Posted on 01/25/2014 8:04:59 AM PST by madison10
Can constitutional powers be misused? You bet.
Do we want a warrant and hearing required for every firefight in Afghanistan? I thought most freepers believed the ROIs there are too strict at the present time.
My point, to the extent I have one, is that not every potential misuse of government power can be prevented by requiring a court hearing. In fact, I’d contend the over-legalization of American society is a huge problem.
Who even implied that?
Seriously, that's just stupid.
Can constitutional powers be misused? You bet.
And so can contra-constitutional powers — actually it can be harder to fight extra-constitutional powers, precisely because they're outside the confines of the Constitution… and oft they are legally justified on precedent, elevating precedent above the Constitution.
Who would give that order? Navy picks up someone that is not an enemy combatant? Have you heard of the Term Posse Commitatus?
Coasties have to be ordered to do so. But instead Obama decides to frag you with a drone.
You claim the POTUS doesn't have the Constitutional Authority to do so. Show me where it sez so.
It's implied in any claim that American citizens cannot be killed by US armed forces overseas.
For this "right" to be implemented, fairly obviously a hearing must be held to determine citizenship status before a soldier returns fire.
If US citizens aren't to be targeted, how do you know whether a possible target is a citizen without such a hearing?
BTW, the above is an example of trying to carry an argument to its logical conclusion to demonstrate its flaws. However, I see no reason why those planning and launching attacks on us should be treated differently based on citizenship status. If we catch em, we can try them for treason in addition to any other crimes, but that's about the sole distinction I can see.
I agree with you about extra-constitutional powers being dangerous.
In 1901 the Supremes ruled that the Constitution does not always necessarily follow the flag, in Downes v. Bidwell, even when the government is in control of territory. How much less does our Constitution apply in foreign countries?
You claim the POTUS doesn't have the Constitutional Authority to do so. Show me where it sez so.
I said the Constitution grants him no such power. I did not say it prohibits him from doing so.
Oh OK then so it has no bearing on the example.
Explain why Obama can do it then. Why can't he frag you and your sailboat?
You say the Constitution does not extend beyond the borders. So then if we hold to your interpretation he can do it and go have lunch and that is the end of it even though the joint chiefs are screaming that he committed a crime.
I think the hysteria over drones is a bit silly.
Legally, a drone is just a really, really long-distance sniper.
If it is legal for a target to be taken out via an on-site sniper, then it’s legal to use a drone to do the same. The person pulling the trigger or authorizing firing is the person legally responsible, whether he/she is on the ground in Yemen or in his bedroom in Tampa.
If the use of a sniper is not legal, then neither is the use of a drone.
It is, IMO, a non-issue. The technology changes nothing legally. Or morally, for that matter.
The Constitution does not contain a lengthy list of what the President is not allowed to do, though it does contain such a list for the Congress. (Which is mostly ignored.)
The President is authorized to command US military forces and to enforce the laws of the United States. When he steps beyond those bounds, he has exceeded his constitutional authority.
Is there any practical means of enforcing restrictions on him? Not much.
But I doubt requiring court hearings to authorize drone attacks or covert action is a practical way of solving the problem.
What is your solution to what you see as the problem of the President launching drone attacks overseas? What is the check or balance on his power you think should be implemented?
I think you keep waffling and throwing straw man arguments because you can't answer the question.
So let us cut to the chase.
You have been accused of a capital crime Murder though it was an accident.
You flee on you sailboat and are in international waters. And just so we can move past the obvious next bit of deflection we will say that also Obama is in international waters on his very own sailboat he purchased BEFORE he entered public office. (Thus we remove Obama from the United States for this example) The joint chiefs have joined him and they get the word you are fleeing.
Obama knowing a trial would be an embarrassing affair because his wife was also involved in the deal with You and Nancy. He decides to have the Navy launch a drone to find you. But since you think drones somehow invalidate the example we will instead say the president wants to see a live fire exercise on the new stealth cruiser that is a few thousand yards away and he tells them the target is an old sailboat which is nearby and happens to be yours. They fire and your boat and you are obliterated because well drones take time and they make you uncomfortable for this example.
The orders come from the president who is not in the USA nor is the ship that fired Nor is the Joint Chiefs who relayed those orders directly from the President to the captain of the stealth ship.
