I don't get this at TPM: Bush's spying might be constitutional

[quaoar]

Joshua Michah Marshall posted this yesterday. The part I don't get, because he doesn't go into it, is why he thinks Bush's spying program might be constitutional. Because of Article II? I've read Article II. Doesn't say anything in there about unlimited wartime powers. The Article II argument is bullshit.

http://www.talkingpointsmemo.com/archives/007619.php

Alberto Gonzales says that the president's warrantless wiretapping program is constitutional, necessary and legal.

I can see where it may be constitutional, though that seems debateable. It might conceiveably also be 'necessary', though that's a malleable term and it's a difficult one to judge as long as the president won't allow any oversight of what he's doing. But it does seem to be clearly illegal. There simply does not appear to be any real question about that. The FISA law appears to speak directly to the facts at hand.

[HereSince1628]

1. Marshall is leaving him room under Article 2 clearly the 4th Amendment

would put such powers in conflict.

I think Marshal is trying to emphasize the the point of illegality of not using FISC.

[quaoar]

2. I really don't see in Article II

how you get the authority to suspend laws during wartime.

[HereSince1628]

5. I'm not trying to make that argument and I am not going to speak for JM

However, if you went to TPM and read the beginning of the paragraph, JM is admitting to the possibility constitutional authority.

The President's powers and responsibilities are outlined in Article 2. That's the only place these powers could possible reside in the Constitution, so any claim being made for constitutional power of the president to conduct warrantless spying must lie there. Personally I don't see it. Even under the notion proferred by GOnzales that responsibility implies all the power to meet the responsibility.

[dubya_dubya_III]

17. Article 1 Section 8 P 11

The Presidency is a strange beast, in the original form a "president" other than by his legislative semi-veto, appointment powers and responsibility to protect, speak up for and defend the Constitution as it is, in military matters he was strictly the Top Grunt (executor) of Congress.

Presidents had no added enumerated powers, save to stave off invasion or insurrection, and none others of any sort existed until foreign entanglements created and established such 'instant crisis power'. The obligations of Treaties entered into by fools in Congress engineered and imposed a massive, cumulative erosion of Congressional war powers, eventually creating the need for an otherwise unconstitutional permanent, national standing land army, passing both the authority for it's command and these accumulated, eroded obligations to a new and ever expanding 'Military Treaty' Presidency.

The framers, largely due to the constraints of it's slow to build infrastructure only ever envisioned and provided for a 'permanent' Navy to defend the Union from invasion. A federal land army, the greatest fascist and false patriotic threat and danger to States, Republican Liberty and the Union itself, were only ever to be raised for specific cause and funded by Congress for a period never longer than 2 years. Only states had the right to have and maintain standing militias, which a Congress or President could call up to deal with foreign entanglements, insurrection, invasion, or a declared war.

More than any other factor however Truman's surrender to Churchill and Britain's phony 'democratic' Anglican Fascist Imperial tyranny at Potsdam forever destroyed the American Republic. The death of the American republic lies not in treaties, but in the unconstitutional creation of a Presidential 'finding-crime' unconstitutionally passed by congress in outright abdication of it's constitutional duties in 1948. Senator Lyndon Johnson's totally unconstitutional 1948 blank check of Marquee - note especially 413b a 5

Under strict and specific constitutional provision (Art.1 Sec.8 Par.11) the Letter of Marque (a criminal license to murder, rob, steal or in any way break international or foreign laws) could heretofore have only been issued by an open and full and specific individual debate and vote by the entire Congress, only then could a President employ civilian, non-military privateers or mercenaries to commit crimes outside of the US on behalf of the Republic.

The Anglican Tory Fascist tribal mafia warlord Elizabeth 1 had granted such Letters of Marque to Francis Drake and his mob to rape rob and pillage the Spanish Main. Please be aware that Fascist Tory Anglicanism is the 'religion' which is ashamed of it's own name in the United States - it poses as something called the Episcopal 'religion' in this country. America owes it's creation to the endless persecution, discrimination and theocratic electoral tyranny of this hateful established Imperial British Fascist cult.

Abraham Lincoln at the height of the Civil War had also obtained and issued such licenses to pirates employed to attack and destroy Confederate supply ships. And now we come to the Princeton "Skull and Bones" Mafia...

After WWII, conservative religious-socialist fascists much like their sole surviving leader, the racist, anti-semitic bigot Winston Churchill, in fact Mussolini's most outspoken pre war friend and admirer, were eager to resume the unfinished business of Hitler against the 'godless' Imperial Marxist Fascist tyranny of Stalins horrific dogmatic counter-religious dictatorship cult. They reasoned that they too could employ Hitlers classic Conservative Christian Fascist appeals to electorally establish a broad based de facto Neo-Christian religious fascist tyranny over 'democratic' America to subvert America's secular Constitution of Liberty and thus achieve the mercantile and military world domination that had evaded the Axis powers, by exploiting and growing America's vast military industrial infrastructure through unreasoning fear and secret noble elite disinformation and covert corruption.

