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

[Random]

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.

So the President can spy on members of AlQueda? How about suspected members of alQueda? How about people who have had communications with members of alQueda? Family members? Lawyers for enemy combatants? The owner of the Chinese restaurant down the street when a sleeper cell orders takeout? There is no real oversight for any of this, or any way of checking who’s who. It’s all who watches the watchmen type stuff.

Also the Authorization to use Military Force argument is a pretty thin limb to go out on. The President specifically asked that this authority be added to the AUMF, and Congress shot him down.

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.

Yes, Democrats would look stupid saying that Bush doesn’t have the authority to monitor AlQueda. That’s why none of them are saying it. What they are saying is that the President’s wiretapping program might be in violation of the law. There is a difference. No one claims that police do not have the authority to arrest drug dealers. If some off-duty police officers just drive up to a suspected crack house and start spraying machine gun fire willy-nilly however, someone might object to that.

 

[Cylinder]

If an al Qaeda cell took over a nuclear power plant in the United States in a bid to initiate a core release or meltdown, would the President have existing power to use military forces in response under the AUMF or would the Posse Comitatus Act of 1878 restrict the response to federal, state and local law enforcement agencies?

I'm not interested in tactical considerations but rather the Constitutional question.

 

[Renfield]

So the President can spy on members of AlQueda? How about suspected members of alQueda? How about people who have had communications with members of alQueda? Family members? Lawyers for enemy combatants? The owner of the Chinese restaurant down the street when a sleeper cell orders takeout? There is no real oversight for any of this, or any way of checking who’s who. It’s all who watches the watchmen type stuff.

Also the Authorization to use Military Force argument is a pretty thin limb to go out on. The President specifically asked that this authority be added to the AUMF, and Congress shot him down.



Yes, Democrats would look stupid saying that Bush doesn’t have the authority to monitor AlQueda. That’s why none of them are saying it. What they are saying is that the President’s wiretapping program might be in violation of the law. There is a difference. No one claims that police do not have the authority to arrest drug dealers. If some off-duty police officers just drive up to a suspected crack house and start spraying machine gun fire willy-nilly however, someone might object to that.

Given Bush's and the Repug's mentallity that "if you're not with us, you're with the terrorists", I think the Democrats concerns are pretty damn justified. Their is a huge potential for abuse of power there.

 

[Renfield]

If an al Qaeda cell took over a nuclear power plant in the United States in a bid to initiate a core release or meltdown, would the President have existing power to use military forces in response under the AUMF or would the Posse Comitatus Act of 1878 restrict the response to federal, state and local law enforcement agencies?

I'm not interested in tactical considerations but rather the Constitutional question.

Posse comititus applies to American citizens, so unless these are american Al Quada, there's no question about being able to use troops.

I believe there are exceptions where posse comititus does not apply anyway, and that kind of situation where military power is necessary and there is no time to go to congress would probably be one.

 

[Cylinder]

Posse comititus applies to American citizens, so unless these are american Al Quada, there's no question about being able to use troops.

Actually, it applies to American soil.

From 18 USC §1385

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

I believe there are exceptions where posse comititus does not apply anyway, and that kind of situation where military power is necessary and there is no time to go to congress would probably be one.

I guess this was a bad example because Title 18 also allows the millitary to be used against nuclear threats.

How about a chemical plant? Let's say an al Qaeda cell took over a phosgene plant on the outskirts of Houston and threatened a release during the most favorable conditions. Would the AUMF authorize the President to act using the military?

 

[Renfield]

Actually, it applies to American soil.

From 18 USC §1385






I guess this was a bad example because Title 18 also allows the millitary to be used against nuclear threats.

How about a chemical plant? Let's say an al Qaeda cell took over a phosgene plant on the outskirts of Houston and threatened a release during the most favorable conditions. Would the AUMF authorize the President to act using the military?

Having taken the time to look up the Posse Comitatus Act, I think we are both wrong. The act actually bans the use of the military to enforce the laws of the country, so in a situation like that where we are being attacked by terrorists or a foreign army say, it wouldn't even apply. Which makes sense. The purpose of the act was to prevent the army from being used as a police force. Of course you would want the military to be able to respond if the country were facing a military threat or something on American soil.

 

[hammegk]

And consideration of that hypothetical may allow even the meanest intelligence to discern that congress CANNOT pass enforceable laws that take away Constitutional Executive powers.

 

[President Bush]

And consideration of that hypothetical may allow even the meanest intelligence to discern that congress CANNOT pass enforceable laws that take away Constitutional Executive powers.

Like most Americans I feel just fine about this surveillance of citizens who are agents of an enemy during wartime. But I am going to miss you after your arrest and imprisonment.

