BY PETE DU PONT
Tuesday, January 17, 2006 12:01 a.m. EST
Has President Bush exceeded his constitutional authority or acted illegally in authorizing wiretaps without a warrant on calls between American citizens in the United States and people abroad who are, or are suspected of having ties to, terrorists?
Benjamin Franklin (whose 300th birthday is today) would not have thought so. In 1776 he and his four colleagues on the Continental Congress's foreign affairs committee (called the Committee of Secret Correspondence) unanimously agreed that they could not tell the Congress about the covert assistance France was giving the American Revolution, because it would be harmful to America if the information leaked, and "we find by fatal experience that Congress consists of too many members to keep secrets."
While the Constitution was being ratified in 1787 John Jay (later the first chief justice) in Federalist No. 64 praised the Constitution for giving the president power "to manage the business of intelligence in such manner as prudence may suggest." And of course Article II of the ratified Constitution gave the president the nation's "Executive power" and states that "the President shall be the Commander in Chief of the Army and Navy of the United States."
When in the early 1800s President Jefferson hired foreign mercenaries to invade Tripoli and free American hostages, he did not inform Congress in advance. In 1818, when a controversy arose over a diplomatic mission abroad, House Speaker Henry Clay told his colleagues that since the president had paid for the mission with his contingent fund it would not be "a proper subject for inquiry."
So it is clear that the Constitution's original intent was that the president had the authority to take undisclosed foreign actions to protect America.
In modern times, the 1947 National Security Act contained no provision for congressional oversight of presidential national-security actions. In 1968 Congress enacted the Safe Streets Act, providing that nothing in the act "shall limit the power of the President to take such actions as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities."
When President Carter signed the Foreign Intelligence Surveillance Act in 1978, his attorney general noted that it did not "take away the power of the president under the Constitution," and in 1994, when President Clinton expanded FISA, his administration agreed. As constitutional scholar Robert Turner noted in The Wall Street Journal last month, "Section 1811 of the FISA statute recognizes that in a period of authorized war the president must have some authority to engage in electronic surveillance 'without a court order.'"
America's judicial system has reached the same conclusion. The Supreme Court's 1972 decision in U.S. v. U.S. District Court (known as the "Keith case") held that the Fourth Amendment's "unreasonable searches and seizures" clause applied to domestic wiretapping, but refrained from concluding that it restricts "the president's surveillance power with respect to the activities of foreign powers within or without this country."
In 1980 the Carter administration argued in the Truong case that the government could conduct domestic, warrantless wiretaps of conversations between a U.S. and a Vietnamese citizen who had been passing on U.S. military intelligence to the North Vietnamese. The Supreme Court agreed.
In 1982 a federal court of appeals ruled that "the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agent."
And in 2002 the FISA court said that the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."
America is engaged in a global war against terrorists whose intention is to inflict significant damage upon us. They attacked the World Trade Center in 1993, at U.S. embassies in Africa in 1998, the USS Cole in 2000, and of course in New York and Washington in 2001.
If we had known that one of those terrorist attacks was coming, could our government have electronically eavesdropped on the attackers without a warrant?
If a known Al Qaeda terrorist had made a phone call from outside the country to someone inside America about these or other attacks, could our government have listened in?
If we had found an American phone number on a captured terrorist's computer before one of the attacks, could the military have listened in to the next call without a warrant?
If we know of a conversation set for a week from Wednesday between an Al Qaeda operative in Iraq and a sympathetic American citizen in Illinois, one could argue there is time to seek a FISA warrant. But if the CIA has only a three minute knowledge of the call, may it listen in without one?
The answer to all these questions is yes; the federal courts have consistently ruled that the constitution gives the president the authority--as "Commander in Chief" or using his "executive Power"--to acquire foreign intelligence without warrants or other approvals.
There is of course a different view held by America's liberal left. Democratic chairman Howard Dean somehow believes that warrantless surveillance is "a serious blow to our ability to fight and win the war on terror."
And Ted Kennedy said last week that what the President has done in using his constitutional powers to listen in to terrorist communications is "such an arrogant and expansive view of executive power" that it "would have sent chills down the spines of our Founding Fathers."
But of course he has it backward too--it is what Sen. Kennedy believes that would have sent chills down the spines of Benjamin Franklin and our Founding Fathers.
Mr. du Pont, a former governor of Delaware, is chairman of the Dallas-based National Center for Policy Analysis. His column appears once a month.
