NSA Talking Points from Wingnutsville

It's only been a few days since the President started his pro-Domestic Spying promotional campaign and already the talking points are swirling about the web in support of the program. The basic argument -- It's Always Been This Way.

I stumbled onto this via a blog called Obviously Right and a post called Leftist Ignorance Strikes Again!, prompted quite bizarrely by statements made on Fox News Watch in support of the today's New York Times Editoral on the NSA and Bush Administration Lies.

During the Revolutionary War, Ben Franklin, under orders from General Washington, monitored every piece of mail from the colonies. Every piece.

Ok, it's it beyond obvious that the revolutionary war took place before the Constitution even existed and that the arguement that the President now has powers based on what happened then makes little sense when there was no such thing as an American President at the time? You might as well make an arguement based on spying commited by Napoleon, it would be just about as relevant.

In the Civil War, President Lincoln wiretapped telegraph communications, imprisoned a U.S. Congressman without bail or trial, closed hundreds of anti-War newspapers and summarily executed- without trial- hundreds of Confederate spies.

To go step further, President Lincoln suspended habeas corpus. The problem which was well pointed out by Josh Marshall is that the Article I exception which allows for temporary suspension is a power which is granted to the Congress, not the President. And further, this Presidential suspension was eventually found to be illegal and unconstitutional.

Justice Taney concluded:

The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department.

So yes, President Lincoln did attempt to utilize broad executive powers, but that doesn't mean that his attempts were in fact, lawful. They weren't.

In WWI, President Wilson had all cable communications with Europe intercepted.

In WWII, FDR spied on every single bit of electronic communications from the U.S. to other countries Every one.

FDR apparently did far more than that.

As political scientist Allen Weinstein pointed out in a refreshing article in the Washington Post, the recently discovered fact that Roosevelt secretly bugged the Oval Office and discussed with aides the possibility of using "dirty tricks" on Wendell Willkie in the 1940 campaign should be seen in a wider context: the use of secret agents and wiretapping to keep track of and harass his political opponents. Roosevelt, for instance, had a wiretap as well as an informer planted in the offices of the great anti-interventionist paper, the Washington Times-Herald. Other critics of Roosevelt’s war policy were similarly bugged; and J. Edgar Hoover was given instructions to monitor the affair going on between young John F. Kennedy and Inga Arvad, a young reporter on the Times-Herald. In short, many of the excesses we associate with the subsequent baddies in the Oval Office have their real origin in the "great" FDR.

These events may have occured as asserted by AG Gonzales, but that doesn't neccesarily mean that they were legal or would have reasonably withstood a challenge in court. (The rampant and clearly politically motivated surveillance projects by Hoover was a key impetous to the creation of the FISA law) By keeping these program secret, these Administrations were able to avoid such a challenge - which is precisely why the use of this kind of power under the cloak of secrecy is so dangerous.

Subsequent to these events President Truman attempted to exert similar power during the Korean War and seize control of the nations steel mills in order to prevent a shortage of vital materials. His action was found completely unconstitutional by the Supreme Court in the 1952 Youngstown v Sawyer decision. Logic dictates that this results of this decision supercede the Constitutionality of the secret actions of prior Administrations.

President Clinton broke into people's houses without a warrant, to investigate a spy ring.

This has already been heavily discussed, but the point is that the 1978 FISA law did not cover physical searches at the time and following this event the Clinton Administration took steps to change to change the law so that these searches would be included within FISA. At any rate, electronic and telephonic searches - which is the subject at hand - are absolute included within FISA and that law is current the exclusive controlling authority on the issue.

The Bush Administration can make claims that this President or that President has previous done the same thing (some have and some haven't) -- but so far, they haven't shown that any of them have been able to succesfully survive a true Constitutional Challenge on the issue. Trying to use one illegal act by one President to justify another illegal by another President simply doesn't fly.

Lastly in the most recent test of Article II powers, President Bush was defeated on the issue of whether those powers could be executed without Judicial Review in Hamdi v Rumsfeld. The Supremes found in Hamdi that.

We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation ’s citizens. Youngstown Sheet &Tube ,343 U.S.,at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict,it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v.United States, 488 U.S.361,380 (1989)(it was “the central judgment of the Framers of the Constitution that,within our political scheme,the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty ”);Home Building &Loan Assn.v.Blaisdell,290 U.S.398,426 (1934)(The war power “is a power to wage war successfully,and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation.But even the war power does not remove constitutional limitations safeguarding essential liberties ”).Likewise,we have made clear that,unless Congress acts to suspend it,the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance,serving as an important judicial check on the Executive ’s discretion in the realm of detentions.

Transferring the rules established by Hamdi to the NSA situation would clearly indicate that probable cause, judicial review. and a warrant are still required before subjecting American citizens to the same treatment as foreign terrorist targets.

Sorry guys, you lose this round.

Vyan