Posted on 02/08/2006 6:19:03 AM PST by excludethis
Those LLL morons over at Err Amerika were ranting yesterday about how it was much more important to save the Constitution than their own life. The feel a compelling need to pass the Constitution down to their kids and grandkids even it means they die in the process. Meaning I guess the Evil Bush/Rove WH is destroying the Constitution by intercepting communications of our enemies, and the saving of the Constitution should be the #1 priority and WOT kicks in later. Actually many of the LLL do not believe there is a WOT and it is simply something Rove keeps the publics eye on so the Repubs can stay in power. THESE MORONS MUST NEVER AGAIN IN MY LIFE TIME BE ALLOWED TO BE IN CONTROL OF OUR GOVERNMENT, not even as dog catcher.
As you correctly note, but fail to understand the implications of, it the President who must, by the powers deliniated to that office by the Constitution, preserve and protect the "peace" of the nation. That is why matters of foreign policy, maintaining the national defense structure and foreign intelligence lie, Constitutionally, within the province of the Commander in Chief. It is opposite of prudent, necessary or "constitutional" that the Commander in Chief act as if the world is at "peace" with us simply because some foreign agent has not yet acted so as to create a need for Congress to "declare war". In fact, the Commander in Chief has every constitutional obligation to prevent foreign interests from being able to initiate such acts, before they happen, before any need for Congress to "declare war" arises. That was the whole premise of the 9/11 commission fiasco - how did we fail to "maintain the peace". That is what the purpose of a national defense structure and national intelligence operations are for. Congress can refuse to fund those structures, legislate ways in which they ought to be structures, refuse to approve the President's appointments to those structures, ask questions (hold hearings) about their operations, to better ascertain the appropriateness of requested funding, but Congerss does not operate them, does not manage them, does not run them over the head of the President and they have no power to. The DOD is not a Congressional operation.
As Boot Hill reminds you more eleoquently and thoroughly than I - congress can "declare war", but maintaining the defensive posture of nation, which includes foreign intelligence, is the Constitutional role of the Commander In Chief and it must operate and defend the nation from potential enemies whether or not there is a declared war. And, it is from the actions and by the powers of the Commander in Chief that the Constitution expects those defensive efforts to be conducted, not Congress.
We're told we're in a state of war so that the explicit and clear language of the 4th Amendment requirement that no warrants shall issue "but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" does not apply...in other words, the President's authority as commander in chief of the armed forces conveys authority to ignore the 4th Amendment during wartime.
The 4th amendment requirement has been, continuosly, interpreted as relavent to "law enforcement" activities and not to the collection of foreign intelligence. The NSA and all the "electronic signals" information it collects could not even exist, in practical terms, under your misguided idea of applying the "warrants" clause of the 4th amendment to foreign intelligence. The fact that one-half of a conversation, to or from, a suspected foreign operative, begins or ends on United States soil does not consitute "domestic spying", anymore than FDR's intercepting of all telephone communications leaving or coming into the United States, to or from Japan or Germany, constituted "domestic spying". What J.Edgar Hoover and Bobby Kennedy did without warrants in the case of Martin Luther King constituted "domestic spying", an abuse of federal powers in law enforcment and was in violation of the intent of the 4th amendment requirement for a warrant; but Bobby's warrantless intercepts of conversations between Castro and phone locations in the United States was not.
You have this matter 180 degrees off balance. It is politicians in Congress and their little bruised egos, lacking the Constitutional powers of the Commander Chief, who have continually tried to limit the powers that the Constitution and the founders deliniated to the chief Executive. The "dictator" charge is always dragged out by the little dictators in Congress, deflecting from the fact that the President and the President's successors are and will be the highest elected officials in the nation, representing all the people. That is why the people, in have generally supported their Presidents in matters of national intelligence issues, preferring an active defense to a timid, bumbling and ineffectual congress. In fact, the national leaders who have historically made the grade, in the eyes of the people, were leaders who, whether in war or in peace, led the country, above following Congress. Weak Presidents, like Carter and Clinton have, by historians and the people, failed to make the top grades, and rightly so - they failed to "actively" defend the nation.
