How should we read a text?

This is a question we need to spend more time on in class. There are multiple theories of interpretation, but an attractive one is "read the words as they are written." Sometimes that reinforces what the statute's drafter intended, sometimes it does not: should drafters' intentions matter? should the words be read broadly and loosely, like Marshall in McCulloch, or should words be given a more strict construction?

Two Supreme Court Cases decided today, February 28, raise this issue. Both involve reading statutes, and in both the Justices look beyond the words to what Congress may have intended.

In SCHEIDLER et al. v. NATIONAL ORGANIZATION FOR WOMEN, INC., et al.,

Held: Physical violence unrelated to robbery or extortion falls outside the Hobbs Act's scope. Congress did not intend to create a freestanding physical violence offense. It did intend to forbid acts or threats of physical violence in furtherance of a plan or purpose to engage in what the Act refers to as robbery or extortion (and related attempts or conspiracies). Pp. 5-11.

(a) The more restrictive reading of the statutory text--the one tying the prohibited violence to robbery or extortion--is correct.

Meanwhile, in TEXACO INC. v. DAGHER et al., the Court

Held: It is not per se illegal under §1 of the Sherman Act for a lawful, economically integrated joint venture to set the prices at which it sells its products. Although §1 prohibits "[e]very contract [or] combination ... in restraint of trade," 15 U. S. C. §1, this Court has not taken a literal approach to that language, recognizing, instead, that Congress intended to outlaw only unreasonable restraints,

The first case, with the narrow reading of the statute, meant that abortion clinic protestors could not be prosecuted under Hobbs Act / RICO. The second case meant that Exxon/ Shell price setting is not, per se, illegal.

Both cases were unanimous.

You can subscribe to receive emails summarizing Supreme Court opinons at Findlaw.com.

Conscience Clause

Here is the article from the Washington Post that makes passing reference to "conscience clauses":

Plan B Battles Embroil States
Proposals Mirror Red-Blue Divide

By Marc Kaufman
Washington Post Staff Writer
Monday, February 27, 2006; Page A01

Filling a void left by the Food and Drug Administration's inability to decide whether to make the "morning-after" pill available without a prescription, nearly every state is or soon will be wrestling with legislation that would expand or restrict access to the drug.
...
"Basically, every state now has an effort going to either make Plan B more easily available or to slow it down or make sure that pharmacists don't have to dispense if they oppose it," said Edward R. Martin, a lawyer and lobbyist with Americans United for Life, who has helped put together some of the proposed "conscience" clauses.

Mock Trial Exhibition

An Email from Professor Jayne (JUS), adviser of Truman Mock Trial:

Colleagues,

The Mock Trial team is doing a demonstration for prospective TSU students and current students who may be interested in competing in mock trial. This Friday, March 3rd, at 6:00 in the Activities Room of the SUB, the team will present the kidnapping trial of State versus Tyler Perry. Audience members will be selected to act as jurors; refreshments will be provided.

Many of your students are interested in law school and may be interested in mock trial. We would appreciate it if you would help us spread the word about this event.

A busy busy Court

In the past week the Supreme Court has taken several actions worth linking to:

Cases decided:
Court sides with church on hallucinogenic tea.

What this upholding of the Religious Freedom Restoration Act means for Oregon v. Smith (1990) is unclear. Smith was a state case, this a federal case: dodes that matter?

Upcoming:

Justices will take up Texas redistricting

By Naftali Bendavid

Chicago Tribune

WASHINGTON — It was among the more audacious political moves in memory: The state of Texas, prodded by Rep. Tom DeLay, redrew its political map in 2003 to send more Republicans to Congress, the first such "mid-decade" redistricting in the modern era.

The maneuver could hardly have been more successful. Six more Republicans were elected in 2004, making the Democrats' attempt to retake the House of Representatives this year all the more difficult. But there were negative consequences, too: DeLay has been indicted, admonished by the House ethics committee, forced to step down as House majority leader and confronted with the prospect of losing his seat.

Now the Supreme Court is preparing to deliver the final word on Texas' action. In a special two-hour session Wednesday, the court will consider whether Texas impermissibly redistricted for purely partisan reasons, and whether it illegally dismantled black and Latino districts. A ruling is expected later this year.

