The Extent Of Presidential Powers
A lot of hay is being made regarding the president's executive order granting the NSA unprecedented power in surveillance regarding the war on terror. They would be unprecedented were this a time of peace. That, however, is not the case. This nation is at war. The president has virtually unlimited powers during this period to ensure the safety of US citizens, and the security of the nation, as a whole. Sen. Levin demanded to know where the president believes this power comes from. Let me help the senile old fool out a bit.
The executive power shall be vested in a President of the United States of America. --Article II, Section 1
AND
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 --Article II, Section 2
He is the supreme commander of US military forces, and during a time of war he is to protect this nation against all enemies--foreign or domestic. The executive power bestowed him by Article II, Section 1 is absolute. If he feels that there is a threat to the nation--external or internal--he is tasked with assuring that no harm come to the nation. If Congress is not in session, he may use an Executive Order. In this case, because of the sensitive nature of the NSA mandate, he authorized their work through Executive Order. Further, he is reinforced through the courts that he may take these steps. (Emphasis mine, below)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=407&invol=297
"We begin the inquiry by noting that the President of the United States has the fundamental duty, under Art. II, 1, of the Constitution, to "preserve, protect and defend the Constitution of the United States." Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means. In the discharge of this duty, the President - through the Attorney General - may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government. The use of such surveillance in internal security cases has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946."
Though the Government and respondents debate their seriousness and magnitude, threats and acts of sabotage against the Government exist in sufficient number to justify investigative powers with respect to them. The covertness and complexity of potential unlawful conduct [407 U.S. 297, 312] against the Government and the necessary dependency of many conspirators upon the telephone make electronic surveillance an effective investigatory instrument in certain circumstances. The marked acceleration in technological developments and sophistication in their use have resulted in new techniques for the planning, commission, and concealment of criminal activities. It would be contrary to the public interest for Government to deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its law-abiding citizens.
It has been said that "[t]he most basic function of any government is to provide for the security of the individual and of his property." Miranda v. Arizona, (1966) (WHITE, J., dissenting). And unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. As Chief Justice Hughes reminded us in Cox v. New Hampshire, (1941).
The Government argues that the special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with [407 U.S. 297, 319] respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions. It is said that this type of surveillance should not be subject to traditional warrant requirements which were established to govern investigation of criminal activity, not ongoing intelligence gathering. Brief for United States 15-16, 23-24; Reply Brief for United States 2-3.
The Government further insists that courts "as a practical matter would have neither the knowledge nor the techniques necessary to determine whether there was probable cause to believe that surveillance was necessary to protect national security." These security problems, the Government contends, involve "a large number of complex and subtle factors" beyond the competence of courts to evaluate. Reply Brief for United States 4.
As a final reason for exemption from a warrant requirement, the Government believes that disclosure to a magistrate of all or even a significant portion of the information involved in domestic security surveillances "would create serious potential dangers to the national security and to the lives of informants and agents. . . . Secrecy is the essential ingredient in intelligence gathering; requiring prior judicial authorization would create a greater `danger of leaks . . ., because in addition to the judge, you have the clerk, the stenographer and some other officer like a law assistant or bailiff who may be apprised of the nature' of the surveillance." Brief for United States 24-25.
I contend that is exactly the argument for why the president did what he did. In recent months, we have seen a number of leaks originating, apparently, through our intelligence agencies. Their leaking has gone directly to the press who feels an overwhelming duty to the nation to report on every little thing. These people have tossed away the underpinnings regarding secrecy in matters of national security. As a matter of fact, they have gone out of their way to report on such things. From CIA renditions to "secret" prisons, to the revelation of the NSA's surveillance, the media has turned a blind eye to the age old adage of "loose lips sink ships."
And, in my opinion, this is the mitigating circumstance in such situations. The press feels it is their job to report "news." Of recent, it is more conjecture and accusations than true "news." Should we have known about this? Perhaps, but at a much later date; such as the end of this war. To this day there are still clandestine operations conducted by the US government from World War II that aren't aware of. Why, now, does the press feel compelled to reveal this, knowing that it's revelation could jeopardize the entire operation, forcing our intelligence agencies to begin from square one. The president in his press conference this morning pointed to a valid example.