While Herbert Hoover had abolished and 'forever disavowed' the contingency of criminal Letters of Marque under the treaties that had served to establish the League of Nations, forbidding America, by Congressional agreement, ever to enter into criminal licensing, that prohibition was and is still superseded locally by the entrenched powers accorded solely to the Congress by the Constitution.

The noble elites of America, perverted by MI6 financial and media subversion, included the Dulles, Brown Bros Harriman, Johnson McCarthy, Bushes (US Senator nearly convicted of aiding the Nazi's for his Silesian Steel treachery and CIA mafia sons) promptly set about the Episcopal Fascist Skull and Bones agenda of promoting Christian Fascism by decrying and persecuting "Godless Communism" (rather than the ruthless tyrant Stalin).


Most notably a Senator named Lyndon Johnson, who after the complete and total failure of the NDA of 1947 to establish a a fascist criminal American version of the fascist criminal NKVD and MI6 Mafias managed to write the legal fiction of a 'finding crime' into an obscure, unconstitutional 1948 amendment to US law creating the blank check of Marque CIA and NSA civilian Mafias under the command and control a Whitehouse Mafia Godfather.

The military heir to the pre WWII OSS, now known as the DIA is the only legitimately constitutional intelligence agency in America, the others are all totally criminal, illegal and unconstitutional. The secrecy surrounding the elite noble 'House of Lords' Gang of 8 Super Elite hand picked CIA Mafia controlled fascist Senators and Congressmen and the secrecy surrounding the CIA Mafia's private secret monopoly on disinformation, endless foreign and domestic criminal activities and it's horrific and frighful infiltration by military industrial religious fascists and it's own infiltration of all major US news media is an Orwellian tragedy of biblical proportions.

These radical Christian Fascists pretend 'alliance' with radical Jewish Fascists and the phony pretense of their bloodthirsty 'opposition' to radical Muslim Fascists extends no further than a theocratic pissing match over whose socialist religious fascist dogma will turn out to be true after their planned Second Holocaust, to be accomplished by the Israel-destroying Armageddon Battle they are maliciously and deliberately engineering, to bring back their imaginary Neo-Christ.


Sad to say it, you stupid, ignorant and criminally obscene heretical 'Christian' Fascist morons, but Christ was a Rabbi :-)

[tritsofme]

20. Mr. LaRouche?

Is that you?

[Pryderi]

3. Jerry Springer made a good point. The 4th amendment was put in AFTER

article II. Founding fathers would be making the point of stating individual liberties

[leveymg]

4. If it weren't for the FISA statute, which requires warrants, it might be

constitutional for the federal government to wiretap (non-criminal) espionage and terrorism suspects without seeking a court order. It depends upon how one wants to interpret the 4th Amendment's prohibition against "unreasonable searches and seizures". Unfortunately for BushCo, the 1978 FISA Act clarified that issue. In addition, FISA made it a federal crime for the NSA or any other agency to wiretap US persons without first obtaining either a criminal warrant or a warrant from the Foreign Intelligence Surveillance Court (FISC). The wording of the statute furthermore made FISA the sole authority under which non-criminal wiretaps could be conducted.

There is no other statutory authority that might justify what the Administration has been doing. Because there is a controlling statute, they can't legally cite abstract Article II powers as grounds for conducting unwarranted wiretaps. They've committed multiple felonies, and should be brought before a Grand Jury for indictment.

[kentuck]

6. Does that mean we need to take another look at Nixon's "crimes"?

Because that is why FISA was created. Nixon was spying on Americans. So, was Congress wrong to punish Nixon for his trespasses? Is it time to rehabilitate his legacy and image? If Josh Micah was right on this point, Nixon was only doing what was his "inherent" authority. Sorry Josh. You're wrong on this one.

[gratuitous]

7. It hinges on the bogus argument that FISA is unconstitutional

But the administration puts the cart before the horse. If FISA, enacted in 1978, is unconstitutional, then it's up to the administration to get such a ruling from a court of competent jurisdiction. Without such a ruling from the judiciary branch, the executive branch can't simply ignore acts by the legislative branch it doesn't like or doesn't feel like following based on its own determination.

Until FISA is ruled unconstitutional, it's the law of the land, and the executive is bound to follow the law until the judiciary rules on the law's constitutionality.

