So What else in the US Constitution Doesn't Apply During a Self-Declared War?

[Melendwyr]

For the record you have just blatantly mischaracterized my words into a grotesque strawman that you can now gleefully burn on the altar of your politically liberal god.

How exactly did I mischaracterize your words? You said that you weren't worried because you didn't think the government would ever be interested in you or the people you care about. Instead, you suggested that the government's only going to be listening in to people in contact with the "sheet-wearing" nations of the world.

Why do you hate our freedoms?

(Incidentally, don't bother with the strawman defense. My god requires actual humans for burnt offerings. Why don't you stop by sometime so that I can explain in more detail?)

 

[kalen]

So What else in the US Constitution Doesn't Apply During a Self-Declared War?

I'll wager this list in chronological order.

Amendment VI - Right to speedy trial, confrontation of witnesses.

Amendment VIII - Cruel and Unusual punishment.

Amendment IV - Search and seizure.

Amendment I - Freedom of Religion, Press, Expression.

Amendment X - Powers of the States and People.

Amendment XVII - Senators elected by popular vote.

Amendment XX - Presidential, Congressional terms.

 

[rikzilla]

(Incidentally, don't bother with the strawman defense. My god requires actual humans for burnt offerings. Why don't you stop by sometime so that I can explain in more detail?)

I'll be at TAM...you can explain to me in person there. Vegas tolerates all manner of oddity so you should fit right in no matter your proclivities. After all; "What happens in Vegas stays in Vegas" right? So bring your ass on out and tell me face to face; if you have the necessary manly parts that is.

-z

 

[Manny]

Some interesting reading.

Here is a 56-page .pdf file which I found interesting. It is itself not exactly on point -- it is not directly dispositive to the issue at hand. But it has a couple tantalizing things in it. One is evidence of at least some friction between the FISA court and the people applying for warrants from it. The whole "only x were turned down" thing seems to be masking some tension where the government thought the FISA court was holding it back from doing its thing. In the present case, the higher court agreed.

Second is the underlying assumption it makes about the President's authority to conduct warrantless searches for the purpose of foreign intelligence. It presupposes that he has it. Specifically, from page 48,

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.26 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 49 mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

Now some of that seems contradictory. What I think the court is saying is that the President definintely has the authority to conduct warrantless wiretaps for national security purposes and that FISA (as amended -- this is as much a PATRIOT Act case as a FISA one) provides a mechanism whereby the fruits of those searches may be admissible in court under some circumstances. If someone has a better interpretation I'm certainly willing to listen to it.

In any event, a good read and one which I think is necessary for informed discussion of this issue.

 

[billydkid]

I sincerely doubt that my phone conversations with grandma are of any interest to NSA. I also am a skeptic with regard to the actionable intelligence garnered from the recorded conversations of Quakers, Librarians, or even the rambunctious and self righteous legions of moonbattery.

Most of the "Americans" NSA has been listening to are the ones making daily calls to the sheet-wearing nations of the world. This would be a very small and even tiny percentage of "Americans".

We're at war. You folks may not believe it but it's still true. The POTUS has a responsibility to protect the nation. If another successful 9/11 attack had been perpetuated and the POTUS had not done all he could (including this wiretap stuff) he'd sure be in for alot of political trouble. As has happened in the past during wartime certain civil liberties are curtailed in favor of the larger goal of national security. It's not right...it just is. Like the interned Japanese-Americans perhaps we'll erect a monument in 2050 or so to the unjustly spied on Arab-American community...but in the meantime we must do all that's possible to keep from seeing more Americans butchered.

After all, one of the lives saved may be your own.

-z

So it's the old "If your not doing anything wrong you don't have anything to worry about." routine. We're at war, yes, in Iraq, but the war Bush is continually referring to is the "war on terror" which is perpetual and never ending by his own definition. So, we can expect suspension of Constitutional rights in perpetuity since we will be fighting the war on terror indefinitely. As far a seeing Americans butchered, well, maybe we should not be sending them off to die fighting a war which was unnecessary and distracts our energies from actually pursuing terrorists.

 

[hammegk]

... So, we can expect suspension of Constitutional rights in perpetuity since we will be fighting the war on terror indefinitely.