Osama bin Laden used to use a specific cell phone that we were tracking. When the press found out what sort it was, they revealed it, and our operations to track him. In response, bin Laden altered his tactics. He switched phones, and the intelligence agencies had to start all over. Bin Laden still has an outstanding warrant issued in the late '90s. The press is aware of this. Their action in that case could have been construed--had someone wished to charge them with it--as aiding and abetting an enemy of the United States. This qualifies as treason.
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. --USC 18, Chapter 115, Section 2381
We won't go on with that because this argument is about the nearly-unlimited power of the president during a time of war, and to what extent the law allows him to act. The case cited above is US v. US District Court, and deals strictly with domestic surveillance of US citizens. They specificly state this doesn't address the question of foreign powers and agents within the nation. If they are in the nation, and they aren't US citizens, then they have no Constitutional protections. Further, if they foreign agents in this nation to do us harm, that would be construed as sabotage, and the courts have addressed this issue decisively in Ex Parte Quirin. These people would open to such prosecution because of their mission in the United States. However, the NSA surveillance deals with our ability to locate them, track them, and disrupt them.
In addition, the intelligence gathered would lead us in new directions to new targets, possibly. The cells we have intercepted thus far, have been working independent of one another. However, as 11 Sept. showed us, multiple cells could coordinate a devestating attack on the nation. The extra powers granted to the NSA--right now by the president--should ensure that we never have another 11 Sept. again. Further, the government has admitted that it doesn't surveil the average citizen. They are concerned with people who are already communicating with the enemy abroad via phone. The president also pointed out that, at times during the period of time the operation has been ongoing, the necessity for immediate action is prominent. The government, through the FISA courts, can't wait for the courts to decide. If this were to turn from prevention of an attack into an investigation, the FISA courts could be consulted at that point. In this day and age, a matter of minutes could mean the difference between another attack, or the apprehension of these belligerents in the nation, and the prevention of such an act.
I know that for many, this is not acceptable. That the rights to privacy guaranteed under the Fourth Amendment can't be breached. I share the same feeling. I am a staunch originalist/textualist. I stand for the Constitution on every level of my life, and my political thinking. And I'm doing it now, as well. The president's powers during war are far-reaching. However, the man has an awesome responsibility to fulfill. This is not something to be taken lightly. Even the courts can see there are controlling factors in this argument. The press is one. Congress is another, as it has a solid reputation lately for being unable to keep silent on much of anything. The administration, in an effort to better protect this nation by locating the terrorists within her borders took broad steps to ensure that we could not only find them, but protect the average citizen's civil liberties.
Not a single violation of civil liberties has been filed in court in regard to the Patriot Act. The NSA or the executive branch has not recorded a single incident under this program. Of course, detractors will argue with "who watches the watchers?" It is called oversight, and it is called a "check." As the president pointed out, certain people in Congress are aware of this program. Ultimately, Congress controls the purse. To shut down the operation, had they had a serious problem with it, all they had to do was not spend money on it, or to limit the budget of the NSA. Further, had there been a problem with it, Congress would have begun investigating far sooner than this grand-standing now is portraying.
I find it amusing that everyone is outraged now, yet those people in Congress said nothing. Further, the Times story cited no one by name that revealed and confirmed this program to them. If this is to be a "public" trial for all to see, it would be interesting to know who these leakers are. After all, this is a national security secret. What was performed by these people was a crime, just as much as the people in CIA could be charged with a crime for leaking the rendition flights, the prisons, and the budget of the CIA to the nation.
This argument is elementary in it's logic, and those in Congress screaming about this have no right to. The president is charged with protecting the safety of this nation. There is no doubt that this program has done exactly that. Further, the media is continuing to lie about the nature of the program. It isn't targeting Ma and Pa Kettle from Waukegan, or Aunt Sue in Simi Valley; provided, of course, they aren't tied to terrorism. Unlikely as that might seem, we do have sympathizers in the nation to this cause. The point is that if they are a US citizen, the administration has stated it would go to the FISA court for a warrant. This tells me that, thus far, they aren't monitoring US citizens. They're monitoring people here that are foreign nationals. Again, these people have no Constitutional protections. The Fourteenth Amendment specifically states what makes a citizen a "citizen of the United States."
