Re: President had legal authority to OK taps
 

"if FISA is in fact an unconstitutional limitation of the president's inherent powers, then he is free to comply or not as he pleases."

I'm not an attorney either, but I can't imagine that this is correct. The president can simply decide a law he doesn't want to follow interferes with what he sees as his "inherent" powers and then violates that law?

On the Lehrer show tonight, one of the discussion partricipants said that section 1811 of FISA is the applilcable section. The attorney general has asserted that the president has the power under the authority to use force granted to him by Congress in the wake of 9/11 to wiretap without a warrant. Section 1811 says, "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."

But all this still does not answer my question, which is does FISA cover all warrant requirements for wiretapping, or can there be wiretapping outside of the FISA requirements? My guess is, as you suggest, that an appeal to the Supreme Court will be the only way we get a definitive answer to that question.

I note that the attorney general also claims that Congress was approached about amending FISA and that the administration felt it wouldn't be done. That tells me that the administration thought what it was doing did indeed come under the FISA regulations and, since it couldn't get them revised, decided to go ahead anyway.

Re: President had legal authority to OK taps
 

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Thus if FISA is in fact an unconstitutional limitation of the president's inherent powers, then he is free to comply or not as he pleases. This would be similar to the disputes over the War Powers Act.

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If it is unconstitutional, he has to have it overturned by the courts. He can't unilaterally decide what is constitutional or not, that will be decided by the supreme court.

Re: President had legal authority to OK taps
 

[ QUOTE ]
"if FISA is in fact an unconstitutional limitation of the president's inherent powers, then he is free to comply or not as he pleases."

I'm not an attorney either, but I can't imagine that this is correct. The president can simply decide a law he doesn't want to follow interferes with what he sees as his "inherent" powers and then violates that law?

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The Supreme Court doesn't listen to "what if" cases. If Bush feels the law is unconstitutional, he can either follow it anyways, or decide to ignore it. There's no third procedural option. It's just like every other case where someone (black schoolchildren in Topeka, Scopes, etc.) decided not to follow a law, then challenged its validity when proceedings were brought against them. I'm not sure how court proceedings would arise to test this law, but there's no other way to get a definitive ruling on its consitutionality.

Re: President had legal authority to OK taps
 

bobman, I think you are right in your analysis. I remembered the court action over the line item veto because I remember members of congress challenging it. Their suit was thrown out due to lack of standing. I googled and found the following regarding standing to bring suit:

Traditional standing doctrine requires that a plaintiff have "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Moreover, the personal injury must be "concrete and particularized." Congress cannot grant standing to someone who does not satisfy the Constitutional standing requirements by purporting to authorize them to bring suit.

The line item veto was ultimately struck down when some hospitals affected by a line item veto of certain medicare spending brought suit. Thus it would seem that the only way this thing might be tested in court is for someone who is the subject of a warrantless wiretap to bring suit. But of course it would be almost impossible to prove it had happened since the government will say the matter is classified. And any such subject is obviously going to have to be totally innocent of any suspected wrong-doing or he is not going to be bringing such action.

And just as obviously, no federal prosecutor is going to bring action against the president on this matter, even if he is thought to have violated the law. So the only way for congress to do anything regarding past such actions, would indeed be to attempt to bring impeachment proceedings, which of course isn't going to fly in a repub congress, or even with repubs as a significant minority in the senate.

The only thing congress can do it looks like, is regarding the future by ammending the FISA to make it more clear, which the repubs won't go for either.