Unlike Sen. Russell Feingold, the Wisconsin Democrat seeking to censure President Bush for ordering the interception of communications in and out of the
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 Sen. 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
Truman went further. Testifying before the Church Committee on October 29, 1975, Atty. Gen. Edward Levi quoted a letter that Atty. Gen. Tom Clark sent Truman in 1946.
In his letter to Sen. Specter, Sen. Roberts noted 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 5th Circuit ruled in the 1973 case of U.S. 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
“Truong’s phone was tapped and his apartment was bugged from May 1977 to January 1978,” explained the 4th Circuit’s 1980 opinion in
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.