Upcoming: no argument set, as laws are just being created:

1. S.D. Abortion Bill Takes Aim at 'Roe'
Senate Ban Does Not Except Rape, Incest

By Evelyn Nieves
Washington Post Staff Writer
Thursday, February 23, 2006; Page A01

South Dakota lawmakers yesterday approved the nation's most far-reaching ban on abortion, setting the stage for new legal challenges that its supporters say they hope lead to an overturning of Roe v. Wade .

2.Plan B Battles Embroil States
Proposals Mirror Red-Blue Divide

By Marc Kaufman
Washington Post Staff Writer
Monday, February 27, 2006; Page A01

Filling a void left by the Food and Drug Administration's inability to decide whether to make the "morning-after" pill available without a prescription, nearly every state is or soon will be wrestling with legislation that would expand or restrict access to the drug.

...

"Basically, every state now has an effort going to either make Plan B more easily available or to slow it down or make sure that pharmacists don't have to dispense if they oppose it," said Edward R. Martin, a lawyer and lobbyist with Americans United for Life, who has helped put together some of the proposed "conscience" clauses.

Articles from Exam

Now that the makeups have been madeup, I can post links to the articles selected for the exam.

The Federalism case was

Reach of Clean Water Act Is at Issue in 2 Supreme Court Cases This Week

February 20, 2006, Monday
By FELICITY BARRINGER (NYT); National Desk
Late Edition - Final, Section A, Page 8, Column 1, 1309 words

The Times places their content behind subscription service after a week, so to read about the case, we can go the Washington Post

Court Hears Water Act Arguments
Control of Wetlands at Issue in Michigan Case

By Charles Lane
Washington Post Staff Writer
Wednesday, February 22, 2006; A06

All water flows downhill to the sea. But at what point does it enter the federal government's jurisdiction?

That was the question at the Supreme Court yesterday, as the justices heard arguments in the first major environmental case of the Roberts Court era -- a test of the Clean Water Act that could determine the scope of federal authority over the development of wetlands nationwide.

As enacted in 1972, the landmark environmental legislation gave federal regulators the power to control the discharge of pollutants into "navigable waters." On the theory that what gets dumped upstream eventually winds up downstream, the government has interpreted that phrase to include not only large lakes and rivers, but also their smaller tributaries and wetlands near those tributaries.

The Bush administration, backed by environmental organizations and more than 30 state governments, says that any narrower interpretation would cripple the Clean Water Act. States alone could not do the job, the administration argues.

"It's a bit much to ask legislators in Minnesota and Wisconsin to restrict local development to protect water in Mississippi," Solicitor General Paul D. Clement told the court yesterday.

But property owners, backed by homebuilders, developers, farmers, ranchers and some water districts from the arid West, say that view would federalize every drop of water in the country, effectively putting Washington in control of development miles away from any recognizably navigable waters.

Slate's Dahlia Lithwick has more: She notes that there are long lines to see Alito (" It's like he thinks we are all staring at him, which we are."), and she challenges our view of federalism cases as "Feds-versus-States" --

Solicitor General Paul Clement has 40 minutes to defend against all this while Scalia and Roberts take turns punishing him with the hydrological connection stick. Scalia—who last week announced that proponents of a "living constitution" are "idiots," tells Clement that it's both "absurd" and "extravagant" to call a drainage ditch "waters of the United States." Roberts asks whether "one drop of water a year" constitutes a significant nexus to navigable waters. And Scalia invokes "storm drains," "puddles," and "rain water" to imply that all of this controversy involves trivial, ugly, brown water.

Justice Stephen Breyer speaks for the first time at the end of the argument, to ask Clement for empirical evidence that wetlands really do act as a sponge. The new gestalt seems to be to assume that the federal government is trying to gobble up private landowners' and states' rights, even where it seems clear, as here, that the states themselves want it to play that role, and that the consequences to the environment might be disastrous.

The Other Case involved the "Domestic Wiretapping" by the NSA:

Facing Pressure, White House Seeks Approval for Spying
By SHERYL GAY STOLBERG and DAVID E. SANGER
Published: February 20, 2006

After two months of insisting that President Bush did not need court approval to authorize the wiretapping of calls between the United States and suspected terrorists abroad, the administration is trying to resist pressure for judicial review while pushing for retroactive Congressional approval of the program.

The movement seems to have come from Republican members of congress who the White House cannot count on ratifying the program after the fact, as seen in a couple paragraphs in the article:

But some lawmakers have given glimpses of the conversations, including Senator Olympia J. Snowe, Republican of Maine, a member of the intelligence panel who was prepared to vote with Democrats on Thursday to open an inquiry until the White House agreed to negotiate.

