I see absolutely nothing wrong with the Administration arguing Executive power, but accepting a legislative solution
I see absolutely nothing wrong with the Administration arguing Executive power, but accepting a legislative solution to the debate so as not to spend everyone's energies on a fruitless confrontation in an area where they were going to continue to do what they have been doing from the start, regardless[....]
Changes In Technology Since 1978 Had The Effect Of Expanding The Scope Of FISA's Coverage To Include Intelligence Collection Efforts That Congress Excluded From The Law's Requirements. This unintended expansion of FISA's scope meant the government, in a significant number of cases, needed to obtain a court order to collect foreign intelligence information against a target located overseas. This created an unnecessary obstacle to our Intelligence Community's ability to gain real-time information about the intent of our enemies overseas[....]
This new proposal would substantially enhance our capabilities to collect intelligence on targets located overseas.
Over the past three decades this law has not kept pace with revolutionary changes in technology. As a result, our intelligence professionals have told us that they are missing significant intelligence information that they need to protect the country.
If the Executive has the inherent power to ignore FISA, how was FISA an "obstacle" that caused us to miss "significant intelligence information," and how does the amendment "substantially enhance our capabilities"?
So, I would reverse the burden of proof. I would suggest that either the Administration still believes in enough Executive power that the FISA amendment was not necessary, and you then have to answer the question of why they worked to get the amendment, or that the Administration has changed its view on Executive power and whether it has to abide by the letter of FISA.
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.
held that FISA could not constituionaly restrict the Presidents inherent power to collect foreign intelligence
We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.
held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."
The President has a great number of constitutional powers -- call them "inherent" (or , as in Hamdan, "independent") powers -- that he may exercise in the absence of statutory restriction. (This is basically what's described in "Category II" of Jackson's Youngstown concurrence.)
But the fact that a power is "inherent" does not mean that it is exclusive, or non-defeasible [and] that Congress may not enact statutes to regulate these functions. Of course it can. For exmaple, the Court held in Swaim v. United States, 165 U.S. 553 (1897), that the President has inherent authority to convene courts-martial in the absence of statutory authority. But that doesn't mean that Congress cannot, by statute, regulate how such courts-martial will operate. And once it does so, the President is bound to comply with statutory limits. See Loving v. United States, 517 U.S. 738 (1996).
Similarly, in Hamdan itself, the Court assumed for purposes of argument (see top of page 28) what has been assumed since the Civil War, namely, that the President may constitutionally convene military commissions to try suspected enemies for violations of the laws of war without the sanction of Congress in cases of controlling necessity. But, the Court went on to explain, "Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet &Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring)."
In other words, deciding that a presidential power is "inherent" or "independent" does not begin to answer the question of whether it is defeasible, or regulable, by statute.
Thus, even if those courts of appeals you cite were correct that the President would have "inherent" constitutional authority to engage in warrantless electronic surveiilance, FISA placed limits on such surveillance and specifically restricted the President from doing what his "inherent" powers might allow. That limitation is perfectly constitutional. Nor did the courts of appeals in those cases suggest otherwise. To the contrary, in the one case decided after enactment of FISA, United States v. Truong Dihn Hung, the court indicated that FISA's restrictions were constitutional. See 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President").