CS: Yes. That's clearly right. What that Court says is that for domestic surveillance that don't involve foreigners or foreign threats, the president needs a warrant. But now we're onto the last question, which is whether there's a Fourth Amendment requirement of a warrant. And the Supreme Court has never said that in circumstances like this. The lower court seemed to suggest otherwise.And don't forget to read James Lilek's hilarious interview: "Hi, Hugh. And it's another grim Christmas in Hitler McNixon's America, isn't it?"
HH: That's why I wanted to come back and do your middle one in the middle, because now we've got the Constitutional issues out on the table. There are some arguments the other way. I want to be fair to people who are arguing, because they haven't been really fair to the president's position. You could make arguments the other way. But by no means does the...in my opinion, do they have remotely as strong a case as the advocates for the Constitutionality of what the president has done. Do you agree with that assessment, Professor?
CS: Well, what I'd say is that the Department of Justice is the president's lawyer, and they have a duty, the lawyers there, to protect the president's Constitutional prerogatives. I actually worked there myself around the same time that Chief Justice Roberts was in the Justice Department, and that's the Department of Justice's job to protect Constitutional prerogatives of the president. But in this case, it's not as if the Department of Justice is stretching badly to protect the president. It's not as in the what I think is the unfortunate torture memo, where the Justice Department really was stretching. Here the Department of Justice is making more than plausible arguments. If you put me to it, is the president right on this? It's very complicated. I think he has...he probably has the better argument. As you say, there are complexities.
Tuesday, December 27, 2005
Questions about the legality of the wiretapping, etc., that NSA has been doing?
Over at Radioblogger, read that transcript of Hugh Hewitt's interview with Cass Sunstein, University of Chicago's Constitutional Law professor, and a liberal one, to boot. Money quote: