Bush and foreign originated/terminated surveilance: illegal?

There are those, largely on the left but not entirely, who argue, quite strongly, that the Bush administration “broke the law” in regards to its warrantless surveilance program.

I have a few thoughts.

First, the President of the United States is not a Prime Minister in a parliamentary system. The office of President, and a number of his powers, exist entirely independently of the Congress. His office is a co-equal branch.

The idea that the President acted illegally because Congress passed a statute that proscribes particular actions, and the President acted contrary to those proscriptions, is simplistic. Congress doesn’t decide what the powers of the President are. Congress passes laws that he is charged with executing (though whether he MUST execute those laws has always been questionable). His powers, beyond those specifically enumerated in the Constitution, come into being as needed to execute those laws.

The President claims that he has an inherent power, derived from the Constitution’s Article II, Section 2 designation of the President as the “Commander in Chief of the Army and Navy of the United States,” to prosecute this current “war” as he deems appropriate.

The President is the Commander in Chief: he has the supreme power to direct the United States military. The Congress, as provided in Article I, Section 8, has the power “to make Rules for the Government and Regulation of the land and naval Forces.” The constitutional question here is whether Congress has the power to regulate the actions of the military and executive in the prosecution of its military actions. Many, including I, would argue that it does not have the power to direct or regulate the tactical or strategic actions of the military. Those are not a part of “Government and Regulation.” Congress has been granted no power to determine where a President may bomb, who the generals may attack, when and where. Neither has Congress been granted a power to determine how a President may spy on the enemies of the nation.

The question ultimately revolves around whether the President’s program constitutes a “reasonable” search, per the 4th Amendment. And that is a question for the Judiciary. I believe that the Supreme Court, should it be called upon to decide this case, will strongly support the President.

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