Alberto Gonzales on Civil Rights
GONZALES: There is no express grant of habeas in the Constitution. There is a prohibition against taking it away.
SPECTER: Now, wait a minute. The Constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?
Senator Specter was referring to Article One of the Constitution which reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” This passage has been historically interpreted to mean that the right of habeas corpus is inherently established.
We do not have to decide whether, when we are at war & there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches the President’s constitutional powers. We can avoid that tough question because Congress gave the President the Force Resolution [in 2001], & that statute removes any possible tension between FISA and the President’s authority.
FISA allows the President to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime. The legislative history of this provision makes it clear that Congress elected NOT TO DECIDE how surveillance might need to be conducted in a particular armed conflict.
The terrorist surveillance program is subject to the checks of the Fourth Amendment, and it clearly fits within this “special needs” category. The key question, then, under the 4th Amendment is not whether there was a warrant, but whether the search was reasonable. This requires balancing privacy with the government’s interests--and ensuring that we maintain appropriate safeguards. We’ve done that here.
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