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for the purpose of gathering foreign intelligence. [Citations
omitted.]
The decisions of the U.S. Courts of Appeals for the Third Circuit
in United States v. Butenko, 494 F.2d 593 (8rd Cir. 1974) (en banc),
cert. denied sub nom. Ivanov v. United States, 419 U.S. 881 (1974),
and for the Ninth Circuit in United States v. Buck, 548 F.2d 871
(9th Cir. 1977), cert. denied 434 U.S. 890 (1977), are in agreement
with the Humphrey and Truong and Brown decisions quoted above.
In these cases, the United States Courts of Appeals for the Third,
Fourth, Fifth, and Ninth Circuits have all concluded that Article II
of the Constitution authorizes the President of the United States to
engage in foreign intelligence electronic surveillances of foreign
powers and agents of foreign powers within the United States, and
that the Fourth Amendment does not require the President to
obtain a judicial warrant for such surveillances. It is thus eminently clear in the law that the Constitution does not mandate the Foreign Intelligence Surveillance Act, or any similar legislation by
which the President would be required to obtain the approval of a
court to surveil a foreign power or an agent of a foreign power
within the United States.
CONCLUSION
Although the courts have repeatedly made clear that the Constitution authorizes the President to undertake foreign intelligence
electronic surveillance consistent with the Fourth Amendment
without prior judicial approval, the Congress commanded judicial
activism in foreign intelligence electronic surveillance when it
adopted the Foreign Intelligence Surveillance Act of 1978. In the
FISA, the Congress mandated that the Executive Branch obtain
the approval of a judge to engage in foreign
intelligence electronic
surveillance within the United States of foreign powers and their
agents. The Congress required such prior judicial approval despite
judges’ lack of training in intelligence, diplomatic and military
matters; despite the unsuitability of the judicial process for making
delicate national security judgments; and despite the great need for
speed and absolute secrecy in foreign intelligence electronic surveillance.
The Constitution places upon the President of the United States
the duty to protect this Nation from threats from abroad. The
United States currently faces an acute threat to its national security from espionage by hostile foreign nations and from the violence
of international terrorists. To counter these
growing threats to the
security of the Nation,
the President
should be
able, consistently
with the Constitution, to bring effectively to bear against agents of
hostile foreign powers the full counterintelligence and counterterrorism capabilities of the federal government. Foreign intelligence
electronic surveillance of these agents of foreign powers is a critical
element of these capabilities.
The Congress should, therefore, repeal the Foreign Intelligence
Surveillance Act, restoring to the President the full power the Constitution grants him to authorize, without a judge’s prior approval,
electronic surveillance within the United States of foreign powers
and their agents for foreign intelligence purposes. Repeal of the
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