(c/o Scott)

FISA vs. the Constitution

Wall Street Journal
December 28, 2005; Page A14

In the continuing saga of the surveillance "scandal," with some
congressional Democrats denouncing President Bush as a lawbreaker and even
suggesting that impeachment hearings may be in order, it is important to
step back and put things in historical context. First of all, the Founding
Fathers knew from experience that Congress could not keep secrets. In 1776,
Benjamin Franklin and his four colleagues on the Committee of Secret
Correspondence unanimously concluded that they could not tell the
Continental Congress about covert assistance being provided by France to the
American Revolution, because "we find by fatal experience that Congress
consists of too many members to keep secrets."

When the Constitution was being ratified, John Jay -- America's most
experienced diplomat and George Washington's first choice to be secretary of
state -- wrote in Federalist No. 64 that there would be cases in which "the
most useful intelligence" may be obtained if foreign sources could be
"relieved from apprehensions of discovery," and noted there were many "who
would rely on the secrecy of the president, but who would not confide in
that of the Senate." He then praised the new Constitution for so
distributing foreign-affairs powers that the president would be able "to
manage the business of intelligence in such manner as prudence may suggest."

In 1790, when the first session of the First Congress appropriated money for
foreign intercourse, the statute expressly required that the president
"account specifically for all such expenditures of the said money as in his
judgment may be made public, and also for the amount of such expenditures as
he may think it advisable not to specify." They made no demand that
President Washington share intelligence secrets with them. And in 1818, when
a dispute arose over a reported diplomatic mission to South America, the
legendary Henry Clay told his House colleagues that if the mission had been
provided for from the president's contingent fund, it would not be "a proper
subject for inquiry" by Congress.

* * *
For nearly 200 years it was understood by all three branches that
intelligence collection -- especially in wartime -- was an exclusive
presidential prerogative vested in the president by Article II, Section 1 of
the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall
and many others recognized that the grant of "executive power" to the
president included control over intelligence gathering. It was not by chance
that there was no provision for congressional oversight of intelligence
matters in the National Security Act of 1947.

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