In response to this stated letter by Assitant Attoreney, renowned legal scholars and ex-government officials forwarded their plea in the form of a leeter to Chairs and Ranking members of House and Senate. The letter encompasses all the legal issues regarding NSA authority for warrantless surveillence and concludes that justification provided by Assitant Attorney is not a plausible legal defense but a fabricated justification to cover up the legal loopholes of the presidential order.
The letter further discussed the sufficiency issue of FISA to tackle the speedy processes in detail and hold the view that “if the Administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law.
But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable. ”(ON NSA SPYING: A LETTER TO CONGRESS. 2006) The illegality of the executive order was further reinforced by the court decision in ACLU vs NSA case. The U. S. District Court Judge OF Eastern District of Michigen ruled that wiretapping without warrant from FISA is an unlawful and unconstitutional activity as it is the violation of individual privacy rights and freedom.
The judge further ordered to eavesdrop on phone calls with immediate effect. In her ruling she wrote: "The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well. " (ACLU v. NSA. 2006 p. 33) Bush administration is of the view that President derives its power from Constitution.
Constitution of United States of America installs President of America as the supreme commander of American forces and a caretaker of the laws. Article II of the constitution state that American president is "Commander in Chief of the Army and Navy of the United States," and he "shall take Care that the Laws be faithfully executed". The law will be legislated by Congress. The proper check and balance system and distribution of powers among Presidency, Legislature and Judiciary limit the executive powers of presidency.
Although judiciary accepts the presidential to conduct domestic electronic surveillance inside the constraints of the Fourth Amendment and the jurisdiction of Foreign Intelligence Surveillance Act but no decision or ruling has prompted Congress to disable itself from endeavoring hinder the way of unconstitutional use of that powers. Even Supreme Court has ruled that Congress possess inherent powers to regulate and supervise domestic surveillance.