FISA and Executive Authority

Kind of interesting: while critics have suggested the President has ignored the law and overstepped the boundaries of the FISA court in conducting certain warrantless searches of communications to and from Al Qaeda members overseas, it was the FISA Court itself in a 2001 sealed decision that acknowled the presiden’ts constitutional authority to conduct such warrantless searches:

The

Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was
incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. 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.

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