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

[punchdrunk]

So was that his argument?

Boiled down, I believe so. Perhaps he will confirm or deny.

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

It was used as a response to President Bush's argument:

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.

 

[Mycroft]

Boiled down, I believe so. Perhaps he will confirm or deny.



It was used as a response to President Bush's argument:

What is fos?

 

[hammegk]

full of s..t

 

[President Bush]

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.

Let´s hear it, Mr Holmes.

 

[President Bush]

Indeed there are strong arguments, but "these wiretaps must be legal or 300,000 people will die" is not one of them

Well put. Not sure of Mycroft´s point though:

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.

Are what, illegal? That´s what you seem to be saying here. Or is your denial showing?

Used to be conservatives were known for being hard headed realists. No more. The conservatives on this thread seem to prefer fable and enthusiastically embrace fallacy.

Not unlike the administration. Nobody anywhere seems comfortable admitting that the president broke the law. Get over it.

My advice: start practicing some damage control, find a legitimate constitutional defense for the illegal domestic wiretapping, and don´t weaken the office of the Presidency (in a confrontation with the Congress) through haste to reassert its strenghths.

 

[Mycroft]

Well put. Not sure of Mycroft´s point though:

That if one wants to make an argument that these wiretaps are illegal, then one needs to place the wording of the law above what one feels should be right.

Are what, illegal? That´s what you seem to be saying here. Or is your denial showing?

No, legal. Manny makes a strong argument, one you have only contradicted, not refuted.

Used to be conservatives were known for being hard headed realists. No more. The conservatives on this thread seem to prefer fable and enthusiastically embrace fallacy.

Ad hominem.

Not unlike the administration. Nobody anywhere seems comfortable admitting that the president broke the law. Get over it.

You don’t feel comfortable admitting that maybe the US constitution allows for something you don’t like.

My advice: start practicing some damage control, find a legitimate constitutional defense for the illegal domestic wiretapping, and don´t weaken the office of the Presidency (in a confrontation with the Congress) through haste to reassert its strenghths.

Excuse me, domestic? That’s stretching the definition, don’t you think?

 

[Renfield]

I think the position of Alito is that the constitution tells us that if the president is a Republican he is the supreme leader, overlord, and master of all he surveys. If its a democrat he'll have to think about it.

Similar to the right's position of judicial activism, which says that the judicial branch should stay out of the way and limit itself to interpreting the law, unless its some stupid, nansy pansy liberal thing in which case it deserves to be shot down.

 

[hammegk]

Hmm. I watched the most of the hearings so far, and I heard Alito to propose that Congressional legislation cannot override Executive authorities granted by the Constitution.

And back to JREF's Pres.Bush-MarkII; will congress agree with his fos contention given another succesful attack on US soil? IMO, the actual number of casualties should be irrelevant, even though the larger the number, the more willing congress would likely be to acquiesce.

 

[Renfield]

That if one wants to make an argument that these wiretaps are illegal, then one needs to place the wording of the law above what one feels should be right.



No, legal. Manny makes a strong argument, one you have only contradicted, not refuted.



Ad hominem.



You don’t feel comfortable admitting that maybe the US constitution allows for something you don’t like.



Excuse me, domestic? That’s stretching the definition, don’t you think?

The right wing's arguments on this are nothing but wishful thinking. The laws on this subject have been in place for decades, and they've never been challenged or overruled by the supreme court. Now we've got a Republican president and the rights trying to snatch up as much power as they can get their hands on, so they try resorting to these specious constitutional arguments. This after all their talk about strict interpretations of the constitution, limiting the federal governments power, etc. I'd say the hypocrysy was shocking, but at this point nothing the right says or does could shock anyone.

 

[Mycroft]

The right wing's arguments on this are nothing but wishful thinking.

Fine, I respect your differing opinion, but wouldn't it be better to make an argument for it rather than just stating it?

 

[hammegk]

He would, if he had one to make. He doesn't.

 

[President Bush]

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.

So you think these phone taps are legal. Can´t tell by your sentence, thus the winking smiley in my prior quoting of this sentence.

That if one wants to make an argument that these wiretaps are illegal, then one needs to place the wording of the law above what one feels should be right.

Sounds woo to me.

