My friend Bill Otis, a government prosecutor for many years, finds support for the view that Congress cannot limit the president’s power to conduct warrantless surveillance of enemy phone calls in time of war in the Supreme Court’s Dickerson v. United States decision:
I’ve been following with considerable interest the debate about whether Congress, through FISA, could limit what the pre-FISA judicial consensus endorsed, namely, the view that Article II confers on the President authority to conduct warrantless electronic surveillance in time of war when, in the President’s judgment, such surveillance is useful to protect the nation’s safety.
The central question is whether Congress, by statute, can limit what the Constitution itself provides. I found out the answer to that question in a case I litigated shortly before I left the United States Attorney’s Office. The name of the case was Dickerson v. United States. The specific question there was whether Congress, by enacting 18 USC 3501 in 1968, could modify the Supreme Court’s holding two years earlier in Miranda that a suspect must be given his “warnings” before any subsequent statement he makes is admissible in court. Section 3501 purported to establish a rule that, contrary to Miranda, such a statement could be admitted if, when considering all the circumstances of the interrogation (including whether warnings were given), the suspect spoke voluntarily.
The Fourth Circuit held that Section 3501 was valid, because Miranda had adopted only a “prophylactic” rule in aid of the Fifth Amendment’s privilege against self-incrimination — but that Miranda’s regimen was not a component of the Fifth Amendment itself.
The Supreme Court reversed in a 7-2 vote, with only Scalia and Thomas dissenting. The Court held that Miranda was “constitutionally rooted,” and on that account could not be modified by statute.
The Left was of course quite pleased with this result (which the Clinton Administration supported, causing my resignation from the US Attorney’s Office). But it seems much less thrilled with the notion that the President’s Article II powers — which are not merely “constitutionally rooted” but established by the text of the Constitution — effectively nullify any attempted limitation by Congress, whether in FISA or elsewhere.
Thus, in my view, it makes no difference what the exact provisions of FISA are in this area, because any of its language that even arguably limits the President’s Article II authority is, under the rationale of Dickerson, invalid.