Did the Constitution have any authority over any of those actions committed by the POTUS the Joint Chiefs or the Captain of the ship who fired on your boat at the time they were outside the borders of the USA?
Nobody claimed that US Armed forces cannot kill American citizens — you have obviously never been in the military.
If someone's shooting at you, what do you do? Shoot back!
You always have the right to defend yourself, your fellow soldiers, and allied forces.
Heck, even a jury-trial would find a soldier innocent for returning fire and killing the attacker.
But all of those are fundamentally different from the issues being discussed here: if the government can paint you as 'terrorist' and use that to deny such things as the 4th, 5th and 6th amendment requirements, then how long will it be before protesting the government will itself be punished by death? And they can do it in subtle ways, with the NSA's domestic-spying, the IRS's capricious rule-changes, the DEA/BATFE/FBI/ICE's willingness to conduct the state-sponsored terrorism (and likely easiest Treason case in 100 years) known as Fast & Furious.
The War on Terror will finish off the last vestiges of liberty and rule of law that the War on Drugs left behind.
Posse Comitatus is a useless feel good
law because the higher legal authority says this:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Was his action authorized by the Constitution? No.
Does the Constitution specifically prohibit such action? No, it does not. It also does not specifically prohibit the President from getting a BJ in the Oval Office.
Does the Constitution provide for a specific check or balance that might prevent a President from doing such a thing? Yes, it’s called impeachment and removal from office. IMO such action would be murder, and constitute a “high crime and misdemeanor” that would justify impeachment, removal from office, prosecution, conviction and imprisonment.
Would this President, or any other, probably get away with it? Yes. As powerful men have always gotten away with crimes others go up the river for.
Do I approve of that? No, but I also see no practical cure. I certainly think additional intrusion of the legal system into warmaking is a really, really bad idea.
What mechanism do you think would be effective at preventing a president of the US from doing such a thing? Without creating worse problems?
I have tried to answer your questions as clearly as possible, even though they’re well afield from whether 4A warrant requirements apply to customs searches.
How can he be impeached as prescribed in the Constitution if he is not inside the United States?
You claim the Constitution does not extend past the borders.
Well, no it’s not.
That clause is in Article 1, which authorizes Congress to make laws “for calling forth the Militia to execute the Laws of the Union.”
One of the laws by which this is authorized and restricted is at the present time the Posse Comitatus Act.
Congress could of course repeal this law, but as long as it remains in effect the President is legally bound by its restrictions.
There are no restrictions on the power of impeachment. The House can impeach any federal officer or judge whenever it sees fit. No judicial review.
The Senate can then impeach and remove from office any officer or judge that it sees fit, as long as it can pull together a 2/3 majority.
The Constitution in full does not apply outside the United States. This does not mean that none of it or the laws authorized by it apply. Obviously they do. Equally obviously, not all do, or why do we bother to maintain a lockup in Gitmo? It's because the full panoply of constitutional rights aren't in effect there.
All I initially said was that customs searches do not and never have required warrants under 4A.
So If I read you right sometimes the Constitution applies outside the United States and sometimes it doesn't.
OK then who decides such or where does it say so in the Constitution?
I believe there is extensive federal case law on this matter.
Do you think suspected terrorists being detained in Gitmo are being denied their constitutional rights? Should they be charged and tried or released? They would if held inside the boundaries of the US.
I suspect we are talking past each other to some extent.
Are they citizens of the United States of America? If so YES!
If not and their acts were committed inside the USA as foreign invaders or outside our borders then they can go f*** themselves as far as I am concerned. They have no rights under the Constitution The same as an invading foreign army would have no such rights.
And no we are not talking past each other. You have made a claim that just because no searches conducted by customs officials without a warrant has ever been covered under the Constitution that such makes it okiedokie.
Any Constitutional Scholar would laugh at such a prospect.
Just because something has not been successfully challenged does not make it Constitutional. And claiming parts of the Constitution do not extend to citizens because they are not within the the Borders of our nation is as wrong as it gets. The Constitution are laws concerning the Government of the United States the Bill of Rights are limits on the power of the government over the citizens and those do not have a limited Jurisdiction.
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