Vyan begins by asserting- without proof- that President Bush has launched a pro-domestic spying promotional campaign. Vyan implies that this campaign has caused "wingnuts" to circulate and repeat talking points in support of this program.
I'm sorry, I didn't think I needed proof of the genuinely obvious. Since the NSA program was revealed by The New York Times, President Bush has stumped on the issue in Kentucy, released a not one, but two White Papers on the Program, and staged a Press Conference at the NSA. Not to mention the Press Conference by General Hayden and Alberto Gonzales. I'm calling that a Campaign, if you wish to call it puppet show - be my guest.
That the comment made by the President, Attorney General Gonzeles, General Hayden and the White Papers are being repeated in support of the program by pundits and "wingnuts" is also obvious.
Vyan, son, the issue at hand is this: does the Constitution allow the President to conduct intelligence operations against enemy agents, wherever they are located?
Here's the relevance, bubula. The Constitution does not enumerate the powers of the President in regards to his duties as Commander-in-Chief of the Army. The duties of this position, under our Constitution, are determined by what duties the C-in-C was believed to rightly hold at the time the Constitution was written.
Is that really so complicated?
No, it's perfectly simple - and wrong. What the Constitution does or does not allow currently is completely irrelevant in relation to General George Washington who wasn't President during the Revolutionary War, when there was no such thing as the U.S. Constitution.
What General George Washington did then has no bearing, legally or Constitutionally on what any President has ever done since that time.
Secondly there's a problem with your theory that the President's C-in-C powers are uninumerated and prescribed by the Constitution. Yes, the President under Article II it's states that "The President shall be Commander in Chief of the Army and Navy of the United States" - However, under Article I Section 8 Paragraph 14 it's gives the Congress the power "To make Rules for the Government and Regulation of the land and naval Forces;."
In short, bubula, the President's powers are effectively limited by the rules and regulations of the armed forces as written by Congress. This Constitutional principle is how Bob Dole was able to stop President Clinton from removing the ban on gays in the military, Congress controls the rules. It's also the reason that FISA is perfectly Constitutional.
Congress establishes the rules of engagement and the President is expected to work within those rules.
Just because something happened before the Constitution existed, doesn't make that event meaningless. After all, the Convention to draft the Constitution happened before the Constitution existed. Is the creation of the Constitution utterly unrelated to the Constitution?
To be fair, I follow what you're saying. The problem I have is that the Constitution did not follow directly from the Revolutionary War. Prior to the adoption of the Constitution, there were the "Articles of Confederation", which ultimately failed. The Constitution is a compromise, reached during the convention -- there was give and take. Yes, there was "Common Law" - however, the Constitution itself is not Common Law, it is different. Yes, there was the "Law of the Colonies", but the Constitution itself is not a mirror of those laws - it is different. If want to say there is grounding for your view of executive power within the Federalist Papers - where I think you'll find something quite different - be my guest. What you've done instead is simply parrot claims made by AG Gonzales.
Did you see what just happened? I listed a number of actions the President took. Vyan added a completely different one- one I didn't mention- said this newly introduced action was Unconstitutional and on the strength of that claimed that all of Lincoln's actions were Unconstitutional.
This is a dishonest debate tactic, known as the straw man argument. Vyan should be ashamed for stooping so low.
I picked an example of broad executive powers used by Lincoln which a) I could find data on and b) had been challenged in court. I tried to find information on the other claims, particular those that had face court challanges and either won or lost -- but this is what I found. Most referrences for "Lincoln wiretaps" led right back to comments made by AG Gonzales, or to the habeas corpus issue that I did bring up.
Just because a President, any President, exerts or uses a power and gets away with it without being challenged in court, doesn't mean that he actually has that power. Only that he used it, or tried to use it. Your defense of Lincoln's (alleged) actions has you in support of widespread violations of the first amendment (closing newspapers), violating due process and habeas corpus (arrests without trial) and summary execution. You truly believe this is what the framers intended? Those are that actions of a dictator, not a President.
Where exactly in the Constitution is it stated that the President has the power to summarily suspend the Bill of Rights during a War simply because he is Commander-in-Chief? He's always Command-in-Chief. The Constitution in fact, says nothing about granting the President any "special powers" during War time. The only special power it does grant regarding War, are powers granted to Congress to a) declare war and to b) temporarily suspend habeas corpus in an emergency.