Ms. Snowe, who favors some kind of judicial review, characterized the talks as a "fundamental shift" in the debate. "I think there has been a quantum leap," she said in an interview, adding that senators were "really trying to wrestle the best way to craft a measured bill."

The chairman of the Senate Intelligence Committee, Pat Roberts of Kansas, has said he would prefer to see the program brought under the authority of the Foreign Intelligence Surveillance Court. Mr. Roberts also says he is concerned that in an era of fast-paced electronic surveillance, the court may not be able to issue warrants quickly enough to meet the needs of the program.

Snowe of course is a Northeast state Republican, traditionally more moderate. Kansan Roberts has worked to support Bush, but has been excorciated back home in Kansas:

Oversight
EDITORIAL: ROBERTS' CREDIBILITY ON LINE

Many Kansans, including members of The Eagle editorial board, have long admired Sen. Pat Roberts for his plainspokenness and reputation for fair brokering of issues.

So it's troubling that Roberts, chairman of the Senate Intelligence Committee, is fast gaining the reputation in Washington, D.C., as a reliable partisan apologist for the Bush administration on intelligence and security controversies.

We hope that's not true. But Roberts' credibility is on the line.

Pat Roberts, again

In the Post below, I point to the role of Pat Roberts in avoiding congressional oversight of NSA wiretapping, and in seeking to authorize the NSA actions.

This story in the Washington Post sheds more light on his efforts to help the administration:

Senator May Seek Tougher Law on Leaks
Intelligence Chairman Roberts Says Measure Vetoed by Clinton Could Be Model

By Walter Pincus
Washington Post Staff Writer
Friday, February 17, 2006; Page A04

The chairman of the Senate Select Committee on Intelligence said yesterday that he may add language to the fiscal 2007 intelligence authorization bill to criminalize the leaking of a wider range of classified information than is now covered by law. He indicated the new measure would be similar to legislation vetoed by President Bill Clinton more than five years ago.

The statement by Chairman Pat Roberts (R-Kan.) comes as Bush administration is campaigning against leaks and focusing on the people who receive and distribute them, including journalists.

The Justice Department for the first time is prosecuting two people who are not government officials for receiving and distributing classified national defense information told to them by a Pentagon employee

This of course would make it harder for citizens to become aware of government actions. The Pentagon Papers case in 1971 addressed the press's right to publish without prior restraint, but locking up a few people who pass along information will reduce that leaking.

That seems to be the point. From later in the article:

In 2002, with George W. Bush in the White House, Shelby reintroduced his language, but then-Attorney General John D. Ashcroft said that "rigorous investigation" and enforcement of existing laws -- not new legislation -- were the best way to fight leaks.

A lawyer familiar with the AIPAC case said administration officials "want this case as a precedent so they can have it in their arsenal" and added: "This as a weapon that can be turned against the media."

Constitutional Moment?

Last week in class I reported Sen Pat Roberts (R-KS) was interested in defusing the NSA wiretapping: "pass a law to allow it," I claimed he had said. Only I couldn't find an internet link. Embarrassing moments in class, #2,432.

There has been more movement on this front; although Roberts' name does not appear until the fifth paragraph, he is working closely with the White House in this.

Spying Inquiry Blocked by GOP
# The Senate intelligence chair buys time, saying the White House is open to legislation on Bush's surveillance program. Many are doubtful.

By Greg Miller and Maura Reynolds, Times Staff Writers

WASHINGTON — Senate Republicans blocked a proposed investigation of President Bush's domestic spying operation Thursday as the chairman of the Intelligence Committee said he had reached an agreement with the White House to pursue legislation establishing clearer rules for the controversial program.

But Senate aides described the discussions with the White House as very preliminary. And angry Democrats expressed skepticism over the negotiations, with some describing them as a ploy to protect the Bush administration and the highly classified surveillance operation from congressional scrutiny.

And Rep Heather Wilson (R-NM) has indicated a willingness to hold hearings too. Whether the hearings will be about the program, or the need to fix the law will matter for comfort of Bush Administration.

What Do Americans Think?

One dimension of presidential power in the wake of 9/11: what do we think?

