Bush administration has "pushed the presidential-powers argument beyond what was legally justified or prudent": "'The president's emphatic defense yesterday of warrantless eavesdropping on U.S. citizens and residents marked the third time in as many months that the White House has been obliged to defend a departure from previous restraints on domestic surveillance. In each case, the Bush administration concealed the program's dimensions or existence from the public and from most members of Congress. . . .
'Bush's constitutional argument, in the eyes of some legal scholars and previous White House advisers, relies on extraordinary claims of presidential war-making power. Bush said yesterday that the lawfulness of his directives was affirmed by the attorney general and White House counsel, a list that omitted the legislative and judicial branches of government. On occasion the Bush administration has explicitly rejected the authority of courts and Congress to impose boundaries on the power of the commander in chief, describing the president's war-making powers in legal briefs as 'plenary' -- a term defined as 'full,' 'complete,' and 'absolute.' '
Gellman and Linzer write that Congress in the 1970s passed the Foreign Intelligence Surveillance Act, which expressly made it a crime for government officials 'acting under color of law' to engage in electronic eavesdropping 'other than pursuant to statute.'
But the Bush administration has argued that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."
And Gellman and Linzer write: "Other Bush administration legal arguments have said the 'war on terror' is global and indefinite in scope, effectively removing traditional limits of wartime authority to the times and places of imminent or actual battle.""
- posted by geoff @ #