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Mukasey says Constitution no bar to warrantless surveillance of terror suspects

[JURIST] US Attorney General nominee Michael Mukasey [WH profile] told the Senate Judiciary Committee [official website] in a letter [PDF text] released Friday that the Constitution does not preclude the president from wiretapping terrorism suspects without a warrant. His comments came in response to an earlier letter [PDF text; press release] in which committee chairman Patrick Leahy (D-VT) [official website] asked Mukasey to clarify his position on the scope of executive power, given Mukasey's statements in testimony that the Constitution and other laws did prohibit the president from authorizing torture. In his letter Mukasey wrote:

Warrantless surveillance for the collection of foreign intelligence requires a different analysis. As an initial matter, it is widely accepted that the Constitution does not require that all searches be conducted pursuant to a warrant. The Supreme Court and lower federal courts have upheld warrantless searches in numerous settings. Searches incident to arrest, border searches, and vehicle searches, to name a few examples, may be conducted without a warrant. Warrantless searches of this sort must still, of course, comply with the Fourth Amendment’s reasonableness requirement. The federal courts have treated warrantless searches to obtain foreign intelligence analogously, holding that the Constitution does not require a warrant, although it does require that the searches be reasonable….
Mukasey went on to say that surveillance of those within the United States required a more complex analysis of privacy interests, as recognized by the Foreign Intelligence Surveillance Act [text] and Protect America Act [text], but that ultimately, executive authority with regard to foreign surveillance was subject to "regulation" rather than "preemption" by the legislature.

Despite initial comments by Leahy [JURIST report] that Mukasey was likely to be confirmed without undue delay, his refusal [JURIST report] to take a definitive stance on whether or not waterboarding constitutes torture has raised concerns [JURIST report] among Leahy and other committee members. Mukasey did not address the waterboarding issue in the letter released Friday, although he did note generally that torture was prohibited by the laws of the United States as well as the Constitution. AP has more.

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