[Boot Hill]

inquest:   "Most definitions of the word [competence] in the legal sense focus only on qualifications or admissibility..."

Great, you're getting closer. Now take it one more step and ask yourself how the President could be constitutionally "qualified", yet not be constitutionally "authorized" to conduct warrantless foreign intelligence surveillance.

But even better, and to unburden you and I from parsing the judges words, let's look at how the courts have interpreted the judges words and see whether or not they agree with the underlying proposition, that you've been denying, that the Truong court did indeed adopt the government's argument that...

"In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs."

--U.S. v. Truong Dinh Hung, 629 F.2d 908, 912 (1980)

Now compare that to how later courts read and interpreted the words of the Truong court...

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment. See United States v. Truong Dinh Hung, 629 F.2d 908, 912-14 (4th Cir.1980), cert. denied,"

--United States v. Duggan, 743 F.2d 59 (1984)

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

--In re Sealed Case, 310, F3d. 717, 742 (2002)

Notice that in both the above cases, their decisions relied specifically and primarily upon Truong. Notice too, that both the Duggan court as well as the In re: Sealed Case court both read J. Winter's words as being virtually identical with those presented by the government in Truong.

Let's be clear here, if you wish to argue with the holdings of all these other courts, of course you're free to do so, but then that places your argument on a much different plane, and that plane is not one of trying to inform others what the law is, but rather arguing for what you wish the law to become someday.

As it stands, the best law available on the matter to date, from court after court, clearly and unambiguously has held that the President does have the constitutional authority to conduct warrantless national security intercepts.

inquest:   "...the momentous implications it would have to say that the President can not come under Congress's regulations, when Congress is given explicit power to regulate the government..."

So, you're in favor of doing away with the very foundation of the Constitution, the separation of powers?

The Constitution give no such "power to regulate the government", to the degree that such regulation would pertain to the substantive operations of governmental functions that were granted by the Constitution to other branches of governement.

The doctrine you're referring to, Art. I, sec. 8, cl. 18, also known as the "Necessary and Proper" clause, only empowers Congress to create those laws necessary to enable the various branches of government to carry out their own duties, not to limit those duties or powers.

For example, Congress can create (and did) a Department of State, but the overriding doctrine of separation of powers, constitutionally prevents them from also establishing goals, policies, or methods of implementation of foreign policy. That belongs exclusively to the President.

Inadvertently or otherwise, you've touched on what is at the heart of this NSA wiretap issue. It is not principally, as some suppose, a partisan conflict, nor a pro-war versus anti-war argument. The core underlying issue is that the President has effectively thwarted one more unconstitutional attempt by Congress to ignore the separation of powers doctrine.

Congress has been the 800 pound gorilla running amuck in our government for decades. And only recently have we had Presidents (e.g., Reagan and Bush-43) and courts with enough "nads" to begin reigning them in and reminding Congress that they are only one branch of government in a system of three co-equal branches. The "imperial presidency" is a myth created by Congress.

In short hand, the NSA wiretap issue is an executive/legislative power pissing match.

inquest:   "Once the character of the investigation changed from foreign intelligence to law enforcement, the court's statement about foreign surveillance would no longer apply at all."

As much as I'm sure the court would be impressed with the re-wording of their decision, it still would be incorrect. If the "foreign intelligence surveillance", is done for the sole purpose of intelligence gathering, then no warrant is needed. But if the "foreign intelligence surveillance" is done for the purposes of criminal prosecution, then a warrant is required. Thus the court was proper in making the distinction between the two as they did.

Boot Hill:   "The former was held by the Keith court to be an unconstitutional usurpation of authority..."

inquest:   "Usurpation of whose authority?"

Not "who", but rather "what". It is an unconstitutional usurpation of constitutional authority for the President (to conduct warrantless national security intercepts for purposes of a criminal prosecution).

inquest:   "In fact, law enforcement is a responsibility explicitly assigned to him by the Constitution; foreign policy is not."

So, once again you suggest a two-tiered system of powers, base upon whether they are explicit or inherent powers.

In any event, the Supreme Court has held innumerable times that you are incorrect, see for instance...

"The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."

--United States v. Curtiss-Wright, 299, U.S. 304, 319 (1936)

inquest:   "Earlier you were chiding me for allegedly wanting to set up a "two-tiered" system of the President's powers"

Actually, you didn't limit your suggestion to just the President and neither did my chiding of your suggestion. In any event, it would seem from your preceding comment that it was a richly deserved chiding, but one that didn't seem to have much effect on you.

inquest:   "you expressly contradicted me when I said there is not a two-tiered system of his powers."

Please recall, that the two-tiered system of powers I chided you about was one you suggested based on your false dichotomy between explicit and inherent powers.

[inquest]

Great, you're getting closer. Now take it one more step and ask yourself how the President could be constitutionally "qualified", yet not be constitutionally "authorized" to conduct warrantless foreign intelligence surveillance.

Actually it's you who needs to take one step closer and explain how simply meeting the qualifications for doing something gives you an unregulable right to do it.

Now compare that to how later courts read and interpreted the words of the Truong court...

If they want to talk about "inherent authority", that's fine, just as long as they don't read into the word "competent" an uncontrollable grant of power. If they do, then they're playing word games. It's that simple.

Let's be clear here, if you wish to argue with the holdings of all these other courts, of course you're free to do so, but then that places your argument on a much different plane, and that plane is not one of trying to inform others what the law is, but rather arguing for what you wish the law to become someday.

So you're of the opinion that judges make law. That puts you at variance with the three most recent nominees to the supreme court (including one who was rejected for not being conservative enough), not to mention the vast majority of posters on this board. Just thought you should know.

The Constitution give no such "power to regulate the government", to the degree that such regulation would pertain to the substantive operations of governmental functions that were granted by the Constitution to other branches of governement. The doctrine you're referring to, Art. I, sec. 8, cl. 18, also known as the "Necessary and Proper" clause...

Nope. Back up four clauses. "To make rules for the government".

If the "foreign intelligence surveillance", is done for the sole purpose of intelligence gathering, then no warrant is needed. But if the "foreign intelligence surveillance" is done for the purposes of criminal prosecution, then a warrant is required.

If the "foreign intelligence surveillance" is done for the purposes of criminal investigation, then it's not "foreign intelligence surveillance", now is it? Hence, the court would have been perfectly justified in saying that warrants for purely foreign intelligence surveillance aren't needed at all, if that's what it intended to say.

Not "who", but rather "what". It is an unconstitutional usurpation of constitutional authority for the President (to conduct warrantless national security intercepts for purposes of a criminal prosecution).

Again with the two-tiered reasoning. He's given the power to prosecute criminal violations of federal law, and he's given the power to look out for national security, yet one of them is more equal than the other, according to you. One of them, you say, doesn't have to be subject to the requirements of the 4th amendment or acts of Congress which Congress is explicitly given power to pass.

inquest: "In fact, law enforcement is a responsibility explicitly assigned to him by the Constitution; foreign policy is not."

So, once again you suggest a two-tiered system of powers

Bull. Quote where I was "suggesting" this. I was just stating a fact, and it's one that can hardly be denied. All you have to do is open the Constitution and read it.

My argument is that the first power should not be treated as being any less sacred than the second, unlike the way you would treat them.