The Associated Press reported today that Russ Feingold has invited John Dean, former White House counsel who was imprisoned and disbarred following Watergate (great witness!), to testify at a Senate Judiciary Committee hearing in favor of censuring President Bush for using electronic surveillance of international communications to catch terrorists:
Dean, a one-time White House counsel under President Nixon, testified before the Senate committee investigating the events that eventually led to Nixon’s impeachment.
He recently wrote a column comparing Bush’s conduct to Nixon’s, saying both authorized warrantless wiretapping and broke the law.
That’s Dean’s opinion, and I suppose he’s entitled to it. But when the U.S. Supreme Court ruled that Nixon’s surveillance in internal security cases was illegal in United States v. United States District Court, 407 U.S. 297 (1972), it specifically distinguished between the case before it and surviellance involving foreign intelligence. The Court said that its holding did not apply to surveillance for purposes of foreign intelligence gathering, as is involved in the NSA program:
[T]he instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.
We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.
With all due respect to Mr. Dean, I don’t think the President was required to consult him before acting to protect the American people from terrorists. I think the President was entitled to rely on the six federal appellate court opinions that have held that the President has the constitutional authority to carry out warrantless electronic surveillance for foreign intelligence gathering purposes.