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, (430 F.2d 165 (5th Cir. 1970), rev'd on other grounds 403 U.S. 698, 91 S. Ct. 2068, 29 L. Ed. 2d 810 (1970)), that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.
This is a great find but I'm wondering why this case hasn't been cited by anyone. The lack of comment regarding this decision makes me think there may be other court cases since that have muddied the waters.
This is great background info. The way I see it, though, the POTUS doesn't even need a court's "permission" to fight a war. Fighting a war is part of his Constitutional obligation and authority.
Congress was trying to fool with the Powers of the President but I did find a statement that says the President has separate Powers in regard to surveillance on the FISA site. I will go back.
Executive Orders by the President is an issue in which Congress does not and cannot interfere. If they could, you can be darn sure they would want to review each case themselves.
Congress is a "messy place". It is why we wound up with a President with special Powers. We expect all our Presidents to be "moral" and protect our Nation and the danger (I believe according to John Adams) is not a King but a Congress who effectively shuts down the government because of their individual interests.
Is this the Jabara case? If so, it's been cited and dissected.
Is this the Jabara case? If so, it's been cited and dissected.
See discussion at http://www.freerepublic.com/focus/f-news/1548460/posts?page=91#91, and scroll down to posts 98 & 100 for my take.
But then it came down to this fundamental issue (and it's basically the same one raised in the post above): how can Congress usurp the President's Constitutional role to prosecute a war against our enemies. Because that's essentially what FISA does in time of war.
Sidenote: 9/13/2001 SJ Res 23 says "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").
In any case, Cole did finally cite some allegedly precedent case that illustrates the President does not have such powers if Congress has already limited them by statute. Unfortunately I did not hear his entire assertion or the name of the case he was referring to.
So there may be something out there, but it's pretty obscure at the moment.