When President John Adams proposed the 1798 Alien and Sedition Acts, enabling him to punish critics of his administration, it is unlikely he predicted the lasting impact his actions might have on future American executive branches.
Some argue that his policy of squelching dissent have since been mimicked by such politicians as Abraham Lincoln, A. Mitchell Palmer, Lyndon Johnson, Dwight Eisenhower and, most recently, President George W. Bush.
Prof. Elizabeth Sanders, government, Prof. Steve Clymer, law, and Prof. Trevor Morrison, law, spoke on national security and the degree to which they believe the current administration is infringing upon civilians’ privacy rights in a panel discussion yesterday on executive power in the War on Terror.
Clymer began the discussion by addressing the National Security Agency’s program of wiretapping American terrorism suspects without a warrant. He noted the 1967 Supreme Court case Katz v. United States as one of the first instances such privacy issues were raised. Katz was a gambler the FBI sought to prosecute using incriminating information it had obtained listening into one of his telephone discussions.
Clymer identified the fourth amendment to the Constitution – “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures” – as proof that the government had no right to tap Katz’s private phone calls.
Clymer, however, acknowledged the opposing implications of Title III of the U.S. Code, chapter 119, on Wire and Electronic Communications Interception and Interception Of Oral Communications.
“According to Title III,” he said, “there is no way to prevent the president from using wiretapping for national security purposes.”
Another important measure Clymer underscored was the Foreign Intelligence Surveillance Act of 1978. FISA “prescribes procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power.” FISA requires a court order to tap into wireless communication overseas.
Clymer also noted the open-ended nature of the Authorization for Use of Military Force Bill passed September 18, 2001, stating that “the president could use all necessary force.”
“The president is the commander in chief of the army and navy, not of the country,” added Morrison, who agreed with many of Clymer’s points. He spoke about the Cannon of Constitutional Avoidance, which warns against unconstitutional readings of policy.
He noted that in the absence of FISA and other laws that check presidential power, the president would have the authority to exercise his will in wiretapping in the name of the national authority.
Sanders spoke last, broadening the topic of discussion to include the roles of the president in national politics.
“War is empowering for presidents,” she said. She noted her own skepticism of presidents’ true motivations for declaring war and said that “they get us into wars, and use powers to prevent themselves from being criticized.”
She claimed that presidents have the power to “mislead and misrepresent international situations.” Sanders said she feels that too much power is left to the executive branch in deciding U.S. military tactics and that too many motives behind these tactics are based on self-interest.
The panel discussion was co-sponsored by the Cornell American Constitution Society and the SAFC.
Archived article by