According to the poll, Americans appear to be split over the legality of the domestic eavesdropping program. About 49 percent of respondents said the president had definitely or probably broken the law by authorizing the wiretaps and 47 percent said he probably or definitely had not. (Poll results)

This is from a poll reported by CNN.

Interestingly, in the same poll,

About a fifth of Americans think federal agents have listened in on their phone calls, a CNN/USA Today/Gallup Poll released Tuesday suggests.

People Make Constitutional Law

We didn't discusss the case of Korematsu in class, although several 'mates briefed it. The post's title makes a simple point.

Fred Korematsu passed away in March, 2005. He lived long enough to see the case repudiated and to receive the Medal of Freedom. From the Medal of Freedom page:

Korematsu's family, like most Japanese Americans in the Bay Area, was taken first to Tanforan race track in San Mateo County, then shipped out to the secluded Topaz internment camp in Utah. But Korematsu -- who was 22, had a girlfriend, and a job -- didn't want to go.

``I was just living my life, and that's what I wanted to do,'' he said in a 1987 interview.

In jail awaiting his court date, Korematsu's anger began to grow. ``It burned me up. I am an American citizen, and to have the government classify me as an enemy alien is wrong,'' he said.

Korematsu filed a brief on behalf of the detained in the Detention Cases argued in 2004.

Other current readings related to TSP / Class

1.

No Checks, Many Imbalances

By George F. Will
Thursday, February 16, 2006; A27

The next time a president asks Congress to pass something akin to what Congress passed on Sept. 14, 2001 -- the Authorization for Use of Military Force (AUMF) -- the resulting legislation might be longer than Proust's "Remembrance of Things Past." Congress, remembering what is happening today, might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede.

But, then, perhaps no future president will ask for such congressional involvement in the gravest decision government makes -- going to war. Why would future presidents ask, if the present administration successfully asserts its current doctrine? ...This monarchical doctrine emerges from the administration's stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president's inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act, which was written to regulate wartime surveillance.

2. Congressional Oversight?

Justice Dept. Role in Eavesdropping Decision Under Review

By Dan Eggen
Washington Post Staff Writer
Thursday, February 16, 2006; A04

The Justice Department's Office of Professional Responsibility has opened an internal investigation into the department's role in approving the Bush administration's warrantless domestic eavesdropping program, officials said yesterday.

In addition, Attorney General Alberto R. Gonzales signaled in an interview with The Washington Post yesterday that the administration will sharply limit the testimony of former attorney general John D. Ashcroft and former deputy attorney general James B. Comey, both of whom have been asked to appear before the Senate Judiciary Committee regarding the program.

"Clearly, there are privilege issues that have to be considered," Gonzales said. "As a general matter, we would not be disclosing internal deliberations, internal recommendations. That's not something we'd do as a general matter, whether or not you're a current member of the administration or a former member of the administration."

3. Several Classmates briefed Korematsu v. US (1944), although we did not discuss it in class. While its often viewed as a lowpoint for civil liberties in the US, and the dangers of overreaction, that's not universally true:

Terrorist List

Following up a statement in class, here is the source:

325,000 Names on Terrorism List
Rights Groups Say Database May Include Innocent People

By Walter Pincus and Dan Eggen
Washington Post Staff Writers
Wednesday, February 15, 2006; Page A01

The National Counterterrorism Center maintains a central repository of 325,000 names of international terrorism suspects or people who allegedly aid them, a number that has more than quadrupled since the fall of 2003, according to counterterrorism officials.

The list kept by the National Counterterrorism Center (NCTC) -- created in 2004 to be the primary U.S. terrorism intelligence agency -- contains a far greater number of international terrorism suspects and associated names in a single government database than has previously been disclosed. Because the same person may appear under different spellings or aliases, the true number of people is estimated to be more than 200,000, according to NCTC officials.

U.S. citizens make up "only a very, very small fraction" of that number, said an administration official, who spoke on the condition of anonymity because of his agency's policies. "The vast majority are non-U.S. persons and do not live in the U.S.," he added. An NCTC official refused to say how many on the list -- put together from reports supplied by the CIA, the FBI, the National Security Agency (NSA) and other agencies -- are U.S. citizens.

The NSA is a key provider of information for the NCTC database, although officials refused to say how many names on the list are linked to the agency's controversial domestic eavesdropping effort. Under the program, the NSA has conducted wiretaps on an unknown number of U.S. citizens without warrants.

What the Article does not make clear is what is done with these names or lists.

