Supreme Court Challenges Presidential Power, Now Congress Should Act
The Supreme Court ruled today that the military tribunals established by President Bush to try detainees at Guantánamo Bay are illegal under U.S. law and under the Geneva Conventions. In a sharp rebuke to the sweeping seizures of power by this administration, Justice Anthony M. Kennedy wrote, "Trial by military commission raises separation-of-powers concerns of the highest order.... Concentration of power [in the executive] puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid."
The Court has spoken. Now Congress needs to act to help restore the checks and balances designed into the U.S. system of government by the framers of the Constitution. Nearly every week the press offers new findings about a sweeping system of government spying programs established and operated without review by any court and hidden from most members of Congress. Here’s what we know so far:
- The National Security Agency (NSA) is collecting the records of every phone number dialed by nearly 200 million people in this country over the last five years;
- The Treasury Department has tapped into the vast database maintained by a Brussels-based clearinghouse for financial transactions to gather information on tens of thousands of people without a court warrant or judicial review; and
- The NSA is reportedly developing tools to spy on the 80 million people who use online networking communities such as MySpace and Facebook.
These surveillance programs are not focused narrowly on suspect individuals but are broad data-gathering operations that collect information on hundreds of millions of people without court review or congressional oversight. FCNL is particularly concerned that Sen. Arlen Specter has proposed dangerous new legislation (S. 2453) that would permit the National Security Agency to continue its spying program without court review for as long as the president deems it necessary. Rather than rubber-stamping the president’s program with new legislation, Congress should investigate these programs and insist that the president follow existing law which requires the NSA to seek warrants through the FISA court.
Take Action: Independence Day Recess
Write a letter to the editor of your local newspaper applauding the Supreme Court decision on military commissions and expressing concern about the president’s domestic spying program. In the letter, urge your senators to investigate this program and not to rubber stamp the president’s illegal domestic spying. Many newspapers will print stories about the Supreme Court decision and have been printing stories about government spying in the past few weeks. Your letter will have a greater chance of being published if you refer to these stories. See more tips on writing letters to the editor.
If you’ve got more time, write or call your senators local office today to request a meeting while your elected officials are back in your state to discuss president’s domestic spying program. You can find contact information for your senators local offices on our website. Or attend a public meeting where one of your senators is going to speak and ask a question about the domestic spying program.
Background
On the Supreme Court decision:
Read more about the military commission at Guantánamo Bay.
On Domestic Spying:
In December 2005, the president acknowledged that he had authorized a secret domestic spying program that tracks overseas telephone calls of U.S. persons, without warrants. News sources have now revealed that the program is much broader than the president's original description. It has collected the records of every phone number dialed over the last five years by an estimated 200 million people in this country. This program, which operates completely without court review, violates the Foreign Intelligence Surveillance Act (FISA).
Sen. Specter's bill, S. 2453, would give the president amnesty for his past actions by adding a new legal basis for spying on U.S. persons: the"presidents inherent authority."
The president has asserted that, as Commander in Chief of the armed forces, he has "inherent authority" to override the clear requirements of FISA. But that assertion is not widely supported by constitutional scholars and has been challenged by members of Congress from both major political parties. Read more on government spying.
The FISA statute makes it clear that the president currently does not have authority to spy on people in the U.S. without a warrant. Congress has spoken on that issue and has required that all domestic spying be authorized by a warrant, either from regular courts or from the FISA court. Minor delays and exceptions were described in the FISA statute for times of war or other emergency situations. Outside of those provisions, the president has no authority to violate the Fourth Amendment. The legislation sponsored by Sen. Specter would give the president that authority, for the first time in U.S. history.
Order copies of the FCNL “Bill of Rights” Bookmark.
For more information on the FISA courts and presidential authority see the June issue of FCNL's Washington Newsletter "Democracy in the Balance."
See some of FCNL's other resources.
Contacting Legislators
Contact your members of Congress through FCNL's web site.
Capitol Switchboard: 202-224-3121
Sen. ________
U.S. Senate
Washington, DC 20510
Rep. ________
U.S. House of Representatives
Washington, DC 20515
Contacting the Administration
Contact the President through FCNL's web site.
White House Comment Desk:
202 456-1111
Fax: 202-456-2461
White House web site
President George W. Bush
The White House
Washington, DC 20500
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