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

[peptoabysmal]

You very strongly implied that anyone who opposes Bush's policies is a Bush Hater. That is a transparent and lame tactic. It is also untrue.

Fine. You're right. I apologize. It is just more fun to use the term "Bush hater" and I intend to continue using it. It is a term that is generally understood to not include absolutely everyone and it eliminates about a paragraph of explaining who they are.

Are there people who hate him? No doubt. Nowhere near the number that hate Hillary Clinton...and certainly not with as much irrational venom.

Now you're making me laugh out loud.

How much wasted effort and venom has been spent by uh, Bush haters on these topics? (By wasted, I mean it hasn't had the desired effect.)

The 16 words.
The Plame affair.
Military service controversy.
24-Year-Old DUI Arrest.
Bush's Religion.
And while we are on the subject of wiretaps, Tapes hint Bush smoked marijuana

MERRY CHRISTMAS! From all of us at Bush Watch.

 

[Mark]

Now you're making me laugh out loud.

I'm here to help.

 

[WildCat]

Sorry, I sort of misread it. Gorelick was arguing that the president had the authority to do warrantless physical searches and that there was no law regulating that ability. Gorelick then went into a long speil about how there was nothing in existing law or case law that regulated that ability. Gorelick then states that the administration would support additions to the law regulating this power, provided they did not unduly obstruct the president's ability to perform his function.

The administration did not argue that the president had the authority to ignore existing law regulating physical searches.

But, as Gorelick noted, before FISA the courts had ruled that the POTUS did have the Constitutional authority to order physical searches for intelligence purposes, and had also ruled that there is no difference between a physical search and an electronic one for this purpose. Once that (that this is a Constitutional power of the POTUS) is established, any law Congress passes in this regard is irrelevant since Congress cannot pass a law that infringes on the power of the POTUS. Just as congress can't pass a law that, for example, takes away the veto power of the POTUS.

I think the confusion here arises from the differences between searches for intelligence gathering (under the purview of the powers of the POTUS) and searches for the purposes of a criminal investigation. The POTUS cannot order warrantless searches for the latter, but clearly can for the former.

 

[Mycroft]

I think the confusion here arises from the differences between searches for intelligence gathering (under the purview of the powers of the POTUS) and searches for the purposes of a criminal investigation. The POTUS cannot order warrantless searches for the latter, but clearly can for the former.

Wow, I'd never thought of that distinction. Wouldn't it make everything discovered from such a wiretap inadmissable for criminal prosecution?

 

[hammegk]

It'd depend on the exact circumstances, but most likely, inadmissable.

 

[Random]

But, as Gorelick noted, before FISA the courts had ruled that the POTUS did have the Constitutional authority to order physical searches for intelligence purposes, and had also ruled that there is no difference between a physical search and an electronic one for this purpose. Once that (that this is a Constitutional power of the POTUS) is established, any law Congress passes in this regard is irrelevant since Congress cannot pass a law that infringes on the power of the POTUS. Just as congress can't pass a law that, for example, takes away the veto power of the POTUS.

But Bush hasn't made the claim that FISA is unconstitutional (which is a legal issue for people with minds I freely admit are greater than my own), Bush has stated that he simply doesn't have to obey the law. Congress passed a law stating that performing a certain action was illegal, and Bush went out and performed that action.

While the president may have the constitutional authority to perform warrantless searches, he does not have the authority to ignore laws passed by congress.

 

[hammegk]

... he does not have the authority to ignore laws passed by congress.

Unless said laws "infringe on the constitutional authority given POTUS by that document".

 

[joe1347]

Article 2: Abuse of Power.

Using the powers of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, imparting the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposes of these agencies.

From what we know - so far - Bush's misdeeds don't seem to rise (or sink) to the Nixonian level. But from Article 2 (from Nixon Impeachment) - Bush certainly seems to be straying into dangerous territory with his utter disregard for the 4th Amendment.

 

[Random]

Unless said laws "infringe on the constitutional authority given POTUS by that document".

Even then he can't do it. The President cannot ignore the laws laid down by Congress any more than you or I can. He can challenge them in court as unconstitutional and seek to have the courts lift them, but he cannot ignore them. Heck, resolving issues like this is what the judicial branch is for.

Bush did not try to challenge the law in court, he simply ignored it and hoped no one would notice.

 

[Melendwyr]

Wow, I'd never thought of that distinction. Wouldn't it make everything discovered from such a wiretap inadmissable for criminal prosecution?

You're assuming we care about criminal prosecution. In their fervor to prevent terrorist attacks, I suspect they only care about keeping *everything* under surveillance.

 

[joe1347]

Even then he can't do it. The President cannot ignore the laws laid down by Congress any more than you or I can. He can challenge them in court as unconstitutional and seek to have the courts lift them, but he cannot ignore them. Heck, resolving issues like this is what the judicial branch is for.

Bush did not try to challenge the law in court, he simply ignored it and hoped no one would notice.

Bush should refresh his memory on "Article 3 - Contempt of Congress" (from Nixon Impeachment).

 

[WildCat]

But Bush hasn't made the claim that FISA is unconstitutional (which is a legal issue for people with minds I freely admit are greater than my own), Bush has stated that he simply doesn't have to obey the law. Congress passed a law stating that performing a certain action was illegal, and Bush went out and performed that action.

While the president may have the constitutional authority to perform warrantless searches, he does not have the authority to ignore laws passed by congress.

I've already shown earlier in this thread how his actions appear to comply w/ FISA. But FISA was not necessary for him to do what he did, and this was supported by the courts as a presidental power before FISA.

