Gonzales defends domestic eavesdropping

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Attorney General Gonzales said today, “Our position is that the authorization to use military force which was passed by the Congress shortly after Sept. 11 constitutes that authority [to wiretap the conversatioins of American citizens without a warrant].” Secretary of State Rice said yesterday, “[The president] has constitutional authorities that derive from his role as commander in chief and his need to protect the country. He has acted within his constitutional authority and within statutory authority.” President Bush claims to support the strict construction of the Constitution and the laws. So, let’s take a look at the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Now let’s look at the powers of the president as commander-in-chief found in Article II:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Finally, let’s look at the operative part of the congressional joint resolution authorizing the president to use force after the September 11 attacks,

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Last time I checked, acts of Congress can’t undo the Constitution. This one in particular authorizes only “appropriate” force, and I would think that unconstituionality is a good measure of inappropriateness. I’m also not sure what in Article II would allow the president to ignore the Fourth Amendment.

Dec 19, 2005 | Comments

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