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

[WildCat]

Is there a security reason, a legal reason, or even a practical reason why we shouldn't obtain warrants (delayed warrants in secret courts even) for US citizens? What exactly are we gaining by bypassing the warrants and the checks/balances?

I do believe Bush believes he's doing what's in the best interest of the US; I don't think this is part of some nefarious plan of his to undermine the Constitution. That doesn't mean, however, that the effect of this program won't do just that. Seems to me, if we're going start manhandling the spirit, if not the word, of the supreme law of our land, there should at the very least be a justifiable reason for it.

I just don't understand, why not get the warrants and avoid the bad press and questions of constitutionality?

It is not only the Bush admin. alone that has argued that the POTUS has the legal right to do this, the Clinton admin. has argued the same thing:

At the outset, let me emphasize two very important points. First, the Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General.

Gorelick then goes on to say:

Second, the Administration and the Attorney General support, in principle, legislation establishing judicial warrant procedures under the Foreign Intelligence Surveillance Act for physical searches undertaken for intelligence purposes. However, whether specific legislation on this subject is desirable for the practical benefits it might add to intelligence collection, or undesirable as too much of a restriction on the President’s authority to collect intelligence necessary for the national security, depends on how the legislation is crafted.

But the reality is that Congress can craft no legislation that usurps the inherent authority (that is, Constitutional authority) of the President to order warrantless searches for intelligence purposes. That would be unconstitutional, as it would undermine the seperation of powers. Congress cannot assume, or take away, powers the Constitution grants to the POTUS.

The Dem "outrage" over this is purely political, not legal, and exposes their willingness to play petty partisan politics w/ the national security of the United States.

 

[DavidJames]

The Dem "outrage" over this is purely political, not legal, and exposes their willingness to play petty partisan politics w/ the national security of the United States.

Republican's willingness to invoke this pathetic strawman is exactly why I have no respect for them.

 

[WildCat]

Republican's willingness to invoke this pathetic strawman is exactly why I have no respect for them.

How is this in any way, shape, or form a straw man? It's the same legal and Constitutional issue in dispute here.

I guess if you have no facts to back up your claims, then BS and name calling suffices...

 

[Random]

It is not only the Bush admin. alone that has argued that the POTUS has the legal right to do this, the Clinton admin. has argued the same thing:
(snip)

But Clinton was arguing that he had the authority to do physical searches because FISA and other federal laws did not mention them (the law has since been changed to cover these situations). Clinton never argued that he had the power as the president to ignore the law, just that the law as written did not cover the situation.

FISA did cover the wiretapping that Bush was engaged in (or is still engaged in), and Bush broke those laws saying they didn’t apply to him. There is a difference.

The short version: Clinton said “there is no law”. Bush said “I can ignore the law”.

 

[rikzilla]

How is this in any way, shape, or form a straw man? It's the same legal and Constitutional issue in dispute here.

I guess if you have no facts to back up your claims, then BS and name calling suffices...

Yup...
Try pointing out that Joe McCarthy was actually proven to have had good information per the VENONA declassification of 1995...see how much name calling you get then. When there are no facts to use as ammo; the muck is all there is left.

-z

 

[punchdrunk]

It is not only the Bush admin. alone that has argued that the POTUS has the legal right to do this, the Clinton admin. has argued the same thing:

1) I attempted to avoid partisan issues with my post; my question is why we would want any president, regardless of party affiliation, to bypass a judge for warrants. Don't take issue with my mentioning of Bush, for all I care it could be Clinton or Carter.

2) I've watched and read a fairly large amount of coverage on this, and it seems no one can come to an agreement on, well, any aspect of this issue. So I'm not going to argue over the fine points of some law or past testimony; if they can't figure it out, I know I can't. I'm more interested in looking at the big picture and asking the obvious question - what's the point of a warrantless search?

But the reality is that Congress can craft no legislation that usurps the inherent authority (that is, Constitutional authority) of the President to order warrantless searches for intelligence purposes. That would be unconstitutional, as it would undermine the seperation of powers. Congress cannot assume, or take away, powers the Constitution grants to the POTUS.