Can we? Go for the $million.

 

[billydkid]

Can we? Go for the $million.

There could have been a question mark after my sentence, but it works either way.

 

[WildCat]

No. We did not get into the specifics at the Law & Order School of Law and Law Enforcement.

Well, there's the rub, isn't it? This isn't about law enforcement, it's about prosecuting a war, and gathering the intelligence necessary to do it.

 

[Upchurch]

Well, there's the rub, isn't it? This isn't about law enforcement, it's about prosecuting a war, and gathering the intelligence necessary to do it.

Well, technically, Bush's first priority should be to protect and defend the Constitution, as per his oath of office. His war should be secondary to that.

 

[WildCat]

Bush is not the first POTUS to take advantage of exceptions in the FISA law:

Ex. Ord. No. 12139. Exercise of Certain Authority Respecting Electronic Surveillance
Ex. Ord. No. 12139, May 23, 1979, 44 F.R. 30311, provided: By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act [this chapter] for the authorization of electronic surveillance for foreign intelligence purposes, it is hereby ordered as follows: 1–101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 (a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

...Jimmy Carter

I don't recall the New York Times et al getting their underpants in a knot over that one, I guess it only matters if it's a Republican POTUS.

 

[Random]

Bush is not the first POTUS to take advantage of exceptions in the FISA law:



I don't recall the New York Times et al getting their underpants in a knot over that one, I guess it only matters if it's a Republican POTUS.

FISA gives the president very broad powers, and I'm sure presidents have taken advantage of them before, but Bush isn't claiming that he had the authority under FISA and tried to comply with it. Bush is claiming that he had the authority under the authorization of use of force signed in September of 2001, which is a pretty broad interpretation at best.

Again, Bush could have gotten what he wanted through FISA, but chose not to. And all of the reasons for doing this that I can think of are either irrational or malicious.

 

[WildCat]

FISA gives the president very broad powers, and I'm sure presidents have taken advantage of them before, but Bush isn't claiming that he had the authority under FISA and tried to comply with it. Bush is claiming that he had the authority under the authorization of use of force signed in September of 2001, which is a pretty broad interpretation at best.

Again, Bush could have gotten what he wanted through FISA, but chose not to. And all of the reasons for doing this that I can think of are either irrational or malicious.

How do you know what the order said? It is secret...

And what are you really claiming here? FISA clearly gives the POTUS authority to do what Bush did. If Bush says "FISA allows me" you'd be satisfied?

eta: That wasn't very clear! The FISA court does not need to be notified under the exceptions in the Act, which of course means he doesn't go through FISA. Neither did Carter, apparently.

 

[joe1347]

". . . . The Fourth Amendment ordinarily prohibits any search, which includes interception of telephone and email messages, without probable cause and a judicial warrant. (The “ordinarily” refers to some very narrow exceptions, inapplicable here, for unintrusive searches and for situations where officer safety or the need to act instantly justifies a departure from the usual requirements.) . . . . Expansive government surveillance of a nation's citizens (think 1984 or of the Soviet Union) can undermine privacy, autonomy, independence, spontaneity, openness, dissent, and the general sense of freedom that is essential to a self-governing society. And, of course, surveillance is a powerful tool with which to suppress political opposition. The Framers of the Constitution clearly understood these dangers and therefore sharply limited the circumstances in which the government could intrude on individual privacy. . . . ."

http://www.huffingtonpost.com/geoffrey-r-stone/king-georges-constitutio_b_12613.html

 

[Random]

That wasn't very clear! The FISA court does not need to be notified under the exceptions in the Act, which of course means he doesn't go through FISA. Neither did Carter, apparently.

The Foreign Intelligence Surveilance Act exception that Carter give his attorney general access to allowed him to spy without a court order on:

(1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;

It does not permit him to do so with:

(4) a group engaged in international terrorism or activities in preparation therefor; (5) a foreign-based political organization, not substantially composed of United States persons; or (6) an entity that is directed and controlled by a foreign government or governments.

That's what the law says. Now to me it is pretty clear that Al Queda fits under 4, which is not cevered by the exception. I suppose you could make a case that it fits in number two as a faction of a foreign nation or nations, but that takes a bit of a stretch.