Scalia and the Idiots who Believe in the Living Constitution

This is the article briefly viewed in class on Scalia and The Living Constitution.

The article states,

Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

This might be an interesting perspective to contrast with Yoo's discussion of Presidential Power. As related by Cole, Yoo claims to be grounded in originalism. Is he? Do powers claimed for Mr. Bush flow from the original Constitution, or do they depend on the claim that "everything changed"?

As Cole writes,

The problem for originalists who believe in a strong executive and are cynical about international law is that the framers held precisely the opposite views—they were intensely wary of executive power, and as leaders of a new and vulnerable nation, they were eager to ensure that the mutual obligations they had negotiated with other countries would be honored and enforced. During the last two centuries, of course, executive power has greatly expanded in practice; and the attitude of many US leaders toward international law has grown increasingly disrespectful as the relative strength of the US compared to other nations has increased. But these developments are difficult to square with the doctrine of "original intent," which, at least as expressed by Justice Antonin Scalia and other extreme conservatives, largely disregards the development of the law for the past two centuries. Yoo's task is to reconcile the contemporary uses of American power with his belief in original intent. His views prevailed under the Bush administration, and therefore should be examined not only for their cogency and historical accuracy, but for their consequences for US policy in the "war on terror."

SOP: Congressional Research Service

Roll Call is a Capitol hill Newsmag. Thursday's 2.8.06 edition included a story about conflict within the Congressional Research Service.

From the article:

CRS Senior Specialist Under Fire for Criticizing Agency

Thursday, Feb. 9
By John McArdle, Roll Call Staff

One of the top analysts at the Congressional Research Service said that Director Daniel Mulhollan has ordered him to apologize by close of business Friday for writing a memorandum that criticized Congress' nonpartisan research agency for an "incoherent" policy that advocates neutrality and suppresses the analytical skills of its researchers.
But CRS Senior Specialist Lou Fisher has indicated that an apology will not be forthcoming, and agency officials have not explicity outlined any punishment. Instead, the expert on separation of powers, who has written more than a dozen books on the subject and regularly testifies before Congress, has reached out to lawmakers to highlight what he believes to be growing problems at CRS.
In the past weeks, Fisher has sent letters to some 30 Members and a dozen Congressional committees expressing his concerns with the agency's direction.
"CRS is now in a dumb down mode telling analysts that they must be 'neutral' in what they say and write and must not take 'positions,'" he wrote a letter to one Senator.
"For my first 32 years at CRS I was encouraged to 'speak out' in defense of legislative prerogatives, separation of powers, checks and balances, and constitutional government," Fisher wrote. "For reasons I don't fully understand, the treatment within CRS is now punishment."
Fisher goes on to argue that CRS is in danger of violating its original charter under the Legislative Reorganization Act of 1970, in which Congress formed the agency "to help keep the legislative institution strong and capable of functioning as a coequal branch."
CRS spokeswoman Janine D'Addario confirmed today that Fisher has been asked to apologize to his supervisor for the "intemprent and contemptuous remarks" in his January memorandum, "which he has publicized far and wide."

The effort to muzzle the analysis is whaat I meant in the post below, by asking whether Congress has the personal motives to check the executive branch.

SOP, Checks and Balances

We have been warming up for Separation of Powers, with attention especially to Executive / Congressional relations.

The Washington Post reports that the White House has expanded the group it is briefing on domestic surveillance. (Previously, Presidnet Bush has said, "if its Illegal, why did I brief Congress?" leaving out that he had briefed only 8 members, and not the full committees, and leaving out that they were sworn to secrecy.)

The reason for the change of heart seems to be to forestall greater investigation. The following is lifted from my American Government Blog:

As we discussed, in Federalist 51 Madison argued that in addition to separating powers we need the additional checks and balances:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.

Congress has the necessary means to check the president -- hold hearings, pass legislation -- but its been questionable whether a Republican Congress has the necessary motives. And the Wite House is trying to reduce the motivation of Congress to Check: The conservative Insight Magazine reports how

Congressional sources said Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president. The sources said the blacklist would mean a halt in any White House political or financial support of senators running for re-election in November.

"It's hardball all the way," a senior GOP congressional aide said.

