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

[Random]

Congress can't just legislate away anything said by the Constitution. You need a Constitutional amendment to do that.

That's pretty simple, isn't it?

But Congress did pass the legislation. It is a Law and the President is obligated by the Constitution to respect it as such.

Look, the problem is not warrantless wire taps per se, FISA does allow for those. The problem is that FISA says that Bush can't perform warrantless wiretaps in the way he did. Bush broke the Law, and the Constitution is pretty clear that he can't do that.

Now if Bush wanted to come out and say that FISA is unconstitutional because it restricts his actions, then he was free to make that argument in court (he might have even won, we don't know). Instead, he chose to violate FISA and hoped that no one would find out about it.

Work within the law, work to have the law changed, or challenge the law in court. Those were the legitimate options available to him through the Constitution. He chose "none of the above". That is why he is in legal trouble, if not political trouble (what will it take to bring this nitwit down anyway?).

 

[Manny]

The Uniform Code of Military Justice is a Congressional code of military criminal law. I think that means written by the legislature. Sounds like it might even limit the President's Commander-in-Chief powers. But I honestly don´t remember which amendment that is.

OK, I think I've let you hang yourself with that one long enough. The power "To make Rules for the Government and Regulation of the land and naval Forces" is a specifically enumerated power of Congress under Article 1, Section 8 of the Constitution.

 

[President Bush]

OK, I think I've let you hang yourself with that one long enough. The power "To make Rules for the Government and Regulation of the land and naval Forces" is a specifically enumerated power of Congress under Article 1, Section 8 of the Constitution.

manny, the UCMJ is a federal law enacted by the United States Congress, first established in 1950 and is considered the foundation for the United States military justice system.

A federal law written by Congress and signed into law by the President. Like FISA. If FISA is a law that really isn´t a law, how does one explain the President´s signature on it?

I don´t mind posting my primer again.


Does the President have the (legal) authority to order someone in the military to commit an offense under the UCMJ? Like murder, torture or rape? No, he doesn't.

FISA provides general rules for governing certain operations of the NSA. And it defines the offenses when those rules are violated.

Does the President have the (legal) authority to order someone in the NSA to commit a crime under FISA regulations? No, he doesn't.


I started down this road only after you incorrectly asserted here that Media Matters had it wrong about this:

Recently, conservative media figures have misleadingly cited a 2002 opinion by the Foreign Intelligence Surveillance Court of Review (FISCR) to claim that the president could authorize warrantless domestic electronic surveillance despite FISA's restrictions. They have pointed to the court's reiteration of the president's inherent constitutional authority to conduct foreign intelligence surveillance without a warrant, which FISA cannot encroach upon. Therefore, they argue, Bush could authorize NSA's warrantless monitoring of "U.S. persons," regardless of FISA's restrictions.

But, as Media Matters documented, this argument is a red herring. Their citation of the decision to support the contention that Congress cannot encroach upon the president's constitutional authority ignores constitutional limits on that authority. Of course a law passed in 1978 would not trump the Constitution -- the supreme law of the land. The question is 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. Contrary to these media figures' suggestions, the 2002 FISCR opinion does not address that question.

Why not save yourself a lot of trouble by just admitting that you had that wrong?

 

[President Bush]

The power "To make Rules for the Government and Regulation of the land and naval Forces" is a specifically enumerated power of Congress under Article 1, Section 8 of the Constitution.

Cool. Since the NSA was established as an agency within the Department of Defense (by National Security Council Intelligence Directive 9 on December 29, 1952) the Congress has Constitutional authority to provide rules for governing certain of its operations. By your definition.

Thanks.

One more quote (from 2004 by the Inspector General of the National Security Agency/Central Security Service and listed by the Heritage Foundation as Heritage Lecture #851,

NSA operates in secret on behalf of a democratic republic that is deeply and properly distrustful of secrecy. The conduct of such a mission is tolerable only when it is performed in conformity with the laws and lawful orders of elected officials, and in the long run, only when the agencies that do it enjoy the nation's trust--trust in their competence and trust in their integrity. NSA has a foreign, not a domestic, intelligence mission, and this restriction is deeply ingrained in the Agency's leadership and workforce. The only time NSA may target the communications of a United States person13 in the United States is when there are reasonable grounds to believe such a person, acting on behalf of a foreign power, is knowingly engaging in, or is aiding or abetting, espionage, sabotage, or terrorism. And even then, there are laws and orders that dictate how the Agency must go about it. According to the Joint Congressional 9/11 Report, "Joint Inquiry interviews of a wide range of NSA personnel, from the Director down to analysts, revealed the consistent theme that NSA did not target individuals in the United States."14 That an intelligence agency should be singled out--even criticized--for its "cautious approach to any collection of intelligence in the United States"15 is an extraordinary turn of events.

