Tuesday, December 20, 2005
It's the Constitution, Stupid
from AmericaBlog:
by Rob in Baltimore - 12/20/2005 12:44:00 PM
The more rational voices in spy discussion (hint hint media, this is your job) might ask a simple question. If this spying is really all about terrorism then isn't it the President's constitutional responsibility to go to Congress and ask that laws - like FISA - be changed to protect America? (Wasn't that where the Patriot Act came from?)
From my perspective, the reason he didn't ask for laws to be changed is quite simple. It's because what they are doing isn't illegal (i.e. it breaks a law), it's unconstitutional. To bring this program into compliance with U.S. law, he would have to change the Constitution.
Funny, it's going to be strict construction that brings this Presidency to an early end. Prohibition on illegal search and seizure is a very clear and basic part of the Constitution (as opposed to the more attenuated logic of the Second Amendment):
If the NSA tapped the communications of all Americans with overseas contact and simply scanned it all for certain keywords, then this President by his own admission has violated the constitutional rights of what could be millions of Americans.
Here's a question that pundits could ramble on about for a while: What is the punishment of a President when he breaks the Constitution?
Setting aside the constitutional question for a moment, it seems fairly clear the President personally violated FISA. Unlike the constitutional breach, the punishment of the President under FISA is clear:
Democrats - and all rational Americans - have a right to be angry. Abuse of power and violations of the Constitution don't get much clearer than this. The President talks a lot about amending the Constitution for things like gay marriage, but he can't ask for laws that protect Americans from terrorism? I'm not buying it.
by Rob in Baltimore - 12/20/2005 12:44:00 PM
The more rational voices in spy discussion (hint hint media, this is your job) might ask a simple question. If this spying is really all about terrorism then isn't it the President's constitutional responsibility to go to Congress and ask that laws - like FISA - be changed to protect America? (Wasn't that where the Patriot Act came from?)
From my perspective, the reason he didn't ask for laws to be changed is quite simple. It's because what they are doing isn't illegal (i.e. it breaks a law), it's unconstitutional. To bring this program into compliance with U.S. law, he would have to change the Constitution.
Funny, it's going to be strict construction that brings this Presidency to an early end. Prohibition on illegal search and seizure is a very clear and basic part of the Constitution (as opposed to the more attenuated logic of the Second Amendment):
Holy moly, that's clarity! Our Founding Fathers left little room for ambiguity. Let's break it down for a moment: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.-- United States Constitution, Amendment IV
The right of the people to be secure in their persons, houses, papers, andIt is my constitutionally defined RIGHT to be secure in my home against not just illegal, but "unreasonable", search. Moreover, the government may not infringe my rights unless it meets a very clear and unambiguous standard of probable cause, with further instruction that what is to be searched must be identified ahead of time:
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 particularlyIt's a fundamental right with a clear framework providing what is protected (persons, houses, papers, and effects) and limit upon the government's ability to infringe on that right.
describing the place to be searched, and the persons or things to be seized.
If the NSA tapped the communications of all Americans with overseas contact and simply scanned it all for certain keywords, then this President by his own admission has violated the constitutional rights of what could be millions of Americans.
Here's a question that pundits could ramble on about for a while: What is the punishment of a President when he breaks the Constitution?
Setting aside the constitutional question for a moment, it seems fairly clear the President personally violated FISA. Unlike the constitutional breach, the punishment of the President under FISA is clear:
�§ 1809. Criminal sanctionsRelease date: 2005-03-17(a) Prohibited activities AThe President has already admitted that he personally approved the program without the oversight of a search warrant or a court order.
person is guilty of an offense if he intentionally-(1) engages in electronic
surveillance under color of law except as authorized by statute; or (2)
discloses or uses information obtained under color of law by electronic
surveillance, knowing or having reason to know that the information was obtained
through electronic surveillance not authorized by statute. (b) Defense It is a
defense to a prosecution under subsection (a) of this section that the defendant
was a law enforcement or investigative officer engaged in the course of his
official duties and the electronic surveillance was authorized by and conducted
pursuant to a search warrant or court order of a court of competent
jurisdiction.(c) Penalties An offense described in this section is punishable by
a fine of not more than $10,000 or imprisonment for not more than five years, or
both.(d) Federal jurisdiction There is Federal jurisdiction over an offense
under this section if the person committing the offense was an officer or
employee of the United States at the time the offense was committed.
Democrats - and all rational Americans - have a right to be angry. Abuse of power and violations of the Constitution don't get much clearer than this. The President talks a lot about amending the Constitution for things like gay marriage, but he can't ask for laws that protect Americans from terrorism? I'm not buying it.
# posted by David @ Tuesday, December 20, 2005 