 

[hammegk]

I'll take my chances with you actually doing a few things ethically and morally.

 

[President Bush]

And consideration of that hypothetical may allow even the meanest intelligence to discern that congress CANNOT pass enforceable laws that take away Constitutional Executive powers.

Is your argument that FISA is an unconstitutional restraint of the President's power to engage in warrantless domestic eavesdropping? The FISA Court of Review (the highest court to rule on the matter, so far) has upheld the constitutionality of FISA...

... in a ruling, by the way, from which many like manny quote dicta to give the fraudulent impression that this FISCR ruled FISA could not encroach on the President’s constitutional power.

 

[President Bush]

I'll take my chances with you actually doing a few things ethically and morally.

Hamdi indicated that an American citizen could be held as an enemy combatant, but it also held that that citizen’s due process rights entitled him to have a meaningful opportunity to contest the designation as an enemy combatant.

I will do what I can regarding your case and, in addition, will fight for your right to struggle heroically against the restraints and anti-psychotic drugs.

 

[hammegk]

... The FISA Court of Review (the highest court to rule on the matter, so far) has upheld the constitutionality of FISA...

Nor do I argue otherwise ... yet.

... in a ruling, by the way, from which many like manny quote dicta to give the fraudulent impression that this FISCR ruled FISA could not encroach on the President’s constitutional power.

Yeah, we await SCOTUS review of a real case. Problems, problems: how does SCOTUS get into the details of executives' pursuing matters as they should to defend the Constitution from "Clear and Present Danger".

Hamdi indicated that an American citizen could be held as an enemy combatant, but it also held that that citizen’s due process rights entitled him to have a meaningful opportunity to contest the designation as an enemy combatant.

Yup, the remaining Constitutional question involves When, and How?

I will do what I can regarding your case and, in addition, will fight for your right to struggle heroically against the restraints and anti-psychotic drugs.

As I will for you when the subsequent administration & congress catch up with you. In the meantime .... are you sure I'm a real worry to you or your agenda?

 

[Renfield]

And consideration of that hypothetical may allow even the meanest intelligence to discern that congress CANNOT pass enforceable laws that take away Constitutional Executive powers.

Actually no. As I pointed out, the posse comitatus act does not apply in that hypothetical situation.

Anyway, again like I said earlier, the Supreme Court has made rulings in which it agreed that the President's ability to authorize wiretaps could be limited. A point that you insist on ignoring when you repeat this tired argument. Until the Supreme Court changes its position, this will continue to be the case. Repeating some tired argument that's already been completely refuted by more then once on this thread isn't going to change that, even if you follow it with one of those winky faces.

 

[hammegk]

I realize nothing will change your mind. I also admit that nothing so far has had any effect on my opinion either.

And who knows; y'all may be edging closer to your faith that the religious right endangers you more than foreign terrorists becoming reality.

 

[LeFevre]

I wanted to point out that some of you got President Bush (suspected sock puppet by some) to break character yet again.


Some posts are missing a few pics Pres, you actually comming out to discuss rather than drive by pic posting?

 

[Manny]

Some posts are missing a few pics Pres, you actually comming out to discuss rather than drive by pic posting?

I really like the new Man of Lead. The old persona was occasionally funny, but mostly not and a bandwidth hog to boot. The new one actually makes cogent arguments and is an asset, at least to this thread and I hope to future ones too.

 

[Mycroft]

I really like the new Man of Lead. The old persona was occasionally funny, but mostly not and a bandwidth hog to boot. The new one actually makes cogent arguments and is an asset, at least to this thread and I hope to future ones too.

I agree. PB out of character is an asset to the forum.

 

[President Bush]

I wanted to point out that some of you got President Bush (suspected sock puppet by some) to break character yet again.


Some posts are missing a few pics Pres, you actually comming out to discuss rather than drive by pic posting?

From the moment I first saw LeFevre's post until the moment I was done I was convulsed with laughter. Some day I plan on reading it.

 

[varwoche]

The chairman of the Senate Judiciary Committee expressed skepticism Sunday over President Bush's domestic eavesdropping program, joining a chorus of Republicans and Democrats who are questioning its legal justification.

Sen. Arlen Specter, R-Pa., who will hold hearings next month on the decision to allow the National Security Agency program without court approval, said he has told Bush administration officials that he believes they are on shaky legal ground.

article

Regarding presidential wartime powers... The war is undeclared and is a permanent state of affairs, already lasting longer than WWII (for the US).

 

[President Bush]

article

Regarding presidential wartime powers... The war is undeclared and is a permanent state of affairs, already lasting longer than WWII (for the US).

And under-wraps proceedings held after the fact to issue secret retroactive warrants now a great bulwark of American Liberty...

... nice read here and here.