Based on that article we might expect a few House Members to get a call from Rove, too. According to Republican Who Oversees N.S.A. Calls for Wiretap Inquiry in the 2.8.06 New York Times,

[Representative Heather] Wilson, who was a National Security Council aide in the administration of President Bush's father, is the first Republican on either the House's Intelligence Committee or the Senate's to call for a full Congressional investigation into the program, in which the N.S.A. has been eavesdropping without warrants on the international communications of people inside the United States believed to have links with terrorists.

The congresswoman's discomfort with the operation appears to reflect deepening fissures among Republicans over the program's legal basis and political liabilities. Many Republicans have strongly backed President Bush's power to use every tool at his disposal to fight terrorism, but 4 of the 10 Republicans on the Senate Judiciary Committee voiced concerns about the program at a hearing where Attorney General Alberto R. Gonzales testified on Monday.

The article continues:

A growing number of Republicans have called in recent days for Congress to consider amending federal wiretap law to address the constitutional issues raised by the N.S.A. operation.

Now, today's article, White House Agrees to Brief Congress on NSA Surveillance, includes these two lead paragraphs:

Responding to congressional pressure from both parties, the White House agreed yesterday to give lawmakers more information about its domestic surveillance program, although the briefings remain highly classified and limited in scope.

Despite the administration's overture, several prominent Republicans said they will pursue legislation enabling Congress to conduct more aggressive oversight of the National Security Agency's warrantless monitoring of Americans' phone calls and e-mails. Recent disclosure of the four-year-old program has alarmed civil libertarians and divided the GOP, with many Republicans defending the operation and others calling for more information and regulation.

I look forward to your briefs and papers.

Who enforces the Constitution?

We discussed this question a bit in class on 2.2.06.

Stayed tuned to see Congressional efforts to hold accountable the executive. From Today's New York Times, Senate Panel Rebuffed on Documents on U.S. Spying.

The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President Bush's domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and Congressional officials said Wednesday.

The Justice Department is balking at the request so far, administration officials said, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense at length in several public settings.

But the legality of the program is known to have produced serious concerns within the Justice Department in 2004, at a time when one of the legal opinions was drafted.

Legally, Congress could issue a subpoena; politically, whether this Congress will is dubious. And if it did, and was ignored, woould they go to court to enforce it? would the court uphold it? Maybe not under the precedent of the Cheney Energy Taskforce.

Presidential Powers and SOTU II.

A follow up to the previous post regarding presidential powers and the state fo the union. It puzzled me at the time, but then I forgot until this LA Times article:

The president also seemed to ignore Supreme Court precedent when he called for Congress to give him the "line item veto." But Congress did that once, in 1996, and it was used once, by former President Clinton. But in 1998, a federal judge ruled that it was unconstitutional. That was affirmed by a 6-3 decision of the Supreme Court.

Presidential Powers and SOTU

The LA Times has a "fact check" article following up on President Bush's State of the Union claims of authority to surveil. Ever so politely, the headline reads, Bush Stretches to Defend Surveillance.

Here are the essential paragraphs:

Defending the surveillance program as crucial in a time of war, Bush said that "previous presidents have used the same constitutional authority" that he did. "And," he added, "federal courts have approved the use of that authority."

Bush did not name names, but was apparently reiterating the argument offered earlier this month by Atty. Gen. Alberto R. Gonzales, who invoked Presidents Lincoln, Wilson and Franklin D. Roosevelt for their use of executive authority.

However, warrantless surveillance within the United States for national security purposes was struck down by the U.S. Supreme Court in 1972 — long after Lincoln, Wilson and Roosevelt stopped issuing orders. That led to the 1978 passage of the Foreign Intelligence Surveillance Act that Bush essentially bypassed in authorizing the program after the Sept. 11 attacks.

Since the surveillance law was enacted, establishing secret courts to approve surveillance, "the Supreme Court has not touched this issue in the area of national security," said William Banks, a national security expert at Syracuse Law School.

"He might be speaking in the broadest possible sense about the president exercising his authority as commander-in-chief to conduct a war, which of course federal courts have upheld since the beginning of the nation," Banks said. "If he was talking more particularly about the use of warrantless surveillance, then he is wrong."

More People behind the scenes...

Republicans Were Masters In the Race to Paint Alito
Democrats' Portrayal Failed to Sway the Public

By Lois Romano and Juliet Eilperin
Washington Post Staff Writers
Thursday, February 2, 2006; A01
This article is a bit narrower than the NY Times article discussed in the previous post, but it also covers the political strategy in confirming Alito.