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A Warrantless Attack By: Michael P. Tremoglie
FrontPageMagazine.com | Monday, December 26, 2005


Since President Bush has been in office, the American public has endured a steady stream of bizarre conspiracy theories and lies about him by his political enemies – including the liberal media.

The president has been blamed for everything from knowing in advance about 9/11 (proffered by DNC Chairman Howard Dean and current Georgia Democrat Congresswoman Cynthia McKinney) to Rathergate.

Now the most recent iteration of the "Bush is a Nazi" mantra is that President Bush illegally authorized unconstitutional, warrantless, electronic surveillance of American citizens. Specifically Bush is accused of illegally authorizing warrantless, electronic surveillance of the international communications of people with known links to al-Qaeda and related terrorist organizations.

Is this illegal?

According to the soi disents guardians of our civil liberties – such as the ACLU – it is. These noble people have already acted as judge, jury, and executioner (so much for their professed worship of the Bill of Rights).

Also Democratic Senator Russ Feingold called the president "King George Bush." Pat Leahy, who in 1987 resigned from the Senate Intelligence Committee because he allegedly leaked classified information, said, "The Bush administration seems to believe it is above the law." Sen. Robert Byrd snickered at the idea that the president has Constitutional authority. John Kerry is talking about impeachment.

As usual, the mainstream media journalists are trying to slant the information to portray President Bush as negatively as possible. A December 18, 2005, Los Angeles Times story by staff writers David G. Savage and Bob Drogin claimed:

Bush said his decision was "fully consistent with my constitutional responsibilities and authorities." And the president's lawyers have maintained that the commander in chief has the "inherent" authority to act in the interest of national security, even if he overrides the law...But the Supreme Court did not accept that claim when it was tested in the past…In 1972, the justices unanimously rejected President Nixon's contention that he had the power to order wiretapping without a warrant to protect national security.

This is only partly true.

They eventually tell the whole story a few paragraphs later by writing, "(Justice Lewis F.) Powell said the court was not ruling on the ‘president's surveillance power with respect to the activities of foreign powers, within or without this country.’" (Emphasis added.)

Also, no one ever said President Bush could violate the law as the Times’ piece claims. What the administration’s legal advisers have said is that he acted legally.

The Supreme Court case to which the L.A. Times journalists referred is known as "Keith." It is just one part of the jurisprudence about warrantless surveillance. The court’s opinion stated, "We emphasize, before concluding this opinion, the scope of our decision…this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents."

The jurisprudence involving wiretaps dates to 1928. The Supreme Court case of Olmstead v. United States (217 U.S. 438), a criminal case, resulted with the Court stating the use of warrantless wiretaps was not unconstitutional, because the Fourth Amendment's warrant requirement did not include conversations. The Court ruled, "The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house, and messages while passing over them, are not within the protection of the Fourth Amendment."

Subsequently, the 1974 Third Circuit Court’s opinion in U.S. v. Butenko was, "foreign intelligence gathering activity…may be conducted through warrantless electronic surveillance." The Court stipulated "[a]s Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage."

The Fifth Circuit 1974 case of Ivanov v. United States (419 U.S. 881), stated that "warrantless electronic surveillance (is) permitted so long as the primary purpose was to obtain foreign intelligence."

Finally, the opinion of the DC District Court in the 1980 case of Chagnon v. Bell confirms presidential authority to conduct warrantless surveillance. It said:

Examination of presidential practice in this area lends further support to the District Court's finding that the Truong tap violated no "clearly established" law. As we suggested earlier, every President since Franklin D. Roosevelt has claimed the "inherent" constitutional power to authorize warrantless surveillance in cases vitally affecting the national security. Furthermore, all Presidents to hold office since Katz was decided have advocated a broad exception to the warrant requirement for surveillance targeted at agents of foreign governments. Indeed, public and congressional recognition of the consistency of such assertions of presidential power…. (Emphasis added.)

The jurisprudence involved with electronic surveillance for foreign intelligence collection - and the fact the warrantless searches by law enforcement are not uncommon and legal - would indicate that Bush’s assertion of authority is correct. The Judicial Branch and the Legislative Branch of the federal government have always acknowledged that the Executive Branch has authority to act in the interest of national security – especially when foreign threats are involved.

These facts do not lend any credibility to the hysterical pronouncements by Democrats and other political enemies of the president that he is usurping power. The facts certainly do not justify the attitude of the mainstream media.

When a journalist asked President Bush a question implying that he asserted unchecked powers with his approval of electronic surveillance that reporter revealed his ignorance for all the world to see.

The president’s political enemies are either ignorant or blatantly mischaracterizing crucial aspects of American law. One would not expect journalists to know much, however, one would expect that Senators and Congressional Representatives know the law.

It seems the only thing that is really warrantless about this affair is the criticism of the president by those more concerned about obtaining power than protecting the people.

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A former police officer, Michael P. Tremoglie recently published his first novel, A Sense of Duty. His work has appeared in the Philadelphia Inquirer, Philadelphia Daily News, Human Events, and the Pittsburgh Tribune-Review. He has a Master of Science degree from Saint Joseph's University, Philadelphia.


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