Well, I've read his article. And, as I anticipated, I'm very suspect of his interpretation of the ruling. Why am I suspect? Because I'm reading the ruling myself, right now.
If you'd like to read it... go here:
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.htmlI'm 16 pages into it, and so far what I see is a ruling that determines whether evidence gathered by FISA surveillance is admissible in criminal trials. It doesn't concern itself AT ALL about whether the President has any inherent authority to conduct warrantless searches. The only time it mentions "executive power" of the President is when it sites the Truong case, which (as I have already pointed out to you) involved warrantless surveillance that was carried out before the enactment of FISA.
A report by the non-partisan Congressional Research Service weighs in on this by saying that the court of review "took forgranted" that the President has the power to conduct warrantless surveillance despite the fact that "much of the other lower courts' discussions of inherent presidential authority occurred prior to the enactment of FISA, and no court has ruled on the question of Congress's authority to regulate the collection of foreign intelligence information."
http://www.fas.org/sgp/crs/intel/m010506.pdfI'm beginning to wonder if Byron even read this ruling.
Have you?
(Adding this after getting to p. 21. The direct quote from the ruling is this:
"We take for granted that the President does have that authority and, assuming that it is so FISA could not encroach on the President's consitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.")That's hardly the homerun Byron touts it to be.
My favorite quote still comes from the Constitution.
"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 probably cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."
I've always thought of the Consitution as a document that guarantees rights to the people, rather than something that gives rights to the government. But of course, I just get that from reading the Federalist papers and such. I figure the best way to know what our founders intended is to see what they had to say about the whole process. I intend to hit that book again very soon (probably over the weekend).
I also want to add that it's very well known that after the American Revolution, the framers were very adamant that Presidential power not be unchecked. I find it hard to believe that they would envision given the President this kind of power. And so far, every single court that has ruled on the subject (the court of review made no such ruling, merely making what they themselves call "an assumption" on which to frame an opposing argument) has ruled that such power should not go unchecked.
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