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."