Seems to me the 4th Amendment is also part of the Constitution, and that these two ideas - the president's ability to conduct a war and the right of US citizens to not be subject to search without a warrant - are now conflicting with each other and coming to a head. I don't think this issue is as easily determined for constitutionality as you make it out to be, and I wouldn't be suprised if this goes to the Supreme Court for interpretation.

The Dem "outrage" over this is purely political, not legal, and exposes their willingness to play petty partisan politics w/ the national security of the United States.

Wow, you should write for Fox news. Arlen Specter has said he intends to hold hearings on this in the new year, and Dennis Hastert has said that a bipartisan panel should be covened to look into the matter. It's not just the Democrats in Congress concerned over this.

So, putting aside your tu quoque argument, can you provide a reason why the president would need warrantless searches?

 

[DavidJames]

The Dem "outrage" over this is purely political, not legal, and exposes their willingness to play petty partisan politics w/ the national security of the United States.

That's the strawman

 

[Cleon]

Um, am I still allowed to be pissed about this, even if I'm not a Democrat, even if Clinton did it too, etc. etc.?

I just want to know.

 

[Random]

Um, am I still allowed to be pissed about this, even if I'm not a Democrat, even if Clinton did it too, etc. etc.?

I just want to know.

Last I heard, it was still legal to be upset about this, unless there's a presidential decree that says otherwise.

 

[Bjorn]

Last I heard, it was still legal to be upset about this, unless there's a presidential decree that says otherwise.

I think you mean a secret presidential decree.

 

[hammegk]

Sure, but it may be illegal, so one can still be upset.

 

[DavidJames]

Um, am I still allowed to be pissed about this, even if I'm not a Democrat, even if Clinton did it too, etc. etc.?

I had a conversation with my youngest today. I mentioned how messy her room was. Her response? It was cleaner then her sisters.

I've tried to impress upon my children their goals should be higher then simply being just a tad better then a worse example. Clearly I have work yet to do. My gravest concern is she will continue using others behavior as an excuse for her own and end up, shudder, a Republican

 

[WildCat]

But Clinton was arguing that he had the authority to do physical searches because FISA and other federal laws did not mention them (the law has since been changed to cover these situations). Clinton never argued that he had the power as the president to ignore the law, just that the law as written did not cover the situation.

That is not at all what he (through Gorelick) was argueing!

If you'd read it, you'd see that the Clinton admin. position was that he could do those things w/o FISA, as part of the inherent authority of the POTUS.

There is no law Congress can pass to limit such presidential authority!

 

[fishbob]

You can say with a straight face that there aren't people who hate the man and would do anything they could to ensure his defeat?

Not personally. Just when he is in a position of authority.
If he worked at Subway or in the Post Office, I would have no problem with him.

 

[WildCat]

I had a conversation with my youngest today. I mentioned how messy her room was. Her response? It was cleaner then her sisters.

I've tried to impress upon my children their goals should be higher then simply being just a tad better then a worse example. Clearly I have work yet to do. My gravest concern is she will continue using others behavior as an excuse for her own and end up, shudder, a Republican

Talk about a straw man!

 

[joe1347]

" . . . When a president or a king is unaccountable to law, it’s impossible to predict where or how he will act in pursuit of his aims. . . . ."

http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=10772

Again - it's clear that the Bush Admin and - as illustrated by this thread - also the supporters of the Bush Admin definitely do not believe that the 4th Amendment (you know from the Bill of Rights) does not apply to the Executive Branch. I intentionally left out "during the time of war" because as we've seen - the state of war appears to be defined somewhat loosely by most presidential administrations (remember the almost 50 year long cold war?).

Again, this is not some week-end talk show type of issue. This issue clearly falls into the Constitutional Crisis category since the Bush Admin is asserting that they have unchecked (by the courts and Congress) power(s). So I again ask - what else in the Constitution doesn't apply and I'm not being cute about it?

 

[WildCat]

Again - it's clear that the Bush Admin and - as illustrated by this thread - also the supporters of the Bush Admin definitely do not believe that the 4th Amendment (you know from the Bill of Rights) does not apply to the Executive Branch. I intentionally left out "during the time of war" because as we've seen - the state of war appears to be defined somewhat loosely by most presidential administrations (remember the almost 50 year long cold war?).

