Skip to comments.Facts On Warrantless Wire Taps:
Posted on 02/08/2006 6:19:03 AM PST by excludethis
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Funny how liberals right now are not talking about the constitution as a living document. Libs will also say things about this (can't give up freedom for security) that they won't say about guns.
But...but...George Bush is doing it now so it's got be illegal.
This history proves one thing...Presidents throughout American history have violated the Constitution and the Supreme Court has, in most cases, acceded to these violations...but we all knew that
Helluva good post !
Wire taps might very well prevent this from happening...
On the other hand we are in the fix we are in because the door was left wide open for terrorists by many administrations..and the door is still wide open to our south..and millions of invaders of all persuasions have infiltrated.
This is one of the best posts I've ever read on FR.
This is why the 2nd Amendment is so important. As long as we have that trump card, the abuse can only be taken so far. Why do you think the Government banned machine guns the way they did?
I have a big problem with the Patriot Act and these wire taps and if this isn't reason enough to force Congress to repeal some of the BS gun laws, then we are doomed as a nation. To quote "Star Wars"... "So, this is how freedom dies, to thunderous applause."
Hire this man to be the President's spokesperson!!!
Excellent research and information. Thanks.
How wrong you are.
The judges of the United States Supreme Court have not "acceded to...violations" of the Constitution by "Presidents throughout American history".
What they have done is "acceded to" the demands of the Constitution, recognizing its deliniation of the powers and duties of the Chief Executive of the government, the President. They have not allowed Congress to politicize the excercise of those specific executive powers, when it upsets Congress that the Constitution did not divide those specific powers between them, Congress, and some President they don't like.
The founders created a Constitution that wisely established that foreign policy, war making and national defense activities are best handled by a single, highest elected authority, the Chief Executive and that Executive's role as Commander in Chief, and that they not be conducted by a committee from Congress.
They have also recognized that in as much as that division of powers is laid out specifically in the Constitution, mere legislation, as opposed to a Constitutional amendment, cannot unilaterally subdivide those powers, nor can the courts, unilaterally do so - just because they may like to enhance their own power (as does Congress).
In practical terms, what the Courts have done is avoided joining the Congress in its political disputes over constitutionally deliniated Executive Powers. The Courts have forced Congress to recognize it has a remedy to such disputes, if it so willing to attempt that remedy - seek an amendment or amendments to the Constitution. No Congress has been willing to do so and its doubtful any such attempt would succeed.
Given the temerity (unwillingness to act decisively), hypocrisy, political rangling and infighting, backstabbing, deal-making, grandstanding, demogoguery, media-attention-grabbing that passes for Congressional committee "hearings", we must thank God that the authority and powers regarding foreign policy, war making and national security operations are not exercised by such committees.
Try watching the series "24" some time, and afterwards you will thank God that such a "CTU" (Counter Terrorism Unit), as we may have operating somewhere in the country, as depicted on that show, is not running to Congress or a FISA judge every five minutes. They are too busy getting done the job that you, your children and your grandchildren hope to God they are getting done. They have no time or resources to listen into a recitation of the ingrediants to your aunt Mable's secret sauce, even if they wanted to.
I don't think the text of the Constitution supports your position. The Constitution delegates to Congress:
The Congress shall have Power
"To declare War
"To raise and support Armies
"To provide and maintain a Navy;
"To make Rules for the Government and Regulation of the land and naval Forces;
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
"To provide for organizing, arming, and disciplining the Militia....
(Article 1, Section 8)
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States....
(Article 2, Section 2)
Most war powers were given to Congress because the Founders feared a too-powerful Executive who, history has shown, are too often prone to commit their governments to war
Mr. M(adison) and Mr. Gerry moved to insert 'declare,' striking out [the legislative power to] 'make' war; leaving to the Executive the power to repel sudden attacks.
"Mr. Sharman [Sherman] thought it stood very well. The Executive shd. Be able to repel and not to commence war....
"Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war....
"Mr. Mason was agst giving the power of war to the Executive, because not (safely) to be trusted with it.... He was for clogging rather than facilitating war; but for facilitating peace. He preferred 'declare' to 'make'."
(Madison's notes on the Constitutional Convention, 1787)
The constitution supposes, what the History of all Govts. demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl: But the Doctrines lately advanced strike at the root of all these provisions, and will deposit the peace of the Country in that Department which the Constitution distrusts as most ready without cause to renounce it.
