FISA and the Power of the President

Democrats claim that an act of congress can trump a president's power to conduct warrantless searches. If the president has the power to conduct warrantless searches, no congressional resolution, even if signed by the president and a part of the law, restricts his ability since the constitution trumps congress. Only a specific ammendment to the constitution does this. If the president is precluded from such searches by the 4th ammendment, no act of congress can change this either.

What are the facts?
1. http://www.fas.org/irp/congress/1990_cr/h900912-search.htm
This discussion in the house shows that searches have been common and warrantless for decades, that they have been reviewed by lower courts, and have been found to be constitutional.
Here is the pertinent passage:
"I believe it would surprise most Americans, including many Members of Congress, that such searches, including the surreptitious entry of the homes of American citizens, occur with some regularity--without a court order of any kind and without statutory authorization. Rather, these intrusive searches are approved on a case-by-case basis by the Attorney General pursuant to a Presidential authorization contained in Executive Order 12333, issued by President Reagan in 1981. The Executive order authorization is based on a claim by the executive branch that there is a national security exception to the fourth amendment. A U.S. court of appeals and a U.S. district court have held such searches to be within the President's constitutional powers, but there has been no Supreme Court decision on the issue."
2. http://www.fas.org/irp/crs/RL30465.pdf
This report to congress in 2004 shows that congress was informed that this and prior presidents had used warrantless searches "in the context of foreign intelligence gathering." Note that the information so gathered cannot be used in criminal investigations.

Court of appeals decisions following Keith met more squarely the issue of warrantless electronic surveillance in the context of foreign intelligence gathering. In United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 960 (1974), the Fifth Circuit upheld the legality of a warrantless wiretap authorized by the Attorney General for foreign intelligence purposes where the conversation of Brown, an American citizen, was incidentally overheard. The Third Circuit in United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), cert. denied sub nom, Ivanov v. United States, 419 U.S. 881 (1974), concluded that warrantless electronic surveillance was lawful, violating neither Section 605 of the Communications Act nor the Fourth Amendment, if its primary purpose was to gather foreign intelligence information. In its plurality decision in Zweibon v. Mitchell, 516 F.2d 594, 613-14 (D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976), the District of Columbia Circuit took a somewhat different view in a case involving a warrantless wiretap of a domestic organization that was not an agent of a foreign power or working in collaboration with a foreign power. Finding that a warrant was required in such circumstances, the plurality also noted that “an analysis of the policies implicated by foreign security surveillance indicates that, absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional.”
3. http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html
This is the crucial document. The court confirms that the president has the power to do warrantless searches, and that this power cannot be restricted by congress.
The first "active" paragraph shows the president had the power before FISA ever was passed by congress. Here it is:
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.

The second "active" paragraph shows that FISA, and indeed any other congressional measure, cannot limit the presidents constitutional powers:

"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."

4. http://powerlineblog.com/archives/012624.php
This powerline article is a discussion between Erich LichtBau of the NY Times and Powerline, it illustrates the NY Times abuse of its position and its placing hearsay and misleading comments on a par with Court Decisions.