"The powers not delegated to the United States by the Constitution, nor prohibited to it by the states, are reserved to the states respectively, or to the people."
Although the Ninth and Tenth Amendments to the Constitution indirectly have been rendered virtually meaningless by various Supreme Court decisions, these amendments are still in effect. It should be understood that some of the original critics of the Bill of Rights, including some advocates (such as Alexander Hamilton) for ratification of the original Constitution, opposed the Bill of Rights because they feared that these amendments to the Constitution would be interpreted as a limitation on the inalienable rights of the people, but wiser politicians and statesmen recognized the value of adding an enumeration of the most important aspects of the most important rights that they were endeavoring to protect within the framework of their new Constitution. The Constitution recognizes certain inalienable rights of the people, but contrary to what some people may theorize, the Constitution does not presuppose the inalienable rights of the Executive. Any inherent authority that without doubt is possessed by the Executive is limited by the powers granted to the other two branches of the Federal Government, and any inherent authority possessed by the Executive is circumscribed by the rights of the people that are specifically delineated in the Constitution.
Much of Mr. Turner's rationale is based on the alleged inability of those in Congress to keep secrets and the understandable reluctance of foreign officials to surrender information that might not be kept secret. However, within my own adulthood, there is ample evidence of situations (such as the invasion of Cambodia by President Nixon, the Iran-Contra scandal that included funding of foreign terrorists by President Reagan, and the invasion of Iraq by President Bush the Younger) in which the President deliberately misled Congress with respect to foreign policy initiatives that were both illegal and detrimental to the interests of the United States. Secrecy is often necessary in the conduct of foreign affairs, but secrecy is not legitimate as a shield to protect the illegal activity of our own government, and secrecy is not legitimate as a shield for dishonesty by our own government directed against our own country. The President's prerogative was amplified most boldly by former President Richard Nixon (who stated in 1977 in response to a question from David Frost): "Well, when the president does it that means that it is not illegal."
As Senator Sheldon Whitehouse (D-Rhode Island) revealed on December 7, 2007, based on his examination of opinions issued by the Office of Legal Counsel for President Bush, the current Chief Executive thinks:
"The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II."
Although President Nixon had been forced to resign in 1974 because neither Congress nor the Supreme Court accepted his theory of Executive power, the current Congress has been too timid to pursue rigorous investigation of the Bush Administration's disregard for the rule of law. President Bush thinks he really is the DECIDER, but at the point at which the President's alleged inherent authority begins to encroach on the constitutional rights of the people and/or the constitutional powers granted to the other two branches of our Federal government, all of this babbling about the President's inherent authority to act outside of the language in the Constitution is nonsense.
In the decision issued by the Foreign Intelligence Surveillance (FIS) Court of Review on November 18, 2002, the President's alleged inherent right to conduct warrantless searches to obtain foreign intelligence was addressed indirectly and was prefaced by this statement of legal considerations:
The origin of what the government refers to as the false dichotomy between foreign intelligence information that is evidence of foreign intelligence crimes and that which is not appears to have been a Fourth Circuit case decided in 1980. United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980). That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power. In approving the district court’s exclusion of evidence obtained through a warrantless surveillance subsequent to the point in time when the government’s investigation became “primarily” driven by law enforcement objectives, the court held that the Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons.” Id at 915.
Targets must “receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution.” Id. at 916. Although the Truong court acknowledged that “almost all foreign intelligence investigations are in part criminal” ones, it rejected the government’s assertion that “if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.” Id. at 915.
Law Professor Robert Turner was one of many who seized on statement made by the FIS Court of Review later in this same determination:
It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. 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.
However, before we get carried away by this language, it should be recognized that this language was entirely gratuitous with respect to the FIS Court of Review's actual determination, which was that FISA is constitutional because the surveillance FISA authorizes is reasonable. In effect, the FIS Court of Review takes it for granted that the President has the inherent authority to engage in some activity under conditions that are not specified and for which the limits have not been established by either the Supreme Court or the FIS Court of Review.
While discussing the constitutionality of searches and seizures that occur without probable cause, the FIS Court of Review made specific reference to several cases in which the Supreme Court has tried to balance the rights protected by the Fourth Amendment with the government's so-called "special needs":
The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court’s approval of entirely warrantless and even suspicionless searches that are designed to serve the government’s “special needs, beyond the normal need for law enforcement.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted)) (random drug-testing of student athletes).32 Apprehending drunk drivers and securing the border constitute such unique interests beyond ordinary, general law enforcement. Id. at 654 (citing Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Martinez- Fuerte, 428 U.S. 543 (1976)).
A recent case, City of Indianapolis v. Edmond, 531 U.S. 32 (2000), is relied on by both the government and amici. In that case, the Court held that a highway check point designed to catch drug dealers did not fit within its special needs exception because the government’s “primary purpose” was merely “to uncover evidence of ordinary criminal wrongdoing.” Id. at 41-42. The Court rejected the government’s argument that the “severe and intractable nature of the drug problem” was sufficient justification for such a dragnet seizure lacking any individualized suspicion. Id. at 42. Amici particularly rely on the Court’s statement that “the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” Id.
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