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To the editor: The president is not a king. Yet John Schmidt’s frightening theory of inherent presidential power to gather foreign intelligence in defiance of the Foreign Intelligence Surveillance Act (FISA) is reminiscent of King James II. Schmidt insists that Congress is impotent to restrict the president’s authority to conduct surveillance under a foreign-intelligence banner. The nation experimented with such unchecked executive power from President Franklin Roosevelt through President Richard Nixon. The chilling results included two decades of illegal mail openings, two decades of illegal interceptions of international telegraphs, seven years of the misuse of the National Security Agency for nonforeign intelligence purposes, spying on political dissidents, and related intelligence-agency abuses, as revealed by the Church Committee. Article I, Section 8, clause 18 — the necessary and proper clause — authorizes Congress to regulate authorities entrusted by the Constitution to any branch of government or officer. FISA regulates a tiny crumb of the president’s authority to gather foreign intelligence, i.e., spying on American citizens suspected of complicity in terrorism on American soil. Probably more than 99 percent of foreign intelligence is collected unconstrained by FISA or the Fourth Amendment because the targets are international terrorists or their sympathizers abroad. Moreover, FISA authorizes spying on American citizens when probable cause to believe the target is implicated in terrorism is shown to a neutral magistrate. Since the enactment of FISA, 20,000 foreign intelligence warrants have been granted and a handful denied. On July 31, 2005, President Bush’s Justice Department informed the Senate Intelligence Committee that FISA was nimble, flexible, and needed no amendment to interdict terrorist plots before they hatched. James Madison explained in Federalist No. 48 that Congress unconstitutionally encroaches on the chief executive only when it exerts an “overruling influence” over an executive power. In sum, if FISA is not a necessary and proper law to prevent foreign-intelligence lawlessness, then no law can satisfy that standard. Checks and balances would be a hoax. Schmidt hypothesizes a superemergency where the president would need to begin intercepting calls to gather foreign intelligence before involving the attorney general as prescribed by FISA. The proper response is to emulate President Abraham Lincoln during the Civil War. Lincoln unconstitutionally suspended the writ of habeas corpus without congressional approval after Fort Sumter, but then he swiftly brought the matter before Congress, which retroactively approved what the president had done. That is the way a president should handle Schmidt’s hypothetical consistent with the rule of law. Schmidt paradoxically applauds the Specter bill. But Schmidt’s theory of presidential foreign-intelligence supremacy over Congress would make the legislation meaningless. The president could ignore the law and rely on his inherent constitutional power. Bruce Fein Lichfield Group Washington, D.C.

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