The argument is bogus.

[leveymg]

8. Who's argued that FISA is unconstitutional?

Haven't heard that one. Alberto didn't argue that, not while I was listening, anyway.

[gratuitous]

9. Well, if Gonzales is saying the "program" is legal, and I believe he is

Then he is saying that FISA isn't controlling legal authority, even though it's on the books. Now, the only reason a law on the books isn't to be followed is if it's unconstitutional. But it's not up to the administration to determine whether a law is to be followed or not; it's supposed to follow the law until a court of competent jurisdiction rules the law to no effect -- that is, unconstitutional.

[leveymg]

11. I believe what they're arguing is conflicting laws - under that

circumstance, the agency can make it's own interpretation until a court orders it to cease.

This is a fatuous argument, in this case, as there is no other law than FISA that is controlling.

[endarkenment]

10. Marshall doesn't appear to make a constitutional argument.

He just asserts that "it may be constitutional" without explaining his reasons. It seems that he is just saying that one can debate the constitutionality of warrantless monitoring of communications.

The only way warrantless wiretaps are constitutional is if we ignore standing decisions of the supreme court that hold wiretaps to be covered by the 4th amendment protections against unreasonable search and seizure. Given the makeup of the court, excluding wiretaps from 4th amendment protections might be a reality in the future, but in the present it is not. The assertion that article 2 gives the executive dictatorial powers is total nonsense. Neither argument is worthy of debate, both are deliberate deceptions.

[leveymg]

12. So is the argument that Habeas Corpus doesn't apply to US Citizens

but the Court bought it in the Hamdi decision. Gonzales cited that yesterday in arguing that the Administration could also do unwarranted wiretaps pursuant to the original post-9/11 Congressional resolution authorizing the use of force against al-Qaeda.

[endarkenment]

15. yeah I'm not exactly enthusiastic about the prospect of

the court not making some real bad rulings real soon.

[leveymg]

16. That's what BushCo is counting on.

It's now a race down the back stretch between the Plame-OSP-AIPAC prosecution and the cabal.

[kentuck]

13. If "unconstitutional", it is not up to the Executive Branch to decide....

It is up to the Judiciary.

[gratuitous]

14. Ding, ding, ding!

That's precisely the issue, and the Executive isn't the branch of government that decides what laws are constitutional or not, and which laws are to be followed. It's up to the Judicial branch to determine whether a law is constitutional, and until the courts rule otherwise, a law on the books is to be followed not ignored. If the Executive wants to argue that there's a conflict between laws, then it's up to the Executive to petition a court of competent jurisdiction to issue a declaratory ruling on which law the Executive should follow.

If Gonzales wants to frame this as a separation of powers struggle, he's done an end run around the systems and procedures that have been in place for more than two centuries to do it. I wonder if as a Texas judge he would have allowed the governor to do what he's trying to do?

[Capn Sunshine]

18. There's no formal Declaration of War

The whole idea of whether Article II applies is subject to interpretation, and shouldn't be just given over.

I don't view Iraq as a legal part of the War authorization by congress in the first place. Read the original resolution. It doesn't mention Iraq; it authorizes the President to go after the perpetrators of 9-11.

The subsequent resolution is referred to as a "war resoultion" but
Bush also must certify that action against Iraq would not hinder efforts to pursue the al Qaeda terrorist network that attacked New York and Washington. And it requires the administration to report to Congress on the progress of any war with Iraq every 60 days.

How's that part doing?

[dubya_dubya_III]

19. action against Iraq would not hinder efforts to pursue al Qaeda ??

It should have been worded "action against Iraq would not shatter, make impossible, totally inhibit and confound all, any and every possible future effort to pursue al Qaeda and provide it the further succor of an ever expanding pool of indignation to expand, entrench and promote even further Muslim Fascist martyrdom over the sad and sorry state of Liberty in divided Palestine"

[radio4progressives]

21. Personally, I never trusted "Liberal/Centrist" Gate Keeper TPM...

DLC mouthpiece.

[radio4progressives]

22. People be clear, the DLC want to keep domestic spying capability in place

just as much as the neo cons do and their minions. make no mistake about it.

otherwise, the D Senators would have stormed out of that hearing yesterday, the minute Gonzo wasn't being sworn in. otherwise, all sorts of other legal actions would have taken place by now.

believe me, they don't really care about domestic spying if they were in control. they're only worried about the extent that their emails and communiations have been violated.

I wish I were wrong - but THEY WILL HAVE TO PROVE IT RIGHT NOW before I'll believe otherwise.

No one has to wait mid term elections to do what needs to be done. it doesn't matter that they are in the minority, where there is a will, there are ways to deal with these issues.