It was not always so. Most of the laws, orders, and organizational changes that affect NSA's operations were put in place as a direct result of the spy scandals and resulting congressional investigations by the Church and Pike Committees in 1976.16 These investigations disclosed widespread abuses by the intelligence agencies, generally at the request of the executive. Most of them did not involve NSA, but some did--including spying on U.S. citizens for political purposes. As a result of that scandal the pressure for reform was intense, and in 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA). That Act established a special court to hear applications for warrants permitting the interception of communications of specific U.S. persons within this country where there is probable cause to believe they are engaging in, or are aiding and abetting, espionage, sabotage, or terrorism on behalf of a foreign power. If the U.S. person is abroad, the Attorney General may authorize the collection under Executive Order 12333.

Sometimes NSA unintentionally acquires information to, from, or about U.S. persons in the course of targeting a foreign person abroad. Such incidentally acquired information may be retained and disseminated only under narrow circumstances. The information must satisfy a foreign intelligence requirement, and the identity of the U.S. person may be disseminated only if the identity is necessary to understand the foreign intelligence or assess its importance. NSA's Inspector General reports quarterly on all violations of these rules, whether intentional or accidental, to the chairman of the President's Intelligence Oversight Board. These reports not only serve an important external monitoring function; they also have a useful deterrent effect, because mistakes have to be explained, and no one likes to do that.

Have a nice day, manny.

 

[President Bush]

FISA doesn't appear to abrogate "that the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment" with the emphasis on foreign, and sfaics the actual argument is the 4th amendment protection clause of FISA "(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party" on warrantless activities vs "foreign intelligence" and duties by Oath of Office.

Where am I wrong?

so far as I can see... now I get it.

Only making the observation that that the domestic NSA spying probably would pass the Fourth Amendment test (according to Truong, Keith, etc). It's the prohibitions of FISA that are the issue. Yet everyone seems to be using the (possibly) legitimate Fourth Amendment argument to support the case claiming FISA is overruled by the President´s Article II Commander in Chief powers. And that claim is fos.

 

[hammegk]

Assume the next action on US soil involves 30,000 dead; Or 300,000. You still consider that argument fos? And will our elected representatives?

 

[Random]

Assume the next action on US soil involves 30,000 dead; Or 300,000. You still consider that argument fos? And will our elected representatives?

Ah yes, the great Conservative American position. Something bad might happen in the future, therefore we must give up our civil liberties.

"Waaah! Waaah! There are people out there who don't like me! Save us Papa Bush! Save me from the scary terrorists! I think there's some under my bed! Take my rights! Take my civil rights that millions of Americans have fought and died for! Just keep the terrorists away!"

Can Conservatives have some sort of reasonable discussion about the gradual hollowing out of the Constitution without creating thousands of make-believe casualties? Are Conservatives really so scared of binLadens pack of scuzzy nutballs that they are willing to give up their own rights? Are Conservatives really that cowardly?

What makes terrorism so much more frightning than say, the tobacco lobby? It's not the body count, that's for sure.

Fact- You are more likely to die in a car accident than a terrorist attack.

Fact- The Bush administration had a great deal of evidence of a major terroist attack before 9/11 happened. Still didn't stop it.

Fact- You can take the entire Constitution and throw it into the garbage bin and you still are not going to stop every determined nut with a bomb.

I refuse to live in fear of BinLaden, and I refuse to live in fear of the Federal Government.

 

[Beerina]

Assume the next action on US soil involves 30,000 dead; Or 300,000. You still consider that argument fos? And will our elected representatives?

No one's saying this. There's no reason he can't go to the secret court. Evidently, as the president, he can even go there up to 2 weeks after the fact. He's just gotta do it.

That's the problem.

 

[President Bush]

Assume the next action on US soil involves 30,000 dead; Or 300,000.

Edited by Darat: 

Hotlinked image removed - was displaying a pornographic image.

Like if evolution were true, Don wouldn´t like the consequences?

 

[President Bush]

Assume the next action on US soil involves 30,000 dead; Or 300,000. You still consider that argument fos? And will our elected representatives?

Sorry. I forgot about the children...

The preceding post was meant to illustrate the logical fallacy of the Argument from Adverse Consequences.