The point I keep trying to make is that not even Bush is claiming that he is compliance with FISA. He just hasn't made that argument. If he was in compliance, he could just say so and we could all go back to complaining about his handling of the economy, the war in Iraq, the war in Arghanistan, the response to Katrina, etc.

(edited for clarity)

 

[WildCat]

That's what the law says. Now to me it is pretty clear that Al Queda fits under 4, which is not cevered by the exception. I suppose you could make a case that it fits in number two as a faction of a foreign nation or nations, but that takes a bit of a stretch.

Why so? Clearly, al Queda was a faction of the Afghanistan gov't, and has attacked us on several occasions.

eta: Bush has said that the surveilance was only used against al Queda suspects.

 

[Bjorn]

Why so? Clearly, al Queda was a faction of the Afghanistan gov't, and has attacked us on several occasions.

eta: Bush has said that the surveilance was only used against al Queda suspects.

From today's press briefing:

MR. McCLELLAN: Well, no, but this goes to your question. It is limited to people who have -- one of the parties to the communication have a clear connection to al Qaeda or terrorist organizations, and one of the parties is operating outside of the United States.

http://www.whitehouse.gov/news/releases/2005/12/20051220-2.html

 

[joe1347]

If the surveillance (without search warrants) was limited exclusively to al Queda suspects - can someone clearly explain to the us why the Bush Admin did not use existing the FISA court to obtain warrants? From Wildcats well researched arguments - Is it simply that the Bush Admin believes that the 4th Amendment just does not apply during time of war - albiet a somewhat self-declared war? If so, I guess we're back to the original question of what else in the US Constitution can be disregarded during war time. Belaboring the finer legal points of the 4th Amendment seems somewhat irrelevant (to me) - since the bigger (and more serious) question appears to be whether the Executive Branch is required to uphold anything in the US Constitution during the time of war.

 

[WildCat]

From today's press briefing:

http://www.whitehouse.gov/news/releases/2005/12/20051220-2.html

From the POTUS himself:

Q -- why, in the four years since 9/11, has your administration not sought to get changes in the law instead of bypassing it, as some of your critics have said?

THE PRESIDENT: I appreciate that. First, I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates.

And from your link:

MR. McCLELLAN: No, I'm not confirming or denying those numbers. I don't think anyone has done that publicly, so I'm not going to get into a discussion of that nature. But what I will reiterate is that this is very limited and targeted, and that you have to have a clear connection to al Qaeda or a related terrorist organization.

Clearly, Scott just forgot to say "related" the first time.

 

[WildCat]

If the surveillance (without search warrants) was limited exclusively to al Queda suspects - can someone clearly explain to the us why the Bush Admin did not use existing the FISA court to obtain warrants?

None is needed under the exceptions in FISA.

From Wildcats well researched arguments - Is it simply that the Bush Admin believes that the 4th Amendment just does not apply during time of war - albiet a somewhat self-declared war? If so, I guess we're back to the original question of what else in the US Constitution can be disregarded during war time. Belaboring the finer legal points of the 4th Amendment seems somewhat irrelevant (to me) - since the bigger (and more serious) question appears to be whether the Executive Branch is required to uphold anything in the US Constitution during the time of war.

The courts have given the POTUS broad powers to prosecute a war. Of course, I'm sure there will be debate on whether or not this is really a "war" in that sense. Perhaps the Supreme Court will have the final say.

 

[joe1347]

None is needed under the exceptions in FISA.

The courts have given the POTUS broad powers to prosecute a war. Of course, I'm sure there will be debate on whether or not this is really a "war" in that sense. Perhaps the Supreme Court will have the final say.

Agree - the issue of broad executive branch powers (during war) is starting to look both non-partisan (which both Democrats and especially Republicans in office need to realize) and WAY above our pay grades. Remember, Hillary may get elected in 08. However, if the Constitution doesn't apply during war (to the Executive Branch) - remember Nixon?

As for the "are we really at war debate" - here's a link to one perspective:

http://www.washingtonmonthly.com/archives/individual/2005_12/007818.php