(Letter to Thomas Jefferson, April 2, 1798)
In this distribution of powers the wisdom of our constitution is manifested. It is the province and duty of the Executive to preserve to the Nation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the Nation in a state of War.
(Pacificus #1, June 29, 1793)
[W]ar is a question, under our constitution, not of Executive, but of Legislative cognizance. It belongs to Congress to say - whether the Nation shall of choice dismiss the olive branch and unfurl the banners of War.
(Americanus #1, January 31, 1794)
Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our  Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.
(Letter to William Herndon, February 15, 1848)
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. First...the 4th Amendment does not contain any exceptions to its applicability during wartime...so its a tough argument to make that the Founders would have believed violations of it to be Constitutional at any time.
More importantly, even if the 4th Amendment does not apply during wartime...are we even in a war? What is this War on Terror? When do we win? How do we win? When there's no act of terrorism in the world for a certain period of time? I suspect that the "war" will never end...which, if the argument supporters of warrantless wiretapping are making is true, means the 4th Amendment is no longer of any effect...along with any other Constitutional provision that any President determines to be in conflict with his (or her) authority as "commander in chief of the armed forces"
That may be OK while President Bush is in office...but what about when a President Rodham takes office? Do you really want the executive to have the authority to ignore clear Constitutional limitations on executive power?
I don't blame the President for any of this...its the feckless Congress that deserves our contempt. Its up to Congress to make a clear statement as to the scope of this war and who the enemy is...but Congress is happy to turn its authority over to the President by authorizing military force against whoever the President determines to be a threat whenever the President so decides. The Congress is happy to just sit back and either take credit for the war or criticize the President depending on how his military adventures are going at any one time. That's not how it was supposed to be
You might also want to include a note about Benjamin Franklin, who as Postmaster General, regularly opened mail on a national security basis, and did so without warrant.
I'm really hoping that you don't mean to imply that the clause you highlighted was made in reference to "The President shall be Commander in Chief..." clause. That would be a disastrous mis-reading of the Constitution, not only from the standpoint of English grammar, sentence construction and punctuation, but also an error in regards to the intent of the founding fathers. That clause only applies to its immediate antecedent, "and of the Militia of the several States". That has been settled law for over 200 years.
That is incorrect and nearly opposite of what occurred. At the time of the Constitutional convention, they were trying to undue the disaster of the Articles of Confederation, which limited the authority of the national government so severely that it was an impotent shell that could accomplish nothing.
They were so sure of the power they wished to impart to the national government through the new Constitution, that they founded it primarily on the basis of a separation of powers, so that no branch could any longer infringe on the authority of another branch. To limit abuses of those new powers, the founding fathers included carefully delineated powers and a limited system of checks and balances, but the primary focus of the Constitutional Convention was empowerment.
And more to the point of your quote, the war powers were not "mostly" given to Congress, they were divided more or less equally, along the lines of the roles assigned to each branch. Congress was given the power to declare war, while the executive, as Commander-in-Chief, was given the power to make war.
Even your quotes from James Madison's Constitutional Convention Notes, show this to be the fact. Read them again and note that the primary debate was whether to give the executive the power to initiate war through the power of declaring war. Of course that motion failed, yet there was no simply no debate raised by anyone against the necessity of empowering the executive to fight a defensive war, as was clearly noted in those quotes you provided.
Pointedly, it was no less than James Madison who led the ultimately successful effort to limit Congressional authority to the much narrower "declare war" provision, rather than the far broader "make war" provision, which was done specifically so that the executive would maintain the authority to fight a defensive war.
In deed, it was James Madison who as President fought the final two Barbary Wars without a formal Declaration of War. Madison did this because, as the "Father of the Constitution", he knew that the "declare war" clause did not prevent the Commander-in-Chief from engaging the military in armed conflict, once the United States had been attacked.
And let there be no doubt that in the present case, the President is fighting just such a defensive war. America was attacked by foreign terrorists on 9-11 and in fighting this defensive war, the President is in no way limited to merely repelling an attack solely at our own doorstep, but as Madison did, once attacked, the President may defensively pursue both the attackers, as well as any who aid, conspire with, sponsor, or provide sanctuary to those attackers, even if that includes the necessity of invading and subduing a foreign nation in that process.
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