 

[hammegk]

Y'all did coin the phrase "Better Red Than Dead". My new version is "Better Reds Dead". "Reds" now covers more ground. "Avowed Enemies of the US" works for me.


And I notice my 300,000 dead question has so far been mentioned, not addressed. I see fascism at the end of any trail that resulted in that happening to US citizens on US soil, and I don't like it.

 

[DavidJames]

And I notice my 300,000 dead question has so far been mentioned, not addressed.

Correct it has been rightfully dismissed in the post directly above yours as a logical fallacy, but you should have known that already.

 

[hammegk]

When y'all manage to convince the world at large who vote in US elections that logic trumps politics, you might stand a chance. Meanwhile, keeping poking sharp sticks in your adversaries eyes -- Bright's, Penn (effing morons), Newdow, Dawkins (they are Nazis), etc.

Or keep pretending your side might eventually make a difference....

 

[Mycroft]

Correct it has been rightfully dismissed in the post directly above yours as a logical fallacy, but you should have known that already.

I disagree. Argument From Adverse Consequences is not a fallacy when the discussion is what should be rather than what is.

For example;

If I were to argue that God must exist becasue if he did not there would be no heaven and people would simply cease to exist when they die, that would be a logical fallacy.

If I were to argue that the government should not cut medical spending because hundreds of thousands of people would be without medical care, that would be a perfectly valid use of an Argument From Adverse Consequences.

 

[Manny]

"Argument From Adverse Consequences" is about as good an illustration of a 9-10 mindset as one could wish for. Wanna see an "adverse consequence?"

OK, here's an adverse consequence. And yes, I argue against it.

 

[Random]

I disagree. Argument From Adverse Consequences is not a fallacy when the discussion is what should be rather than what is.

For example;

If I were to argue that God must exist becasue if he did not there would be no heaven and people would simply cease to exist when they die, that would be a logical fallacy.

If I were to argue that the government should not cut medical spending because hundreds of thousands of people would be without medical care, that would be a perfectly valid use of an Argument From Adverse Consequences.

I think it is a fallacy because it uses events that may or may not happen in the future to “prove” what actions should be taken now. One or both portions of the argument may be true, but there is no link inherent in the argument itself. It’s sort of a preemptive post hoc, ergo proper hoc.

Example- “Eliminating Medicare will lead to millions more uninsured people” is a fallacious argument because there is no link between the two ideas in the statement, even though it is accurate. “Millions of people use Medicare as their sole form of health insurance, therefore eliminating Medicare will lead to millions more uninsured people” puts you on much more solid ground.

The statement “The president must have unlimited authority or else terrorists will kill more Americans” has as much inherent truth as the statement “The president must have unlimited authority or else the Earth will crash into the Sun.” You need to fill in the space in the middle.

(edited to change one word for clarity of thought)

 

[Mycroft]

“Eliminating Medicare will lead to millions more uninsured people”

“Millions of people use Medicare as their sole form of health insurance, therefore eliminating Medicare will lead to millions more uninsured people”

The first statement is not a fallacy, it only presumes the information left out, that millions of people use Medicare as their sole form of health insurance is common knowledge and doesn't need to be stated. If that’s true or not (that it’s common knowledge) depends on the audience.

The statement “The president must have unlimited authority or else terrorists will kill more Americans” has as much inherent truth as the statement “The president must have unlimited authority or else the Earth will crash into the Sun.” You need to fill in the space in the middle.

(edited to change one word for clarity of thought)

Except nobody is arguing that the President needs unlimited authority. The argument is if these wiretaps are illegal or not, and while I personally would feel more comfortable with a FISA court subpoena, I think a strong argument can be made that they are.

 

[Random]

Just trying to get a handle on that Argument from Adverse Consequences Fallacy. It is one of the more deceptively tricky ones.

 

[punchdrunk]

The argument is if these wiretaps are illegal or not, and while I personally would feel more comfortable with a FISA court subpoena, I think a strong argument can be made that they are.

Indeed there are strong arguments, but "these wiretaps must be legal or 300,000 people will die" is not one of them - assuming I got the gist of hammegk's assertion. Compare it to the example used here:

the defendant in a murder trial must be found guilty, because otherwise husbands will be encouraged to murder their wives.

 

[Mycroft]

Indeed there are strong arguments, but "these wiretaps must be legal or 300,000 people will die" is not one of them - assuming I got the gist of hammegk's assertion. Compare it to the example used

So was that his argument?

Assume the next action on US soil involves 30,000 dead; Or 300,000. You still consider that argument fos? And will our elected representatives?

I could be wrong, but I don't read it that way.