Censure Feingold
by Terence Jeffrey
townhall.com
Mar 15, 2006
Unlike Sen. Russell Feingold, the Wisconsin Democrat seeking to censure President Bush for ordering the interception of communications in and out of the United States involving persons with suspected links to al-Qaeda, Democratic President Franklin Roosevelt had no qualms about warrantless eavesdropping to protect the United States against attack.
Neither did Harry Truman.
There is a difference, however, between the eavesdropping Roosevelt and Truman authorized and the eavesdropping Bush is doing. Roosevelt and Truman did it in peacetime without congressional authorization. Bush is doing it during a war that Feingold voted on Sept. 14, 2001, to authorize.
Nonetheless, Roosevelt and Truman acted within their constitutional authority to defend the nation against attack. They were doing their duty, as is President Bush.
But in the Senate on Monday, while introducing his censure resolution, Feingold said, "The president's claims of inherent executive authority, and his assertions that the courts have approved this type of activity, are baseless."
FDR could not have agreed. On May 21, 1940, the United States was at peace, but Roosevelt wasn't taking chances.
"It is too late to do anything about it after sabotage,
assassination and 'fifth column' activities are completed,"
Roosevelt wrote Attorney General Robert Jackson in a memorandum cited by Senate Intelligence Chairman Pat Roberts in a letter he sent last month to Senate Judiciary Chairman Arlen Specter.
"You are, therefore, authorized and directed in such
cases as you may approve, after investigation of the need
in each case, to authorize the necessary investigation
agents that they are at liberty to secure information by
listening devices directed to the conversation or other
communications of persons suspected of subversive
activities against the government of the United States,
including suspected spies. You are requested furthermore
to limit these investigations so conducted to a minimum
and to limit them insofar as possible to aliens."
(Emphasis added.)
Truman went further. Testifying before the Church Committee on Oct. 29, 1975, Attorney General Edward Levi quoted a letter that Attorney General Tom Clark sent Truman in 1946. Clark wanted to continue FDR's program. Warrantless eavesdropping, he argued, was needed
"in cases vitally affecting the domestic security, or
where human life is in jeopardy."
In his letter to Specter, Roberts notes that
"Truman broadened the scope of the authorization by
removing the caveat that such surveillance should be
limited 'insofar as possible to aliens.'"
Federal appeals courts have upheld the authority Roosevelt and Truman used.
"(B)ecause of the president's constitutional duty to act
for the United States in the field of foreign relations,
and his inherent power to protect national security in
the context of foreign affairs, we reaffirm ... that the
president may constitutionally authorize warrantless
wiretaps for the purpose of gathering foreign
intelligence,"
the U.S. Court of Appeals for the Fifth Circuit ruled in the 1973 case of United States v. Brown.
Even after President Carter signed the Foreign Intelligence Surveillance Act of 1978, which required warrants for domestic intelligence wiretaps, Carter's Justice Department went into federal court to defend warrantless wiretapping for national security reasons.
Truong Dinh Hung, a Vietnamese national living in the United States, and Ronald Humphrey, a U.S. citizen who worked for the U.S. Information Agency, had appealed their espionage convictions, which resulted from Humphrey passing classified documents to Truong, who sent them to Vietnamese officials in Paris in 1977.
"Truong's phone was tapped and his apartment was bugged
from May 1977 to January 1978,"
explained the Fourth Circuit's 1980 opinion in United States v. Truong.
"The telephone interception continued for 268 days, and
every conversation, with possibly one exception, was
monitored and virtually all were taped. The eavesdropping
device was operative for approximately 255 days, and it
ran continuously. No court authorization was ever sought
or obtained for the installation and maintenance of the
telephone tap or the bug. The government thus ascertained
that Humphrey was providing Truong with the copies of
secret documents."
Lo and behold, Carter's Justice Department claimed Carter had a "constitutional prerogative" to conduct this warrantless wiretap.
"In the area of foreign intelligence, the government
contends, the president may authorize surveillance
without seeking a judicial warrant because of his
constitutional prerogatives in the area of foreign
affairs,"
the court explained.
The judges agreed.
"First of all, attempts to counter foreign threats to the
national security require the utmost stealth, speed and
secrecy,"
they said.
"A warrant requirement would add a procedural hurdle that
would reduce the flexibility of executive foreign
intelligence initiatives, in some cases delay executive
response to foreign intelligence threats and increase the
chance of leaks regarding sensitive executive operations."
Does Bush have the same "constitutional prerogatives" in an authorized war that Carter had in peace? Feingold claims not, demanding censure of the president -- which ought to earn Feingold the censure of enlightened opinion.
Terence P. Jeffrey is the editor of Human Events.
Copyright © 2006 Creators Syndicate
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