Presidential Authority to Gather Foreign Intelligence

Authors


Bruce Fein is a constitutional expert and international consultant who served as associate deputy attorney general under President Ronald Regan. He often testifies before Congress and is a weekly columnist for the Washington Times and the Capitol Leader.

Abstract

President George W. Bush has claimed inherent constitutional authority to collect foreign intelligence on his say-so alone in contravention of the warrant requirements stipulated in the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended six times since 9/11. The constitutionality of FISA, however, is incontestable. It is justified by the Necessary and Proper Clause of Article I, section 8, clause 18 in light of the massive foreign intelligence abuses compiled during forty years of absolute executive power. FISA leaves the separation of powers undisturbed. It regulates only a microscopic percentage of foreign intelligence collection. To sustain President Bush's constitutional claims would “trust me” the measure of our civil liberties, not the checks and balances intended by the Constitution's architects.

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