But again, in fairness, if you have any legal opinions on any of the other actions you mentioned, I'm listening. I didn't find any, but I don't assume there aren't any.
And this Southern partisan racist who hated Lincoln personally is your sole and only reason you declare his actions invalid? Since when did you Leftists begin honoring Justice Taney?
Character assasination is not the way to win an argument.
Also - being black myself - I'm not exacly partial to the Dred Scot decision to put it mildly, but that doesn't mean each and every decision Taney made was equally biased. In this case, a simple reading of the Constitution shows that he was correct - the power to remove Habeas Corpus is contained within Article I (Congresional Powers) rather than Article II (Presidential Powers). I didn't just regurgitate Taney, I went and re-read the Constitution. You should try it some time. Nice read.
So Vyan is now claiming that Roosevelt (a Democrat) spying on his political opponents (Republicans), is exactly the same as President Bush (an American) spying on the insane murderers who want to kill Americans (Al Qaeda). His claim is now this: "Using the office of the President to spy on political opponents is bad, therefore it is Unconstitutional to spy on foreign enemies and their agents in wartime."
As an argument, this lacks both plausibility and coherence. As a policy principle, this is disastrous and insane.
Well, yes it is - especially since I didn't make that particular "staw man" arguement at all. You did.
I don't really care what Roosevelt's political stripe was, whether he has (D) or (R) behind his name isn't the issue - the issue is whether his actions were legal (and Constitutional) or not.
Roosevelt died during the War, so any possible legal challenges to these actions were clearly truncated.
My point isn't that it's wrong to spy on foreign enemies - of course we should do that [I've held a Security Clear on a Special Access (SAR) Program at a Security level similar to the NSA project, and been regularly briefed on Counter-espianage by the FBI in order to retain that clearance], I strongly support National Security efforts - the question is whether or not due process, probable cause, habeas corpus and the bill of rights can be summarily suspended or ignored by a President during a War, or for that matter ever. The Constitution is limited by the jurisdiction of the United States. Outside the U.S., the Constitution does not apply and the President has fairly unfettered power to conduct Foreign relations and to Command the army -- but inside the U.S., the rules change because, well, we have LAWS against it.
Conducting warrentless surveillance against your political enemies isn't "bad" because I say so -- it's a crime, and decidedly Unconstitutional.
What was it I said? Oh yeah: "[C]ompared to the actions of Presidents in past wars, [the NSA program] is quite mild."
Thanks, Vyan, for proving me right.
You're welcome. Because I didn't have any contention with the point that other President's have done worse, they have. Particularly Nixon. Staying on Message: The issue is whether those actions are Constitutional and legal.
Remember, folks, he is talking about the extensive list of Roosevelt's abuses of power, none of which include spying on the enemy during wartime.
Hold on sec, you said "In WWII, FDR spied on every single bit of electronic communications from the U.S. to other countries. Every one."
First off, I'm not even sure that's true and I'm giving you quite a bit of deference to presume for the sake of discussion that it was - but even if it is, it is clear that it's "spying on an enemy during wartime". The problem is that it's also a clear violation of the Fourth Amendment for those persons within the U.S. There's nothing in the Constitution that support this kind of Presidential power to summarily ignore the 4th, or any standing amendment which protects U.S. citizens and residents.
We can spy on anyone we want overseas, even allies - but on U.S. soil, you need a warrant.
(BTW I will agree that it's well documented that Roosevelt was eavesdropping on Japanese communications and that the communique to the Japanese embassy which announced the attack on Pearl Harbor was intercepted and decoded, but that was a message from Japan to the Japanese embassy, which is Not considered part of the U.S. - also, I know for a fact that while my clearance was active the FBI regularly monitored communications with the Russian Embassy in San Francisco - and since the call came from L.A. I'm now thinking that the wiretap may not have actually been legal.)
Can anyone imagine if any Conservative ever quoted Taney to support anything? My God, the Left would brand that Conservative as a pro-slavery racist and hang the man from a lamppost (or maybe burn him at the stake). Yet this arrogant Leftist feels free to honor Justice Taney, so long as it helps him attack President Bush.
