The Law, The Constitution and Warrantless Surveillance
Must the President of the United States obey the law? Ordinarily, the answer of course is yes, unless the law itself is unconstitutional.
It is “uncontroversial,” wrote then-Assistant Attorney General Walter Dellinger in a 1994 memorandum for the Clinton White House, that “there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.”
See “Presidential Authority to Decline to Execute Unconstitutional Statutes,” Office of Legal Counsel, Department of Justice, November 2, 1994.
However, the President does not have the last word on what is or is not constitutional. That decision belongs to the Supreme Court.
A new bill introduced by Sen. Charles Schumer (D-NY) yesterday would set the stage for the Supreme Court to consider the legality of the Bush Administration’s warrantless surveillance program by granting legal standing to litigants seeking to challenge the program.
“Did the President go outside the ambit of the law about asking for a warrant?” asked Sen. Schumer. “Some think yes, and they are pretty sure of that. Some think no, and they are pretty sure of it. They are pretty sure that he couldn’t. Many are not sure at all.”
“The most logical place for this to be settled is in the U.S. Supreme Court,” he said in his March 29 introductory statement on the new bill (S. 2468).
The Senate Judiciary Committee held a hearing on March 28 featuring four former judges of the Foreign Intelligence Surveillance Court and other expert witnesses who testified on issues surrounding the warrantless surveillance program and Senator Specter’s legislative proposal on the subject.
Prepared statements from Sen. Leahy, FISA expert Morton Halperin of the Center for American Progress, and former Justice official David Kris (but not yet the statements of the judges) can be found here.
A rare interview with FISA Court Judge George Kazen of Laredo, Texas appeared in the Dallas Morning News earlier this week.
See “Judge juggles busy docket, secret duty” by Todd J. Gilman, Dallas Morning News, March 28 (free but intrusive registration required).
The emphasis on interagency consensus, while well-intentioned, has become a structural impediment to bold or innovative policy options. When every agency effectively holds veto power over proposals, the path of least resistance becomes maintaining existing approaches with minor modifications.
The Federation of American Scientists supports H.R. 471, the re-introduction of the Fix Our Forests Act.
As people become less able to distinguish between what is real and what is fake, it has become easier than ever to be misled by synthetic content, whether by accident or with malicious intent. This makes advancing alternative countermeasures, such as technical solutions, more vital than ever before.
Throughout this phase of work, there are many actions hiring managers and staffing specialists can take to streamline the process and improve the quality of eligible candidates. Most importantly, hiring managers and staffing specialists can collaborate within and across agencies to expedite and simplify the process.