Saturday, December 31, 2005
And the debate goes on
And the debate goes on among the confused and with
those in the know. 850+ deep thread here
Here is a reply I gave to one spinning mirrors type this
week:
It's a good thing OJ didn't have you as a lawyer.
In cases of international intelligence foreign relations, and conduct of war, the coequal constitutional powers of the executive are not necessarily subject to laws written by congress. The president, as commander in chief, has full authority to intern whole groups of people to camps, nationalize the entire steel industry, drop bombs on people, even declare martial law if necessary. If you look at the constitution-
Article II makes the President Commander in Chief of the armed forces. As such he is preeminent in foreign policy, and especially in military affairs. This was no accident; as Alexander Hamilton wrote in Federalist No. 74, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to "employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy."
As for your Fourth Amendment argument that: 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.
The key here is unreasonable. One of the many situations where warrantless searches have been approved is when the government is seeking foreign intelligence information, such as information relating to potential terrorist threats. Next to the Constitution itself, of course, the highest authority is the United States Supreme Court. At least three Supreme Court cases have discussed this subject.
In 1967, the Court decided Katz v. United States, 389 U.S. 347. Katz involved the warrantless interception of a conversation held by a criminal defendant in a phone booth.
U Hamdi v. Rumsfeld, 542 U.S. 507 (2004) nited States v. United States District Court, 407 U.S. 297 (1972)
This specific question was first addressed by the Fifth Circuit in United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970). "we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest."
In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974) "prior judicial authorization was not required since the district court found that the surveillances of Ivanov were "conducted and maintained solely for the purpose of gathering foreign intelligence information."
Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977 "Foreign security wiretaps are a recognized exception to the general warrant requirement...."
1980, the Fourth Circuit decided United States v. Truong For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], "unduly frustrate" the President in carrying out his foreign affairs responsibilities. "
United States v. Duggan, 743 F.2d 59 (1984) "Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."
2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001 "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
And don't forget that the September 11 Authorization for the Use of Military Force reads: "use all necessary and appropriate force," covers intercepting communications, since intelligence gathering is just as much a "fundamental and accepted incident of war" as detaining enemy combatants.
all kudos go to John Hinderaker for his great work on this research. All the credit is his ----complete article is here --> http://powerlineblog.com/archives/012631.php
If common sense were common everyone would have it.
those in the know. 850+ deep thread here
Here is a reply I gave to one spinning mirrors type this
week:
It's a good thing OJ didn't have you as a lawyer.
In cases of international intelligence foreign relations, and conduct of war, the coequal constitutional powers of the executive are not necessarily subject to laws written by congress. The president, as commander in chief, has full authority to intern whole groups of people to camps, nationalize the entire steel industry, drop bombs on people, even declare martial law if necessary. If you look at the constitution-
Article II makes the President Commander in Chief of the armed forces. As such he is preeminent in foreign policy, and especially in military affairs. This was no accident; as Alexander Hamilton wrote in Federalist No. 74, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to "employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy."
As for your Fourth Amendment argument that: 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.
The key here is unreasonable. One of the many situations where warrantless searches have been approved is when the government is seeking foreign intelligence information, such as information relating to potential terrorist threats. Next to the Constitution itself, of course, the highest authority is the United States Supreme Court. At least three Supreme Court cases have discussed this subject.
In 1967, the Court decided Katz v. United States, 389 U.S. 347. Katz involved the warrantless interception of a conversation held by a criminal defendant in a phone booth.
U Hamdi v. Rumsfeld, 542 U.S. 507 (2004) nited States v. United States District Court, 407 U.S. 297 (1972)
This specific question was first addressed by the Fifth Circuit in United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970). "we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest."
In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974) "prior judicial authorization was not required since the district court found that the surveillances of Ivanov were "conducted and maintained solely for the purpose of gathering foreign intelligence information."
Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977 "Foreign security wiretaps are a recognized exception to the general warrant requirement...."
1980, the Fourth Circuit decided United States v. Truong For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], "unduly frustrate" the President in carrying out his foreign affairs responsibilities. "
United States v. Duggan, 743 F.2d 59 (1984) "Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."
2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001 "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
And don't forget that the September 11 Authorization for the Use of Military Force reads: "use all necessary and appropriate force," covers intercepting communications, since intelligence gathering is just as much a "fundamental and accepted incident of war" as detaining enemy combatants.
all kudos go to John Hinderaker for his great work on this research. All the credit is his ----complete article is here --> http://powerlineblog.com/archives/012631.php
If common sense were common everyone would have it.
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