enumerated powers of Congress do not allow it to encroach on the power of the President as Commander in Chief. As commander in Chief the President must direct military forces to repel and prevent attacks. Court cases that have touched on the issue tangentially assumed that the fourth amendment would not hinder the President's inherent authority to ensure national security. See Katz (footnote 23 and White concurring opinion) Keith, Truong. Also the FISA appeals court has upheld inherent Presidential power to conduct warrantless surveillance for national security, See In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) (cited in Global security) (“[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”) (emphasis added); accord, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc); United States v. Brown, 484 F.2d 418 (5th Cir. 1973).

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