The United States is headed for a serious Consititutional showdown over the NSA FISA wiretapping scandal. The White House is attempting to spin and twist it into all kinds of pretzel, from stating that only international calls were tapped (which has yet to be proved) to outright assertins that the President has the right to do what he wishes under the AUMF. (He does not.) But, in the end, it comes down to one question: Does the President have the authority to suspend 4th Amendment rights of American citizens? And, they know this.
It is an interesting issue to look at from both sides. I find that many on the left are working through the legal and technological information in order to know what really happened and understand whether the President has the power to suspend Consititional rights in a time of war.
Many on the right though are simply parroting the talking points and dutifully linking to video and text of the Presdients speeches or those by AG Gonzales. What else can they do? Attempting to actually engage this issue factually leads to one conclusion, one they don’t support.
As I said, the White House feels they do have the right. The law though, says another thing entirely. But, they are gearing up for that fight, and the fight for the public perception on this issue.
I have now read the entire justice department document defending the NSA warrantless wiretaps.It is a longer version of what the administration has been saying all along. It admits that the wiretaps were not authorized under FISA unless the AUMF is considered authorization to bypass FISA. That argument has already been hacked to death. It is an exceedingly weak argument. To re-address this argument briefly, the document states that the AUMF authorized the president to ignore FISA because of the “President’s… long-recognized power to engage in communications intelligence targeted at the enemy.” These warrantless wiretaps were of US citizens within the United States, not the “enemy.” Is there any due process or oversight involved before US citizens can be declared an enemy of the state? The president says no, the decision is his and his alone. That seems to jar with the Bill of Rights.
The document also states that FISA is a restriction “placed on national security operations during times of peace.” As mentioned in other posts, FISA is part of Title 50 of the US Code, which is entitled “War and National Security.” The president is claiming that laws specifically written for “War and National Security” are laws only relevant in times of peace.
The other argument is the “inherent authority” as commander-in-chief argument. That is even weaker. Commander in Chief is a military title, not a civilian one. It merely means that generals are subordinate to the president – not that Congress is, and most definitely not that civilians are subordinate. Generals can’t order civilians about and damn sure can’t ignore the law. Neither can a “commander in chief.” The president is “commander in chief” only for the military. He is not your commander in chief unless you are on active duty.
What is appalling is the length the administration goes to in order to make these exceedingly weak arguments. The entire document is basically a long justification for the president’s power to collect foreign intelligence. The problem with that argument is that it is not disputed, not by anybody. Yes, the president DOES have the authority to spy on our enemies. His powers over foreign policy and foreign intelligence collection are great. The problem is with DOMESTIC intelligence collection. The problem is not with wiretapping Al Queda, it is wiretapping IN THE UNITED STATES, ON US CITIZENS, WITHOUT A WARRANT. This is not about foreign intelligence, it is about our government’s actions with respect to US citizens. It is about US.
The document does not even address the FISA restrictions on wiretapping of “US Persons” and constantly repeats that the wiretaps were “international” and that only terrorists and those suspected of terrorism were targeted. Of course this ignores the 4th Amendment. For those who aren’t sure if this is a violation of the 4th Amendment, please recall that it was demanded by the People before they would agree to adopting the Constitution, and that our nation had just fought a war against a government that did exactly what the president is claiming he can do – spy on us without a warrant. If the Founding Fathers found the searches and seizures by British soldiers, in wartime, when our territory was a battlefield, so objectionable that they would demand their own government be prevented from doing the same things without a warrant, then why does the President think he can do so merely because we are at war?
The 4th Amendment was not written merely to control law enforcement officers. When it was written there were no organized police forces in existence. In addition, the Bill of Rights was not considered to apply to the states at the time, but only to limit the powers of the federal government. The federal government at the time didn’t have any police forces or even any law enforcement responsibilities. Those duties were considered to be the exclusive province of the states. No, the 4th Amendment was considered to apply to soldiers conducting searches of suspected enemies of the state – because who else would conduct those searches in 1789 or 1791? There was no FBI, there was no Justice Department, there was no police force anywhere at all. If the federal government wanted to conduct a search of anybody in 1791 it would order soldiers or sailors to do it. The president now claims that it does not apply to searches of US citizens inside the United States because we are at war and intelligence collection is part of the nature of military force. The document presents the 4th Amendment as only a law-enforcement restriction applying in the “criminal context.” That goes against the plain language of the 4th Amendment, its history, and common sense.
That is the first half. Read it all.
