http://www.whitehouse.gov/news/releases/2006/01/20060122.html
The President Has The Inherent Authority Under The Constitution, As
Commander-In-Chief, To Authorize The NSA Terrorist Surveillance
Program. AG GONZALES: "I might also add that we also believe the
President has the inherent authority under the Constitution, as
Commander-in-Chief, to engage in this kind of activity. Signals
intelligence has been a fundamental aspect of waging war since the
Civil War, where we intercepted telegraphs, obviously, during the
world wars, as we intercepted telegrams in and out of the United
States. Signals intelligence is very important for the United States
government to know what the enemy is doing, to know what the enemy is
about to do." (The White House, Press Briefing, 12/19/05)
The Congress Confirmed And Supplemented This Authority When It Passed
The Authorization For The Use Of Military Force In The Wake Of The
9/11 Attacks. AG GONZALES: "Now, in terms of legal authorities, the
Foreign Intelligence Surveillance Act ... requires a court order
before engaging in this kind of surveillance that I've just discussed
and the President announced on Saturday ... unless otherwise
authorized by statute or by Congress. That's what the law requires.
Our position is, is that the authorization to use force, which was
passed by the Congress in the days following September 11th,
constitutes that other authorization, that other statute by Congress,
to engage in this kind of signals intelligence." (The White House,
Press Briefing, 12/19/05)
The Supreme Court Ruled That The AUMF's Authorization To "Use All
Necessary And Appropriate Force" Encompasses The "Fundamental
Incident[s] Of Waging War." AG GONZALES: "[O]ne might argue, now, wait
a minute, there's nothing in the authorization to use force that
specifically mentions electronic surveillance. Let me take you back to
a case that the Supreme Court reviewed this past - in 2004, the Hamdi
decision. ... [In Hamdi, the Supreme Court said that] it was clear and
unmistakable that the Congress had authorized the detention of an
American citizen captured on the battlefield as an enemy combatant for
the remainder - the duration of the hostilities. So even though the
authorization to use force did not mention the word, 'detention,' she
felt that detention of enemy soldiers captured on the battlefield was
a fundamental incident of waging war, and therefore, had been
authorized by Congress when they used the words, 'authorize the
President to use all necessary and appropriate force.'" (The White
House, Press Briefing, 12/19/05)
Interception Of Communications Has Been Authorized Since President
Roosevelt In 1940. "[Interception of communications for foreign
intelligence purposes] have been authorized by Presidents at least
since the administration of Franklin Roosevelt in 1940." ("Legal
Authorities Supporting The Activities Of The National Security Agency
Described By The President," U.S. Department Of Justice, 1/19/06)
Every Federal Appellate Court To Rule On The Issue Has Concluded That
The President Has Inherent Authority To Conduct Warrantless Searches.
"The courts uniformly have approved this longstanding Executive Branch
practice. Indeed, every federal appellate court to rule on the
question has concluded that, even in peacetime, the President has
inherent constitutional authority, consistent with the Fourth
Amendment, to conduct searches for foreign intelligence purposes
without securing a judicial warrant." ("Legal Authorities Supporting
The Activities Of The National Security Agency Described By The
President," U.S. Department Of Justice, 1/19/06)
On 1/23/06, Tim Heald wrote:
> I don't think that the 4th is really clear on who grants warrants is it?
>
> It's always been up to a court, an open court, to decide.
>
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