I don't care to speculate on what other people might or might not do.
But you did quote him in order to help make your own arguement, and managed to obscure the fact that on the Lincoln case, he was right - Lincoln was wrong. You spent all this time and energy who you think Taney is, not what the decision said and whether it accurately reflects the constitution. Me thinks thou does protest to much.
Here's a test, was there ever an example of a President using these broad powers you claim they have - where they actually won in court?
He asserts that, since Hoover did something wrong, completely different actions authorized by President Bush are also wrong.
No, they were not completely different actions, Political surveillance by Roosevelt (against Wendel Wilkie) - and Political surveillance by Hoover were both wrong - because they were both violate the 4th Amendment.
Once again, Vyan tries the Jedi Mind Trick. He introduces a totally extraneous example- the President [Wilson] seizing steel mills in wartime- and on the basis of this claims that every previous Presidential action I cited is Unconstitutional.
Actually, I brought up Youngstown because the DOJ and AG Gonzales brought it up in their defense of the extra-FISA program. And since he's clearly the source of all these Washington/Lincoln/Roosevelt arguments I figured it was relevant.
Suffice it to say that seizing the property of Americans in wartime is not the exact same thing as spying on enemies in wartime.
No, it's not -- it just happens to address the exact same Constitutional amendment - the 4th.
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.
So my point, which obviously you missed - was that if the President can't perform an illegal seizure during wartime - he can't perform an illegal search either. Is that clear enough for you?
This is subtle nuance? "It is just as bad to take American's property as it is to spy on enemies who want to kill Americans!"
I never said the situations were "equally bad" only that they stem from the same principle - the right of a person to be secure in thier personal effects. Yes, there is a difference, but as to whether any court has found that violating the 4th by eavesdropping during War is "ok" remains to be seen (as far as I can tell) - but violating the 4th via seizures clearly isn't "ok".
Let's analyze this. I said the NSA Program was Constitutional. I point out that Clinton committed similar acts. Vyan says that Clinton's actions are okay, because there was no law against them.A minute ago you were making a big deal about how seizures are greatly different from searches - not your saying that physically searching your house is basically the same thing as listening to your phone call or email? Ok, whatever.
Since you claim that Clinton's actions were perfectly acceptable- and legal- this must mean they were Constitutional. And since Clinton's actions were Constitutional, so were Bush's.I didn't say his actions were perfectly acceptable - I have a problem with the warrantless search of Aldridge Ames home, they should have gotten a warrant if it took place within the U.S. (and I'm not sure that it did, but logically it should have been - I just haven't seen details on that) - the point I was addressing was whether it was legal. In this case, it was. FISA had a loophole at that time which allowed didn't address physical searches so it wasn't technically "illegal" - but it may not have been Constitutional for exactly the reasons I mention.
Clinton IMO did do the correct thing by closing the loophole and fixing the law after the fact.
Like I said, I don't automatically give anyone with "D" after their name a pass. I tend to be centrist, not neccesarily "leftist". I trust the truth, not ideology.
Congress cannot make an action of the President Unconstitutional merely by passing laws. In fact, in such cases it is the law itself that is Unconstitutional, because the law forbids him to act in a way that the Constitution allows.I have no arguement with any of that. Segregation and Jim Crow were clearly Unconstitional (14th Amendment), but not illegal for nearly 100 years until the Civil Rights Act was passed.
The president has the Constitutional power to monitor enemy communications during war, no matter where the enemy agents are.I agree with the first half of that statement, but not the second. The President does not have the right to violate or ignore the 4th Amendment on U.S. soil. Youngstown supports this.
If Congress passed a law banning this- which you have not established at all- then it is the law that is Unconstitutional, not the President's actions. Capische?
FISA bans it - well, to be specific, FISA requires that the President abide by the 4th Amendment on domestic surveillance. He can still do it, he just needs to establish probable cause and go to the FISA court within 72 hours. Foreign surveillance on foreign soil is pretty much wide open.
FISA has survived all court challenges for the last 27 years. I think we call all be pretty confident in it's constitutionality.
Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. The court wrote:
Ah yes, the Sealed Case - is a FISA case before the Secret FISA Court. Which means that the details of it are not available to public viewing unless the Administration chooses to share it. Not being to see the entire unredacted case make it rather difficult to comment on it -- but what I do wonder is this. If the FISA court determined that the President has inherent powers to conduct warrantless foreign surveillance - why do we still even HAVE a FISA Court? It sounds like they just invalidated themselves, so why not simply report that decision to Congress and have the court disbanded?
I suspect there's more to it, most likely, that there was an issue regarding the jurisidiction of the surveillance, and the court was settling that issue by establishing that the President had inherent powers to conduct foreign surveillance outside of the U.S. only. I admit, that's just a guess - but not much else makes sense.
Yet, the self-same court who would grant those warrants said that in cases like this, he doesn't have to. The FISC says the President is granted that power under the Constitution and hence the FISA law doesn't apply.
Let me ask you again, if the FISA Court established that FISA Law doesn't apply - why is there still a FISA court? Again I suspect they were saying that it didn't apply in that specific instance - but in order to fully understand the ramifications of that claim, we need more information about the circumstances.
Sorry, no sale on that one. Good try though - but you didn't show me anything I hadn't already noticed before. I'd even read the Powerline post previously. I didn't comment on it because there's not really enough there to comment on.
I feel the overwhelming need to quote Ace Ventura right now: "Yes. Yes. Oh, yeah. Can ya feel that, buddy? Huh? Huh? Huh?"
Damn, I'm good.
Self congratulate much?
Ok, all this History stuff is just fun and games, the real meat and potatoes is ahead - FISA and Bush. The current law of the land.
"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."
What powers? The electronic surveillance of enemies during wartime? No, something totally different. Once again, Vyan tries to throw out a red herring by claiming that two completely different things are exactly the same.
Well, gee the "electronic surveilance of enemies during wartime" isn't in the Constitution - so no, it's not that. It's a broad Article II question - one with AG Gonzales has repeatedly brought up himself. It's Hamdi
And it's interesting that the rest of post is more self-congragulations without even going into Hamdi, which you claim is an irrelant issue but AG Gonzales claims is central to the Administration argument that the NSA program is legal, meanwhile oddly enough FISA is also Constitutional according to the DOJ. Hmmm...
If you want to see where all your arguements that I'm pulilng a Jedi Mind Trick on you -- by daring to discuss the intersection between Presidential Powers under Article II and the 4th Amendment as all one single issue - completely fall apart, you need to read the statement from the Master Jedi himself - Alberto Gonzales.
Let me take you back to a case that the Supreme Court reviewed this past -- in 2004, the Hamdi decision. As you remember, in that case, Mr. Hamdi was a U.S. citizen who was contesting his detention by the United States government. What he said was that there is a statute, he said, that specifically prohibits the detention of American citizens without permission, an act by Congress -- and he's right, 18 USC 4001a requires that the United States government cannot detain an American citizen except by an act of Congress.
We took the position -- the United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word "detention." And the Supreme Court, a plurality written by Justice O'Connor agreed. She said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder -- the duration of the hostilities. So even though the authorization to use force did not mention the word, "detention," she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, "authorize the President to use all necessary and appropriate force."
For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance
So to review, you say that it's inappropriate to compare various Presidents excersizing Command-in-Chief powers while denying the 1st, 4th and 5th (due process) Amendment rights to U.S. citizens and pointing out that they were all wrong - including warrantless domestic surveillance - yet Attorney General Gonales has used the case of a physical detention of an American Citizen (Hamdi) on Foreign Soil (Afghanistan) to justify warrantless domestic surveillance.
See how he switched arguments there? You think what I was doing was an accident? An intellectual dishonesty? Nope, it's called irony.
Damn, I'm good.
But the kicker is this -- Gonzales mistated Hamdi. In that decision the Supreme Court did allow the detention and designation of Hamdi as a "Enemy Combatant" -- but when they said 'War is not a blank check" THEY REQUIRED JUDICIAL REVIEW of the case to verify the designation.
If under Hamdi (which is the most recent decision on the matter and currently controlling) you need judicial review to permanently detain a U.S. Citizen on foreign soil as an "Enemy Combatant" -- you certainly need Judicial Review to perform surveillance of U.S. Citizens and residents on international calls.
Damn, I'm good.
Vyan
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