To conclude one way or another as to whether the president is a lawbreaker, we must determine the applicable law. There is a great deal of discussion as to whether the Congressional authorization to use military force to defend the United States from future terrorist attacks justified the administration’s decision to conduct warrantless surveillance in lieu of visiting the Foreign Intelligence Surveillance Act court. Since five members of the Supreme Court ruled in 2004 that the detention of an American citizen named Yaser Esam Hamdi, who took up arms against the U.S. in Afghanistan, was valid under the statute, it isn’t a stretch to conclude that it permits the surveillance of a telephone conversation between someone in the United States and a member of al Qaeda in a foreign location. After the murder of thousands of Americans, Indonesians, Spaniards and residents of London, surely the president deserves the benefit of the doubt.

Although the niceties surrounding the doctrines of statutory interpretation, statutory construction and legislative intent are certainly important, it is the Constitution that is the basic law of the land. In this regard, the comments of the appellate court with jurisdiction over the FISA court are certainly pertinent to the question of the required level of presidential compliance to the FISA statute itself. The court made the observation that “FISA could not encroach on the president’s constitutional power.” In other words, Congress itself is subject to the separation of powers doctrine.

The unique role played by the president in the conduct of war and over foreign affairs has long been recognized in the American legal and historical tradition. John Jay, who served as both secretary of State and as chief justice of the United States, suggested in Federalist paper No. 64 that the president would be best suited “to manage the business of intelligence in such manner as prudence may suggest.” Similarly, the Supreme Court acknowledged presidential power is greater over foreign affairs than over domestic policy, stating, “The president is the sole organ of the nation in its external relations and its sole representative with foreign nations.”

The distinction between the foreign and domestic forums has been explicitly recognized in the context of Fourth Amendment search and seizure law itself. In United States v. Keith, the Supreme Court held that although warrants were required in domestic surveillance cases, it indicated that it was not addressing the question of activities relating to foreign powers or their agents. Circuit courts have applied Keith in the foreign intelligence context and have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States that target foreign powers or their agents. In fact, in Katz v. United States — the seminal Fourth Amendment right-to-privacy case — Justice Byron White made the following observation in his concurring opinion:

“Wiretapping to protect the security of the nation has been authorized by successive presidents. The present administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate’s judgment if the president of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.”

This moderate jurist, appointed to the highest court of our land by President John F. Kennedy, effectively captured the unique circumstances encountered by any president faced with the responsibility of protecting the American people. In fact, as the U.S. District Court for the Southern District of New York in U.S. v. Bin Laden has recognized, “warrantless foreign intelligence collection has been an established practice of the executive branch for decades.” Indeed, former Associate Attorney General John Schmidt, who served during the Clinton administration, commented in the Dec. 21, 2005, edition of The Chicago Tribune that: “President Bush’s post-Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.”

If there is dissatisfaction with the conduct of the surveillance program, the primary check on the president’s authority is the Congressional power of the purse. Secondly, Congress may adopt legislative restrictions on the president’s actions. Thirdly, if there were a clear violation of the Constitution by the president, Congress retains the power of impeachment and removal. There is no evidence that this is warranted under the present circumstances. Finally, the ultimate check on the president’s authority rests with the American people at the ballot box — either directly in the election of the president or indirectly through the election of their Representatives. In the meantime, let’s remember that the law should not be debated in a vacuum where the horrific facts that brought about this program are forgotten. Let us never forget.

Rep. Dan Lungren (R-Calif.) is a member of the Judiciary Committee.