No, legal. Manny makes a strong argument, one you have only contradicted, not refuted.

Manny makes a strong argument about what where? Are we reading the same thread?

Assertions such as this:

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.

are simply wrong. Tell Congress that ¨the courts¨have already addressed whether FISA warrants are optional in domestic (in the US) wiretapping.

That the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment doesn´t give the President inherent authority to ignore FISA provisions.

Or any other law.

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 was also written by the legislature and, of course, signed into law by the executive. It 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.

Is this hard to understand? And if I am wrong, please show me where.

Caught manny peddling a steaming pile of horse apples. He claimed a Foreign Intelligence Surveillance Court of Review ruled that the President could authorize warrantless domestic electronic surveillance despite FISA's restrictions. This ain´t true. Read it if you don´t believe me.

 

[Manny]

You know, you can keep saying that until this thread gets longer than Larsen's ridiculous dodgeball exhibition in the air marshall thread but it won't magically become more true. Language just doesn't get more clear than "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."

Does Congress disagree with the Court's interpretation? Congress may very well disagree -- in a separation of powers pissing match it's entirely reasonable for Congress to side with itself. But even if that's the case (and that is not particularly well established by the legislative history), this whole thing is downgraded from "OMG BUSHITLERBURTON broke teh C0n57i7u71oN!!!! IMPEACHMAS!!eleventy!!" to a minor separation-of-powers disagreement in which the President is starting with a 4-0 advantage in the judicial branch.

 

[Renfield]

He would, if he had one to make. He doesn't.

Others have made those arguments before me in this thread. I'm not going to repeat them in detail. You'd probably go right on misunderstanding or ignoring the important points. Basically, Nixon tried making similar arguments regarding wiretapping and the supreme court smacked him down. And FISA is pretty clear - it was written for situations just like this. Its been in affect for over twenty years.

But go ahead and keep repeating that the President can do whatever he wants (as long as he's a right winger, no doubt). With this Republican court we have now, principles, civil rights, and the law are bound to go out the window. It may be true sometime in the near future.

 

[Renfield]

"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."

Selective use of a quote from the FISA courts that the right has latched on to in order to muddy the waters and obfuscate. They've been referancing it all over the place.

The problem though is the FISA court was not arguing that the president has unlimited power to authorize searches, seizures, surveilance, etc. They were arguing that the president does have the right to authorzie them, but it wasn't an unlimited power. The court wasn't saying that it had no reason to exist. Here's a link that gives a little context to that statement. Yes, its to a liberal website. The right wing sites aren't too keen to give out this information for some reason.

http://thinkprogress.org/2005/12/21/appeals-court-myth

 

[President Bush]

The President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment:

From the ¨Keith¨ case:

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government."

From the ¨Butenko¨ case:

Both executive authority in the foreign affairs area and society's interest in privacy are of significance, and are equally worthy of judicial concern...

The importance of the President's responsibilities in the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President's powers in that area. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage. Obligated to conduct this nation's foreign affairs, he must be aware of the posture of foreign nations toward the United States, the intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign states on a broad range of international issues.

To be sure, in the course of such wiretapping conversations of alien officials and agents, and perhaps of American citizens, will be overheard and to that extent, their privacy infringed. But the Fourth Amendment proscribes only 'unreasonable' searches and seizures. And balanced against this country's self-defense needs, we cannot say that the district court erred in concluding that the electronic surveillance here did not trench upon Ivanov's Fourth Amendment rights.

Frm the ¨Truong¨ case:

Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.

In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.

The questions being addressed here are Fourth Amendment questions, in the context of Fourth Amendment law, to determine whether the surveillance in each case required a warrant.

Where is the idea anywhere stated that Congress lacks the power to legislate in a way that inteferes with the President's Commander-in-Chief power? That Article II makes Congressional regulation inoperative? That the President has inherent authority to ignore FISA provisions?

Nowhere.

I have never argued that the President lacks the Constitutional authority to conduct foreign intelligence surveillance. But isn´t it sloppy thinking to fail to see the difference between this and domestic wiretapping done without legal (FISA) warrants?

All very sloppy because the President broke the law when he ordered such wiretapping. And it´s hard to admit that.

