"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.

Notwithstanding the fact that Congress retains the power of the purse, which is potentially the most powerful right of any branch of government, and which is graciously acknowledged by Mr. Turner, there is little reason otherwise to quibble with this statement by the Supreme Court, which recognizes that the President is granted the power under the Constitution to direct foreign affairs, and much of this power is not clearly outlined in the Constitution. However, the Supreme Court added another statement later in this same decision expressing that, although not all of the President's powers are granted specifically from the Constitution, the President's power in foreign affairs is subjugated to the Constitution:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations--a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

"make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested b this Constitution in the government of the United States, or in any department or officer thereof."

Although I may not be qualified to disagree with some of the statements made in the case of UNITED STATES v. CURTISS-WRIGHT EXPORT CORP. about the extent of the President's implied powers, it seems that it was ill-advised for the Supreme Court to give such great weight to powers that it was so incapable of defining, and it seems that the Supreme Court was guilty in this case of violating the cardinal sin of issuing an opinion that was more broad in scope than was necessary based on the facts.

Defenders of the Terrorist Surveillance Program have never argued that it was the only way to obtain necessary foreign intelligence, but rather the argument has been that FISA is too cumbersome for the task at hand. If the telecommunication providers that assisted with the Terrorist Surveillance Program instead had refused to co-operate because the requests from the Government were not accompanied by FISA warrants, and if the President had seized operation of these telecommunication providers because litigation would have been too cumbersome in relation to the surveillance needs, the President soon would have found himself being slapped upside the head in Federal Court by these telecommunication providers. In the case of YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, the Supreme Court ruled that the President had acted illegally and contrary to the Constitution, and the majority opinion in this case was that the President had acted contrary to the provisions that were afforded to him in the Taft-Hartley Act. Through the FISA legislation, Congress has furnished the President with a legal means to acquire foreign intelligence via surveillance, and the President does not have the authority to engage in surveillance outside of the FISA law to the extent that such surveillance violates the Fourth Amendment rights of U.S. citizens and other legal residents. Although the President has supremacy with respect to foreign policy, the President has no inherent authority to take actions which are contrary to the Constitution just because a state of war exists. From a practical standpoint, the Constitution is whatever the Supreme Court says it is, but an assertion by the President that he is entitled to engage in massive electronic surveillance without warrants and without probable cause, involving citizens and other legal residents of the United States, is contrary to the plain meaning of the Fourth Amendment to the Constitution even if FISA is rewritten to authorize such surveillance and even if the Supreme Court were to uphold such a revision of FISA.

Critics of the President's Terrorist Surveillance Program should not hesitate to admit to some trepidation about the prospect of the Supreme Court ruling on this issue because the majority on the current Court is too deferential to the security needs of the Government and is much less concerned with the Fourth Amendment rights of U.S. citizens and other legal residents. It is not characteristic of the Bush Administration to take any action which is or could be detrimental to the business interests that hold our Government captive, but if the President's assertion of his alleged inherent powers were in conflict with the business interests that pull the President's strings, it is likely that few of the President's current supporters would acknowledge that the President has the inherent authority as Commander-in-Chief to take such action, and it is doubtful that such action would be viewed favorably by any Federal Courts. Law Professor Robert Turner dismisses the case of YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER as not being relevant to the issues in the FISA debate because this case "involved a taking of private property within the United States without due process of law--a clear violation of the Fifth Amendment." Therefore, Mr. Turner clearly thinks that the Government's need to acquire foreign intelligence supersedes the Fourth Amendment rights of U.S. citizens within the U.S., but Mr. Turner also thinks that the Government's need to sustain a military action in Korea should not have encroached on the Fifth Amendment property rights of business owners. Mr. Turner also refers to examples of situations in which other Presidents (including Woodrow Wilson and Franklin Roosevelt) engaged in surveillance without warrants during wartime, but this is the classic "ten wrongs make a right" argument. Whenever someone supports his/her argument by claiming that President Clinton did it too, it signals that the argument is probably without much foundation in logic.

Patrick Henry once thundered: "Give me liberty or give me death." It would appear that few of our current political leaders share such courage. The threat of terrorism is not insignificant, but the threat of terrorism is relatively insignificant in comparison to other causes of death that we take for granted. If the real issue is saving lives, there are other threats for which the need for preventive action is urgent, but most Americans accept these other threats to life as routine. Academic studies require some skeptical analysis, but a study by The Urban Institute estimates that, during the period from 2000 through 2006, approximately 137,000 people died prematurely due to lack of health insurance. Moral confusion exists when people think that protecting lives from terrorists is more important than protecting people from premature death due to a lack of health insurance. Most Americans would not be willing to accept a ban on alcohol or a ban on guns (and I do not advocate that either), but if the U.S. were to spend as much money on eradication of guns and alcohol as it does on combating terrorism, it would save many thousands of lives every year. The two most deadly drugs (tobacco and alcohol) are legal, and a return to Prohibition would not be wise, but it is relevant to observe that most Americans casually accept the fact that hundreds of thousands of U.S. citizens die every year due to various circumstances which could be prevented. You are more likely to be killed by a drunk driver than by a foreign terrorist who succeeded because of constitutional limitations imposed by FISA. A universal healthcare system would save more lives than unfettered government surveillance.

Judging from the fickle moods of the public, and conceding that most members of Congress would rather follow than lead, it is likely that the final version of FISA will allow for an expansion of the government's ability to engage in surveillance of Americans without probable cause. At a minimum, Congress should provide for substantive oversight by the FISC of any government surveillance, and Congress should provide for substantive oversight by Congress of any government surveillance. Oversight by the FISC should consist of oversight of the actual surveillance and not merely the oversight of the government's procedures. Congressional oversight should include the right of all members of Congress to access classified information in a secure setting with procedures to safeguard the security of any classified information. This would also give Congress a basis to determine whether the protected information is being classified to protect our national security or to protect government officials from embarrassment. Congress should also exercise oversight to maintain the integrity of the Inspectors General who monitor Federal agencies.

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