AG Gonzalez Defends NSA Warrantless Spying

Late last week, Attorney General of the United States Alberto Gonzalez handed Congress a 42-page report defending the warrantless domestic spying undertaken by the National Security Agency since September 11, 2001. The Congressional Research Service earlier in the month issued a report that took a less clear-cut view. As a matter of legal reasoning, one must side with the CRS because the Gonzalez brief is at best wrong and at worst deceitful.

The Justice Department’s report to Congress says that the president has the power to order this spying under Article II of the Constitution and under the congressional resolution authorizating the use of force against Al Qaeda. “These NSA activities are lawful in all respects,” Gonzalez wrote in his cover letter to Senate leaders. “They represent a vital effort by the president to ensure that we have in place an early warning system to detect and prevent another catastrophic terrorist attack on America.”

However, even the most cursory understanding of constitutional law casts severe doubt on this reasoning. The Fourth Amendment protects Americans from “unreasonable searches and seizures,” and requires warrants to be issued only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Founding Fathers would have been appalled at the idea of a warrantless search, as their language clearly shows.

Moreover, the Amendments trump both domestic law and the original language of the Constitution. In the original, Senators were selected by state legislatures; the 17th Amendment provides for direct popular vote in selecting them, and this method is now used. In the original, Congress is given the power the legislate; the First Amendment prevents Congress from passing laws that abridge freedom of religion, press, speech and assembly – the courts throw out laws that circumscribe these rights and have done for over 200 years. Logically, then, any power of the president to order warrantless searches that may have resided in his power to make war under Article II is limited by the (later) Fourth Amendment. Only another amendment can affect these protections, just as the 21st Amendment repealed the 18th that provided for prohibition of alcohol. There is no such amendment affecting the 4th.

Along the same lines, legislation is subordinate to the constitution and ratified international treaties. Any power congress may have given the president when it authorized the use of “all necessary” force against Al Qaeda is limited to those powers that are within constitutional boundaries. The attorney general and others who support the warrantless spying will argue that it is necessary to protect America from attack, claiming that the spying is only done against those who are known members of or suspected of contact with Al Qaeda. Proof would be nice. Proof that would stand up in court would be better. Unsubstantiated denunciation is appropriate only within a Stalinist regime.

Finally, if the president is allowed to ignore one amendment to the constitution because he needs the added power to protect America, surely he is allowed to ignore all of them, and in fact the rest of the constitution as well. So, good-bye to the two-term limits set in the 22nd Amendment. And for that matter, the next election becomes optional as well. At least when the Roman Senate handed the Republic over to a dictator, Octavian was a competent administrator. Mr. Bush is a failed oil man – who surely should not be allowed to the power he claims.


© Copyright 2006 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent.
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