Posted on 06/23/2007 8:03:06 PM PDT by TheTruthAintPretty
L - you are descending into smarmy hyperbole.
The Constitution is a small document, and I am quite familiar with it. I even carry a copy with me. So thanks for the link, but I don’t need it. The Constitution is a brief document that serves as a basis for the thousands of pages of laws that are enacted by Congress. I can dig out thousands of laws that aren’t really “covered” by the Constitution, in that the Constitution is silent on the topic covered.
In our topic of concern - wiretapping terrorist cell phones, the 4th amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”
Obviously, there are those (like me) who believe that if the military or intelligence agency comes up with a cell phone or a computer that belonged to a terrorist or a enemy combatant - and there are a number of US phone numbers contained therein - that is, in of itself, sufficient basis to conduct a “reasonable” search (i.e. - wire tap.) So the Executive Branch basis for their actions is that the 4th Amendment allows warrantless searches when it is reasonable. And that contention is subject to great discussion and arguments, and lawyers and judges may come to a different opinions, and the Supreme Court might eventually decide a “yea” or “ney” on the position. But intelligent people can argue either side - and try to be reasonable, or can decide to be nasty. For those who declare that to support these wire taps is to be on a slippery slope to Fascism - it is then reasonable for the other side to declare that the opponents of the wire tapping effort must believe in a “terrorist’s bill of rights” and therefore support terrorists. The question is do the people want to have a rational discussion, or to descend into name calling.
Thare are those who are what we in the Navy called “sea lawyers” - who make a wide variety of claims that there are many things happening today that are unconstitutional, and they claim we are on a slippery slope to tyranny.
They are against the metal detectors and searches at airports. (nope - can’t even find the word airport in my Constitution.)
They are against the CIA and FBI; they are against government secrets. They are against a standing army/navy. They want Miranda rules and rules of evidence imposed on the military - or we have to turn POWs loose for lack of evidence (or at least, lack of evidence that hasn’t been tainted, or might have been seized improperly without violating the rights of the enemy.)
But I will engage in the same hyperbole you used in drawing baseless conclusions about me:
Yes - you chose to support your position with a racist, Chief Justice Taney. You too must be racist! You criticized Lincoln over Taney - so you must hate blacks, support slavery, and therefore are even a bigger racist. You want to give terrorists some unspecified Constitutional rights, therefore you must align yourself with terrorists. (But you also support slavery and the South, so you must believe in some portions of the Constitution, while opposing other portions.) [do you like being trashed? go back and read my comments - I never engaged is such sweeping generalizations about you.]
The Constitution is not a completely comprehensive document that covers everything - so no, it is not specific about what the President may do during wartime, acting as Commander in Chief - but there have been many actions by Presidents that serve as guidance - and sometimes actions are later repudiated by Congress. The balance of powers cause a “ying/yang” pull as to what is reasonable. If Congress wants to create a “terrorist protection act” that states that no wiretapping of phone calls originating outside of the US by terrorists is permissible without court authorization - GREAT. Let them go for it. But also let the Congress stake out a firm position, and then let the voters re-elect or throw out of office those who would protect terrorists while exposing Americans to greater danger.
In the present war on Islamic naziism - there have already been a number of Supreme Court decisions regarding issues where some have accused the President of grossly overstepping the bounds of the Constitution - and about 60% - 70% of the decisions have favored the President. I would suggest that the President is not an ogre or an aspiring dictator, but an honorable man who is trying hard to protect the citizens of the U.S., and he is trying to find the boundries of what is permissible. He doesn’t want to unilaterally “disarm” and use Marquis of Queensbury rules to an enemy that knows no rules. I respect his efforts, and won’t disparage the President for his efforts. And a Democrat President who trys to do the same would also merit respect. Now - if we have another President, like BJ Clinton - who misused his powers, and the misuse was for his personal benefit, no respect at all! But as I noted in an earlier post - Clinton (and other Democrat Presidents) will do what ever they want anyway - they abused power in ways far beyond what President Bush has been accused of doing, and the abuse didn’t have any reasonable justification, unlike what President Bush has as a basis for his actions.
Mike
The problem is of course that this “secret program” most likely targets simple political enemies of this President and his Men, as well as the token terrorist.
It may as well be you or me.....unless you think it’s ok for the President to illegaly wiretap anyone he wants...Dems, you, me, anyone with a differing opinion....anyone that voices dissent, etc.
You’d think that Watergate would mean something to someone. Don’t get me wrong, the Dems are dirtbags too, but this “program” is just toooo much of a slap to our faces.
God help us if the Dems should gain the Whitehouse. Either they will use newly obtained evidence of Bush’s trangression on the People to hunt him and his henchmen down, or they will continue to use this “program” for arguably more egregious ends.
But I am contending that, upon entry into any, it is impossible to define what it's "end" will look like.
In retrospect, of course, everything seems quite clear -- almost pre-ordained. But it doesn't look that way on the front end.
Yes, we have to be prepared to fight the jihadists for fifty years -- or more. But is it not possible that, one day, we will wake up and everything will have changed?
For example, nobody -- at least nobody in a position of policy-making expertise nor with a historical perspective -- foresaw the sudden end of the Cold War. It just happened.
My point is that ALL wars are necessarily unpredictable, with indefinable ends.
Accordingly, one does what is necessary to win them. See Truman, Hiroshima.
So can Hillary.
The Constitution is not a completely comprehensive document that covers everything
Actually it did.
L
As for the Fourth Amendment, Courts have consistently established that there is a foreign intelligence exception to the warrant requirement of the Fourth Amendment. The Terrorist Surveillance Program falls under that exception.
Here's what the FISA Court said in 2002 in the case of In Re: Sealed Case, 310 F.2d 717, 742.
The Troung Court, as did all other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign itelligence information... we take for granted that the President does have that authority
Agreed about disagreeing.
9-11 was surely an act of war but Congress did not respond with a genuine declaration of war. That would have entailed “declaring war” on the Taliban, or Al Queda, or Afghanistan. And the end (that is, the objective) of that war would be clearly defined if not necessarily forecast - the destruction or surrender of the named enemies. But who is Terror? Where does he live? How do you defeat him? How do you know when you have defeated him? Who knows? So now the government uses this “war” to claim vast new powers not granted to it by the Constitution, but because the “war” is undefined and therefore unwinnable the government will likely exercise those ill-begoten powers in perpetuity.
Regarding Amendment IV, one big philosophical divide here - correct me if you disagree - is that you more or less accept the “living Constitution” argument famously stated by Chief Justice Hughes in these terms: “the Constitution is what the judges say it is.” Otherwise, why point to court decisions that have no independent textural basis in the Constitution, indeed, that directly contradict the language therein? I, however, believe that the Constitution is what IT says it is.
Someone in an earlier post mentioned “historical perspective” - one of the dominant themes of 20th century American political history has been the federal invasion of individual liberties and the obliteration of the separation of powers as aided, abetted, and often spearheaded by the judiciary.
The decisions you cite may well make warrantless searches “legal;” they cannot make them “constitutional” because the courts lack legitimate authority to in effect amend the Constitution by fiat - or as someone else here said earlier, to “make it up as they go along.” But they do it anyway.
Welcome to post-constitutional America. Sucks to be us...
No, I don’t believe in the “living” constitution philosophy.
I sat through three years of law school listening to professors spewing out garbage about the Constitution being a “living, breathing, evolving” document.
I’m an originalist, and my opinion of the constitutionality of the Terrorist Surveillance Program is the same opinion as that of other originalists, such as Mark Levin.
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