As far as having FISA declared unconstitutional, wouldn't he have to be charged w/ violating it before he would have standing to sue over whether it is unconstitutional? I'm not at all sure about this.

 

[WildCat]

From what we know - so far - Bush's misdeeds don't seem to rise (or sink) to the Nixonian level. But from Article 2 (from Nixon Impeachment) - Bush certainly seems to be straying into dangerous territory with his utter disregard for the 4th Amendment.

Joe, Nixon engaged in political espionage in order to affect a presidential election. This is not a power granted to the POTUS by the Constitution.

Bush (and Clinton before him) authorized warrantless searches for intelligence gathering purposes in his role as Commander-in-Chief. This is a power granted by the Constitution.

Don't plan your "Bush Convicted" party just yet...

 

[joe1347]

Joe, Nixon engaged in political espionage in order to affect a presidential election. This is not a power granted to the POTUS by the Constitution.

Bush (and Clinton before him) authorized warrantless searches for intelligence gathering purposes in his role as Commander-in-Chief. This is a power granted by the Constitution.

Don't plan your "Bush Convicted" party just yet...

Fortunately for Bush - he doesn't have to face a Democratically controlled House or Senate (unlike Nixon). Otherwise - I suspect that a House and/or Senate inquiry would uncover plenty (on this issue as well as others) that Bush needs to keep hidden. But without an independent Congress willing to perform oversight - Bush is likely safe.

 

[RandFan]

Yes, it is. You are not entitled to generate positions on objective realities and then defend them by claiming they're opinions, nor can you dismiss criticisms of your positions by saying the criticisms are opinions.

Generating a position on an objective reality would be fine assuming the position isn't a non sequitur.

 

[Random]

I've already shown earlier in this thread how his actions appear to comply w/ FISA. But FISA was not necessary for him to do what he did, and this was supported by the courts as a presidental power before FISA.

His actions do not comply with FISA. If they complied with FISA, he could simply say so and this whole scandal would be over in a day. Not even Bush is claiming he complied with FISA. Indeed, his defense seems to be "This law is stupid and I had a right to violate it". FISA does allow for warrantless wiretaps, but has strict requirements for them. Bush did not comply with the requirements.

As far as having FISA declared unconstitutional, wouldn't he have to be charged w/ violating it before he would have standing to sue over whether it is unconstitutional? I'm not at all sure about this.

If there is a law to infringes on the rights and responsibilities of the presidency, the president can challenge that law, even if no charges have been brough against him. The limitation on his powers would give him standing, so he could challenge it in court without haivng to break it first.

Bush did not do this.

 

[hammegk]

... Bush did not do this.

I see. What is your source for knowing that?

The President cannot ignore the laws laid down by Congress any more than you or I can.

Agreed. Prove in a court of law he has done so. You will discover you need to impeach him, and remove him from office, first. This problem involves national security rather than Oval Office bjs.

 

[joe1347]

Agreed. Prove in a court of law he has done so. You will discover you need to impeach him, and remove him from office, first. This problem involves national security rather than Oval Office bjs.

With loyalists (what used to be called Republicans) controlling the House and Senate - the ability to investigate the President's misdeeds is close to zero. So how can anyone prove (or disprove) whether the Presidents actions violated his constitutional oath? Maybe Bush should voluntarily submit to an impeachment proceeding (in the House) to clear his good name.

 

[joe1347]

Top 12 media myths and falsehoods on the Bush administration's spying scandal . . . .

4: Clinton, Carter also authorized warrantless searches of U.S. citizens

Another tactic conservatives have used to defend the Bush administration has been to claim that it is not unusual for a president to authorize secret surveillance of U.S. citizens without a court order, asserting that Democratic presidents have also done so. For example, on the December 21 edition of Fox News's Special Report, host Brit Hume claimed that former presidents Jimmy Carter and Bill Clinton issued executive orders "to perform wiretaps and searches of American citizens without a warrant."

But as the ThinkProgress weblog noted on December 20, executive orders on the topic by Clinton and Carter were merely explaining the rules established by FISA, which do not allow for warrantless searches on "United States persons." . . . .

What Clinton actually signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

That section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person." That means U.S. citizens or anyone inside of the United States.

The entire controversy about Bush's program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton's 1995 executive order did not authorize that.

Drudge pulls the same trick with Carter. . . . . .

http://mediamatters.org/items/200512240002

The linked article deflates quite a few of the Bush Admin supporters talking points.

 

[Manny]

That section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person." That means U.S. citizens or anyone inside of the United States.

(emphasis added)


Mediamatters is lying to you. The definition of a United States Person excludes "a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section." The referenced section in turn refers to, among other things, "(2) a faction of a foreign nation or nations, not substantially composed of United States persons." Pretty much everyone (including people who oppose the President's decision on this issue) agrees that al Qaeda is a "foreign nation" for purposes of the Act. So as long as the faction(s) surveilled are not "substantially" composed of United States Persons it is legal to monitor their communications to overseas.

Here's another lie from those guys. In reason number 12, they claim that the FISA court of review does not address the question of "the scope of that presidential authority and whether it extends to acts that would violate the provisions of FISA protecting U.S. persons from excessive government intrusion." Indeed, that very decision addresses it as clearly as can be done in the English language.

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.

As best I can tell, the only question really at issue is whether a FISA search conducted without a FISA warrant would be admissible in a criminal court -- the searches themselves and the use of the intelligence gathered therefrom is already well addressed by the courts.