Authority for "Wiretapping"

poncho · Feb 5, 2006

Senior Bush Administration officials have spent the past couple of weeks defending the National Security Agency’s program of spying on the private telephone calls of American citizens without seeking the constitutionally-required court warrant using talking points such as Bush uttered during his "State of the Union" address: "If there are people inside our country who are talking with al Qaeda, we want to know about it."

I’ve got no problem with tapping the calls of people who are al Qaeda, and Congress authorized the President to do this under the 1978 Foreign Intelligence Surveillance Act (FISA). All that Bush has to do is follow the same Constitution he swore an oath to "preserve, protect and defend" by seeking a warrant. There’s even an emergency provision in FISA that lets the President tap a phone call before getting a warrant, which is similar to the common law doctrine of "hot pursuit" with regard to warrants. If all the President has to do is get a warrant within 72 hours after conducting the phone tap, it doesn’t slow down the NSA one bit to get the warrant.

Unless, of course, the NSA request for a warrant would be denied by the courts. And that’s where it becomes interesting. The constitutional standard for issuing a search warrant is defined by the fourth amendment, which states:

"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 constitutional standard for issuing a warrant for a particular search involves "probable cause, supported by an oath or affirmation." If NSA searches don’t involve probable cause, then they would be denied a warrant. And if they are tapping American’s phone calls under this warrantless program, they are tapping the phones of people who, by definition, are probably not terrorists. Thus, the most appropriate name for the program is the "Probably Not a Terrorist Surveillance Program."

Note that the President no longer talks about warrants, though he told the American people many times that "Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, or to track his calls, or to search his property." The word "warrant" is no longer in the administration’s vocabulary when discussing the NSA program.

Bush claims the constitutional power to conduct warrantless searches flows from his "commander-in-chief" powers under Article Two of the U.S. constitution. But even if Article Two gave him that power, the Fourth Amendment (which amended the Constitution) has taken any claim of legitimacy from that power.

Interestingly, Bush has campaigned vigorously for a renewal of the Patriot Act, which his own website claims requires a warrant for a wiretap. If he already possesses the "constitutional power" to conduct warrantless wiretaps, as he claims, why would he need Congress to give him the power to obtain wiretaps through a warrant?

Again, I am reduced to concluding that Bush’s warrantless program would not meet the Constitutional threshold for obtaining a search warrant: "probable cause, supported by oath or affirmation." And I am led to conclude that he is tapping the phones of Americans, every one of whom are – by definition – probably law-abiding citizens.
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SOURCE

elijah_lives · Feb 5, 2006

Bush claims the constitutional power to conduct warrantless searches flows from his "commander-in-chief" powers under Article Two of the U.S. constitution. But even if Article Two gave him that power, the Fourth Amendment (which amended the Constitution) has taken any claim of legitimacy from that power.

The courts have and will continue to rule otherwise; our past, present, and future presidents have, do, and will continue to defend their inherent authority.

poncho · Feb 5, 2006

That's true the courts will undoubtedly uphold a POTUS dictatorship no matter what the constitution says.

I still question whether the POTUS is legally commander in chief in absence of a formal declaration of war.

fromtheright · Feb 5, 2006

poncho,

I still question whether the POTUS is legally commander in chief in absence of a formal declaration of war.

What in the text of the Constitution, or the history of its writing/ratification, makes you think otherwise?

OldRegular · Feb 5, 2006

Originally posted by fromtheright:
poncho,

I still question whether the POTUS is legally commander in chief in absence of a formal declaration of war.

What in the text of the Constitution, or the history of its writing/ratification, makes you think otherwise?
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Because he is a Bush Basher!

poncho · Feb 6, 2006

What in the text of the Constitution, or the history of its writing/ratification, makes you think otherwise?
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The words...declaration of war. That and it's hard for an American like myself, like it or not OR, I am an American and a conservative one at that, that we brave Americans would be so scared of a "perceived extrenal threat" like the one Kissenger, Brzezinski and the PNACers had been wishing so hard for before 911 in order to kick off their righteous "imperial mobilization" of America's military might (Brzezinski's own words) to give anyone let alone an eastcoast establishment liberal like OR's hero seemingly unlimited powers.

I would like to add that I don't have the answer to this question. But I'm pretty sure their are lawyers and judges out there who would quickly give the POTUS unlimited powers as we already know the depths of their corruption.

BTW I'm quite curious OR, what flavor are Dubya's boots anyway? He owns a ranch ya know, with cows.

No horses though he's scared to death of horses. Git along little doughie, git along.