Again, this is not some week-end talk show type of issue. This issue clearly falls into the Constitutional Crisis category since the Bush Admin is asserting that they have unchecked (by the courts and Congress) power(s). So I again ask - what else in the Constitution doesn't apply and I'm not being cute about it?

Once again, from Gorelicks testimony:

The Department of Justice has consistently taken the position that the Fourth Amendment requires all searches to be reasonable, including those conducted for foreign intelligence purposes in the United States or against U.S. persons abroad. For the reasons I just mentioned, however, we believe that the warrant clause of the Fourth Amendment is inapplicable to such searches. We are satisfied, therefore, that Attorney General approval of foreign intelligence searches pursuant to the President’s delegation of authority in Executive order 12333 meets the requirements of the Constitution.

Pre-FISA case law relating to electronic surveillance in the Fifth, Ninth, Third, and Fourth Circuits have confirmed this view. Additionally, when the Supreme Court determined that warrant requirements applied to electronic surveillance for domestic intelligence purposes in the Keith case, it specifically declined to apply this holding to foreign powers or their agents.

There are fewer cases dealing with physical, as distinguished from electronic, searches, but it is important to recognize that, for Fourth Amendment analysis purposes, courts have made no distinction between electronic surveillances and physical searches.

Bold emphasis mine.

 

[hammegk]

There is no law Congress can pass to limit such presidential authority!

Are you sure these blithering idiots can stand the truth?

 

[Random]

That is not at all what he (through Gorelick) was argueing!

If you'd read it, you'd see that the Clinton admin. position was that he could do those things w/o FISA, as part of the inherent authority of the POTUS.

There is no law Congress can pass to limit such presidential authority!

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.

 

[peptoabysmal]

I don't think that Steinhardt is saying that the law is constitutional, or that it would survive a court case. He is saying that he is having a hard time getting into court due to a lack of standing. Take a look at the first three paragraphs of the article you linked to:

In other words, he needs one of the victims to come forward and state that their civil rights were violated, but those people probably don't know that their rights have been violated.

This is similar to what I said in my response to Bjorn. My point is that there are people trying to accuse the administration of making law designed to violate citizen's rights and there isn't yet anything to substantiate the claim.

This fellow Steinhardt likes to make up scary "what ifs" such as:

"It's only a matter of time before the government gets its hands on those DNA samples and starts playing around with our genetic codes," says Barry Steinhardt, privacy specialist for the American Civil Liberties Union's national office in New York City. "They say they don't want to do that, but not too long ago they were saying they'd only take DNA profiles from rapists and murderers and now they want juveniles ... We're not just on a slippery slope, we're halfway down it."
http://www.usatoday.com/news/washington/2003-04-15-dna-usat_x.htm

It's like finding a drunk guy on the street with a bloody knife and a sack full of money. Something illegal has probably happened, but if the drunk guy isn't talking and no victim is found, the law can't really do anything. Steinhardt is more than willing to fight for the victims here, and he might have a really good court case, but he doesn't know who the victims are, and so he can't fight for them.

We don't know yet that there are any victims.

I will say that the law has potential for abuse. How many other laws have potential for abuse? It's not illegal until the law is used illegally, just like your drunk with a knife and money example. It can't be ruled unconstitutional until there is a case to be tested.

I think that Congress and the Senate definitely need to review the law and make changes where the potential for abuse is unjustified compared to the need to protect our most basic right, the right to not live in fear of attack.

It's a delicate balance, the problem with FISA was that you have to already know that the person was involved in terrorism in order to perform surveillance. What is so wrong about monitoring communications between individuals in the US and countries where known terrorist activities are taking place? This is supposedly how the act(s) have been used to date.

In many ways this battle isn't in the court or the Senate, it's being fought in the court of public opinion. How much protection from terrorists do you want versus how much protection from your own government do you want?

They may be monitoring your conversations with grandma, especially if grandma calls you from Afghanistan to ask how the Jihad is coming along.