By both its bare language as well as intent, the Fourth Amendment is not a guarantee to be fee from "warrantless" searches and seizures, only "unreasonable" searches and seizures. While the courts have held that almost always that means a warrant is required, their are constitutional exceptions to that requirement and warrantless foreign intelligence intercepts are one those exceptions. You do not have an unimpeded right to communicate with foreign terrorists.
"However, because 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 what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."
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"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."
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"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."
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"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."
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"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
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:-)
One can bullet-point out good counter-arguments to each of those points - numerous legal commentators have done so, and it appears increasingly likely that we will soon get to watch the arguments from both sides presented again at congressional hearings.
I don’t thinks such debate will change many minds though – this debate is really, it seems to me, mostly between those who believe that physical security is the paramount concern, and those who believe that the most important point is that conditions of perfect security are possible only under conditions of perfect tyranny, and are more willing to surrender some security to maintain protections from abuses of governmental power.
IMO such preferences are more matters of temperament than logic, with the logical arguments marshaled after the fact in support of decision made below the level of rational decision, and the best we can hope for in such discussion is that it be conducted civilly, in the recognition that both side can be “right” given that they value the same things differently.
So to the extent I can sway opinion at all, I’d attempt to do so by pointing out under the logic of some of the Administration supporters - and apparently for some members of the Administration as well - there appears to be no limit whatsoever to Presidential power other perhaps that refusal by Congress to appropriate funds to pursue polices with which a majority of it’s members are in disagreement.
And that as in times past Parliaments have been reduce to such methods to control the excess of Kings and Queens possessed of various theories of unlimited executive powers, I suppose we may eventually be reduced to such methods here as well – though we used to have a IMO perfectly good Constitution which was specifically designed to avoid such difficulties before a majority of Amercing were frightened into abandoning it by a handfull of knife welding religious fanatics.
Do you realize that the first two cases you quoted are pre-FISA? Meaning they're way beside the point.
The third case mentioned merely decides that FISA is Constitutional. FISA of course is the law which Bush claims authority to ignore, so a case dealing with FISA's constitutionality in no way addresses the real issue -- whether the President is free to ignore the supposedly Constitutional law.
Finally, the last case you quoted only goes to show the absurdity of the administration's defense. I mean, the President claims that the AUMF rendered FISA a nullity. So why then did he push to get FISA amended 5 weeks after he was supposedly authorized to ignore FISA altogether? And don't you see the irony in his going to court to defend the post-911 FISA changes? Remember, this is the law which he claims he doesn't have to follow. Why would he care what the court had to say when he was free to ignore them anyway?
Essentially, not one of those cases you quoted addresses the real question. Can the President constitutionally conduct surveillance which is explicitly forbidden by statute?