[ February 06, 2006, 06:29 AM: Message edited by: poncho ]

fromtheright · Feb 6, 2006

poncho,

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What in the text of the Constitution, or the history of its writing/ratification, makes you think otherwise?
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The words...declaration of war.
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But I don't believe those words are even in the same section as Commander in Chief. Declaration wording is in Article I under Congress's powers, CINC language under Article II's executive powers. I thought that perhaps since you were talking about Constitutional powers you might actually have a Constitutional argument to make.

BTW I'm quite curious OR, what flavor are Dubya's boots anyway? He owns a ranch ya know, with cows.

You know, come to think of it, the taste is quite pungent. But I've gotten used to it, licking them for so long.

Editing...

fromtheright · Feb 6, 2006

Well, I guess I'm not still editing since I could not get back to my message for some reason.

What I meant to add, poncho, is a response that I sent to someone whom I met with a few months ago who was trying to recruit me back into the John Birch Society. We got into a discussion/debate about this very power and whether it is contingent on a declaration of war. His arguments centered around (1) the words "the President shall be Commander in Chief" and (2) the militia being called into actual service.

The section reads, as you probably know:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
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I did some research after I got home and sent this response to him:

I don't read anything conditional into the language. The "when called into the actual Service of the United States" clearly, IMO, refers to the States' militias being called into U.S. service. The immediately following language has to do with getting opinions from his departments, and reprieves/pardons.

The Federal Convention's Committee of Detail notes don't include any conditional language, only that "He shall, by virtue of his office, be C in C (my abbreviation) of the land forces of U.S. and Admiral of their navy." and then "He shall be C in C of the army and navy of the United States, and of the militia of the several states."

Also, if my reading is too broad, it surely would have invited protests by those in the Convention who opposed the final product, yet George Mason made no mention of a problem with an "expansive" reading of that language in his final comments to the Convention, in which he listed his objections.

Luther Martin (of MD, one of the delegates to the Convention and later an anti-Federalist)'s objection to the language, in "Genuine Information" was only that the president should not command in person.

Alexander Hamilton, in Federalist 74, spoke only of the need to concentrate this power "in him alone", "in a single hand". In Federalist 69, his argument was simply: "The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, gall which, by the Constitution under consideration, would appertain to the legislature. The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States."

In the Va. ratifying convention, George Mason spoke against the President commanding the army in person.

James Iredell, another delegate, argued in the North Carolina convention, made the same argument as Hamilton above, but did confirm that the President did not have the power to declare war, and that Congress has the power to call out the state mililtias. A Mr. Miller, in that convention, argued that Congress should have the power to control "the motions of the army."

Neither St. George Tucker in neither his introduction, I believe it was, to the 1803 edition of Blackstone's Commentaries, nor his View of the Constitution of the United States, nor Joseph Story in his Commentaries on the Constitution found anything conditional in the Constitutional language.

Even that stalwart anti-Federalist, Patrick Henry, argued against Congress's power of calling forth the militia, not specifically the President's command of them.

As to "shall" anticipating a future, conditional power, the Articles of Confederation and the Constitution are both replete with using that word in describing the various powers and statements:

Art. I, Sect. 1: "The House of Representatives shall be composed..."

Art. I, Sect. 3: "The Vice President of the United States shall be President of the Senate..."

Art. I, Sect. 3: "The Senate shall have the sole power to try all impeachments."

Art. I, Sect. 5: "Each house shall keep a journal..."

Art. I, Sect. 7: "All bills for raising revenue shall originate in the house of representatives..."

Art. I, Sect. 8: "Congress shall have power..." (and then goes on to list the enumerated powers)

These are just a few from Article I. The same language is used throughout the rest of the Constitution.

My conclusion is that the CinC power is a present power and not conditional on anything else being done by Congress, except of course that Congress has the power to declare war. The President's command, though, is not made contingent on war being declared or on any other action by Congress.
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I hope this helps.

fromtheright · Feb 6, 2006

Daisy,

This is one of the problems that strict constructionists run into - sometimes rights conflict with one another.

Why is that specifically a problem for strict constructionists? If they conflict, they conflict, regardless of one's method of interpretation. It seems a more reliable method to search the Founders and history of the Constitution/relevant amendment to come up with a resolution. And such resolution would in any case be on firmer grounds by going back to such an originalist source than "whatever feels good" at the moment.