But that may be (ruled) not unconstitutional (again, due to the President's interest in conducting foreign intelligence monitoring creating an exception to the Warrant Requirement of the Fourth Amendment). That´s the precedent you keep quoting concerning the FISA Court of Appeals, manny.

Just got my PADI open-water certification (and nine dives already). They teach us that that when something goes wrong (like at 100 feet) to STOP. RELAX. THINK.

Give it a try, manny. And stop quoting obiter dictum out of context.

 

[Random]

You know, you can keep saying that until this thread gets longer than Larsen's ridiculous dodgeball exhibition in the air marshall thread but it won't magically become more true. Language just doesn't get more clear than "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."

But FISA doesn't encroach on the President's Constitutional power. It simply sets up regulations regarding it's use. If FISA required the President to give the wiretap orders while doing a handstand and juggling bowling pins with his feet you might have a point, but "get a warrant within three days of starting the tap" doesn't take the President's powers away.

Unless of course you believe that the President has the constitutional power to perform warrantless wiretaps for any any reason he feels like and with no oversight whatsoever. Then your argument makes sense.

 

[hammegk]

Unless of course you believe that the President has the constitutional power to perform warrantless wiretaps for any any reason he feels like and with no oversight whatsoever. Then your argument makes sense.

The problem is that that position is your strawman.

"Any reason" is not in play; constitutionally mandated power under specific situations is, and cheer up; it will be ajudiciated imnsho.

 

[Random]

The problem is that that position is your strawman.

"Any reason" is not in play; constitutionally mandated power under specific situations is, and cheer up; it will be ajudiciated imnsho.

Manny’s argument is that Congress has no regulatory power over the President when he wants to go a-tapping. The President’s authority in conducting these wiretaps is not beholden to anybody, even though can only use it in “specific situations”.

But without any way of insuring that the President is using his warrantless wiretapping ability properly, what’s the point? To say that there are limits to the Presidents power but that no one has any way of enforcing those limits, or even figure out if he is within those limits, is silly.

Why not wiretap foreign dignitaries? How about the families of foreign dignitaries? How about reporters who interview foreign dignitaries? How about the families of those reporters? How about the friends of any of the people above? How about their neighbors?

Obviously, this slippery slope scenario crosses the line at some point, but how do we determine when? If Congress can’t regulate this, who does? The Executive branch that started this program? The Judicial branch that wasn’t informed about it? The handful of Congressmen who were told but forced to remain silent by secrecy requirements?

Either the President’s power to conduct wiretaps in defense of the country has limits that can be enforced, or it doesn’t. There really isn’t a rational middle-ground here.

 

[Manny]

Manny’s argument is that Congress has no regulatory power over the President when he wants to go a-tapping. The President’s authority in conducting these wiretaps is not beholden to anybody, even though can only use it in “specific situations”.

No, it's not. My argument is that Congress has no regulatory authority over the President when he wants to go a-tapping for the purpose of collecting foreign intelligence from foreign powers. FISA hasn't been challenged, as someone correctly pointed out, precisely because it does not regulate that. It regulates, among other things, the tapping of non-foreign powers for purposes of collecting foreign intelligence¹. As I mentioned, I believe that FISA regulates, and Congress has the power to regulate, the wiretapping of US Persons who are not agents of a foreign power -- agents of the Medellin drug cartel, for instance. Now, this leaves some room for litigation. What's a foreign power? In the present case however, there's no dispute. The President asserts that Al Qaeda is a foreign power and Congress endorsed that assertion when they declared war on it.

All that said, as a political matter my comment to Wildcat still stands. I hope -- heck, I pray, that Congressional Democrats try to assert that the President does not have this power. Nothing would make me happier than seeing Ted Kennedy and Nancy Pelosi arguing that the President violated the law by listening to al Qaeda; that he was tasked by Congress to capture or kill them but God forbid he should try to prevent another 9-11 by learning what their US agents are up to when they call home. 70 Republican Senators and 300 Republican Representatives by '08 would solve a lot of problems.


¹: It also regulates tapping of foreign powers for purposes of collecting foreign intelligence when it is done by persons other than the President -- that is to say, if NSA had started up this program without Presidential approval, as the New York Times apparently incorrectly reported the other day, they would be liable under the law.