Even searches "without probable cause" can be constitutional "when special needs, beyond the normal needs for law enforcement make the elements of a warrant and probable cause requirement impracticable." Ver- onia School District 47j v. Acton, 515 U.S. 646, 653 (1995)
United States v. Clay, 430 F.2d 165 (5th Cir. 1970). The court held that a federal statute could not forbid the President from ordering wiretappeing when gathering foreign intelligence in the national interest. Thus FISA is unconstitutional to the extent it is trying to limit the President's own power under the Constitution.
I know that, you know that, the President knows that, the AG knows that, Mark Levin knows that, but apparently Arlen Specter and some Democrats are not interested in either the Constitution or the case law in these type of cases. But what can we say, doesn't a Senator's job description include the requirement "Love to hear yourself talk".
Before Katz v. U.S., 389 US 347 (1967), warrants were not needed for ANY wiretaps, and were specifically okay under the rule of Olmstead v. United States, 277 U.S. 438 (1928).
President Roosevelt order gave the Government of the United States access without a warrant all communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country.
I'd have to look it up, but I believe there were Congressional grants. 100% of international mail to and from the US was -openly- censored.
Kennedy used warrantless wiretaps on Martin Luther King that were simply approved by his little brother, the attorney general at the time. That fascist Kennedy, listening to a preacher's telephone calls without a warrant!
That one actually raised a bit of a stink. So did the blackmail threats and suggestions that he commit suicide in order to avoid embarrassing disclosure of personal activity. The FBI at its finest hour! Oh for a return to those days.
Clinton also authorized the NSA to wiretap and search the home of CIA spy Aldrich Ames.
He got a warrant for the wiretap, but the FISA Court had no mechanism -at all- for issuing a physical entry order. Not that I think the search was unreasonable - but using Ames as a parallel is an argument that can be turned against you.
http://www.freerepublic.com/focus/f-news/1553690/posts?page=109#109
http://www.freerepublic.com/focus/f-news/1567288/posts?page=1043#1043
Jamie Gorelick, the 9/11 Commission member and former high-ranking Clinton Justice Department official, told the Senate Intelligence Committee in 1994, "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." That fascists Clinton Justice Department, asserting the President has the inherent Constitutional power to conduct warrantless wire taps!
Similar to above, but here you jump from physical entry to wiretap. The wiretap of Ames was done -with- a warrant. There was plenty of cause to get the wiretapping warrant.
Eavesdropping is less heavy-handed than firing missiles or holding terrorists in detention. Supreme Court found it was appropriate to detain an American citizen for fighting alongside al-Qaida. "How can it be that merely listening to al-Qaida phone calls into and out of the country in order to disrupt their plots is not?"
This is really a disjointed argument. It takes a military battlefield scenario and compares reasonable action used there with a completely unrelated situation with quite difference balancing of competing interests. I agree the argument makes a good sound bite, but it's logically twisted.
As for limiting eavesdropping to conversations involving terrorists, I'm confident that if that is in fact the case, the surveillance is eminently reasonable. If we know who the terrorists are (how else could we decide which conversations to listen to?), why don't we pick them up and deal some justice?
"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."--U.S. v. Truong
Just picking that one as an example, I think it captures a phrase that is at the center of the issue, "foreign intelligence." This is good and honest ground to debate from, and avoids trying to conform with "wartime v. peacetime," "authority granted by the AUMF," and all other traps involving grants of power from Congress.
The firmest ground for the administration is based on finding authority in "foreign intelligence" and the duty to "resist foreign invasion."
The "problem" with this class of case, and I think it's in a similar class as War Powers Resolution of 1973, is that there is no neat and tidy way resolve the dispute between Congress and the President. Professor Rober Tirner argues in this article that Congress overstepped its bounds in the War Powers Resolution, and calls on Congress to repeal it.
The alternative, which is always possible, is for a President to flout the law. What is Congress going to do about it?
I see a different sort of future for the warrantless surveillance cases, should they come up. The first venue for that dispute will be the courts, criminal charges or not, and I thik the present line of detention cases gives some insight into how a line of surveillance cases might develop.
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