Dragoon68 · Feb 6, 2006

Originally posted by poncho:
From Lew Rockwell

... There’s even an emergency provision in FISA that lets the President tap a phone call before getting a warrant, which is similar to the common law doctrine of "hot pursuit" with regard to warrants. ...
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Warrants are not required to pursue enemies discussing plans to attack our nation. There are many differences in war fighting - detecting and thwarting the plans and actions of our enemies - verses civil law enforcement - apprehending and prosecuting violators of criminal law by due process.

The God given rights enumerated in our Constitution mean little if our enemies are permitted to use them to their own advantage. We owe our citizens and residents due process of law but we don't owe that to our enemies.

We do grant them humane treatment if they willingly give up the fight or are no longer able to continue it. Otherwise, they have no rights to privacy or to be secure in their person or place or even to due process of law in civil courts. In fact, they have ever reason to live in constant fear that they will be found and killed or captured.

We are fighting a war - we are not conducting an international "police action" as even this war is sometimes called.

Even so, a follow up warrant is not even required for "hot pursuit" cases by law enforcement. Even a criminal - even a violator of traffic laws - observed in the act of committing a crime has no right to require a warrant prior to their being detained, questioned, or arrested nor prior to search of their person and immediate possessions.

Why on earth would we want to grant such a right to enemies who threaten the security of our nation and would make use of modern instantaneous communications to help in planning and carrying out such attacks? That seems utterly stupid to me and something I believe our founders would find accordingly.
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OldRegular · Feb 6, 2006

I repeat the OP for those Bush Bashers who have either forgotten, not that they have short memories, or who can't answer the question.

"The Federal Government as established by the Constitution consists of three equal branches: the executive, the legislative, and the judiciary.

Many on this Forum have complained about the NSA listening to terrorist electronic transmissions. Can some of you people tell me where the Constitution gives Congress the authority to grant or deny the Executive the right to listen to these terrorist electronic transmissions?

OldRegular · Feb 6, 2006

From the Senate Judiciary Committee hearings today regarding the interceptions of terrorist commmunications it is obvious that two things were in play:

1. The Bush Hating democrats tried unsuccessfully to Bash Bush.

2. The Senate is obviously involved in a power struggle with the Executive.

It is obvious, as Attorney General Gonzales[sp] pointed out, that the President has the inherent Constitutional authority to intercept enemy communications. He does not need Congressional authority.

OldRegular · Feb 6, 2006

Perhaps someone can refresh my memory but I don't recall any Congressional hearings when Clinton illegally bugged the home of Aldrich Ames?

poncho · Feb 7, 2006

Can some of you people tell me where the Constitution gives Congress the authority to grant or deny the Executive the right to listen to these terrorist electronic transmissions?
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It doesn't to my knowledge. But then once again, the issue isn't about the ability to listen to terrorist electronic transmissions for which he can easily get permission to do 72 hours after the fact. The issue at hand is domestic spying! Does the constitution allow for that? Clearly the answer is no, he would need a search warrant there is such a thing as the fourth amendment, and the prerequisite for a search warrant in said amendment is probable cause. Did he or did he not have probable cause to listen in on domestic electronic transmissions? If he did indeed have probable cause (which btw even General Hayden does not have the power to erase from the amendment much as he might wish he did) there wouldn't be such an attempt at misdirection he'd just provide evidence or proof and be done with it.

The constitution was written to protect us from the government not to protect the POTUS from congress.

If I am wrong Or, please show me where?

elijah_lives · Feb 7, 2006

I am by no means a legal expert, but how, in the past, have the courts interpreted the word "search?" Is it a "physical" search, as implied by the words I have highlighted?

Forth Amendment of the US Constitution
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.

poncho · Feb 7, 2006

I believe that would be up left to the magistrate that would be petitioned to grant such a warrant EL.

Searches and Seizures Pursuant to Warrant Link

poncho · Feb 7, 2006

Particularity .--''The requirement that warrants shall particularily describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.'' 111 This requirement thus acts to limit the scope of the search, inasmuch as the executing officers should be limited to looking in places where the described object could be expected to be found. 112
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elijah_lives · Feb 7, 2006

That seems to describe tangible "persons, places, or things", as opposed to something intangible, like non-written communications.

poncho · Feb 7, 2006

Information is a thing isn't it? It can be bought as in a book or college course, it can be stored as in ones mind or a pc hardrive or recorded and stored digitally over wire or through the air when it's passed from one to another, it can be passed on by speech electronics wires/signal and the written word. That makes it a thing that can be possesed by one and seized by another. Right?

elijah_lives · Feb 7, 2006

A hard drive is certainly a thing, as is a book. I'm specifically addressing non-written communications. How, for example, can one seize a mind?

Authority for "Wiretapping"

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