The preisdent is not only jusitified, is reinforced in law--The US Constitution, which is the highest law in the land that all other statues, laws, and regulations must adhere to and bow to--and it is well within his powers. It's time for those trying to savage this man for the work he's done to protect the US to keep quiet. The questions have been presented. The president has answered them. This discussion is at an end, as far as I'm concerned, and those that disagree need to brush up on their Con Law. At the very least, they might to try reading the Constitution.
Publius II
A lot of hay is being made regarding the president's executive order granting the NSA unprecedented power in surveillance regarding the war on terror. They would be unprecedented were this a time of peace. That, however, is not the case. This nation is at war. The president has virtually unlimited powers during this period to ensure the safety of US citizens, and the security of the nation, as a whole. Sen. Levin demanded to know where the president believes this power comes from. Let me help the senile old fool out a bit.
The executive power shall be vested in a President of the United States of America. --Article II, Section 1
AND
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 --Article II, Section 2
He is the supreme commander of US military forces, and during a time of war he is to protect this nation against all enemies--foreign or domestic. The executive power bestowed him by Article II, Section 1 is absolute. If he feels that there is a threat to the nation--external or internal--he is tasked with assuring that no harm come to the nation. If Congress is not in session, he may use an Executive Order. In this case, because of the sensitive nature of the NSA mandate, he authorized their work through Executive Order. Further, he is reinforced through the courts that he may take these steps. (Emphasis mine, below)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=407&invol=297
"We begin the inquiry by noting that the President of the United States has the fundamental duty, under Art. II, 1, of the Constitution, to "preserve, protect and defend the Constitution of the United States." Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means. In the discharge of this duty, the President - through the Attorney General - may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government. The use of such surveillance in internal security cases has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946."
Though the Government and respondents debate their seriousness and magnitude, threats and acts of sabotage against the Government exist in sufficient number to justify investigative powers with respect to them. The covertness and complexity of potential unlawful conduct [407 U.S. 297, 312] against the Government and the necessary dependency of many conspirators upon the telephone make electronic surveillance an effective investigatory instrument in certain circumstances. The marked acceleration in technological developments and sophistication in their use have resulted in new techniques for the planning, commission, and concealment of criminal activities. It would be contrary to the public interest for Government to deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its law-abiding citizens.
It has been said that "[t]he most basic function of any government is to provide for the security of the individual and of his property." Miranda v. Arizona, (1966) (WHITE, J., dissenting). And unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. As Chief Justice Hughes reminded us in Cox v. New Hampshire, (1941).
The Government argues that the special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with [407 U.S. 297, 319] respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions. It is said that this type of surveillance should not be subject to traditional warrant requirements which were established to govern investigation of criminal activity, not ongoing intelligence gathering. Brief for United States 15-16, 23-24; Reply Brief for United States 2-3.
The Government further insists that courts "as a practical matter would have neither the knowledge nor the techniques necessary to determine whether there was probable cause to believe that surveillance was necessary to protect national security." These security problems, the Government contends, involve "a large number of complex and subtle factors" beyond the competence of courts to evaluate. Reply Brief for United States 4.
As a final reason for exemption from a warrant requirement, the Government believes that disclosure to a magistrate of all or even a significant portion of the information involved in domestic security surveillances "would create serious potential dangers to the national security and to the lives of informants and agents. . . . Secrecy is the essential ingredient in intelligence gathering; requiring prior judicial authorization would create a greater `danger of leaks . . ., because in addition to the judge, you have the clerk, the stenographer and some other officer like a law assistant or bailiff who may be apprised of the nature' of the surveillance." Brief for United States 24-25.
I contend that is exactly the argument for why the president did what he did. In recent months, we have seen a number of leaks originating, apparently, through our intelligence agencies. Their leaking has gone directly to the press who feels an overwhelming duty to the nation to report on every little thing. These people have tossed away the underpinnings regarding secrecy in matters of national security. As a matter of fact, they have gone out of their way to report on such things. From CIA renditions to "secret" prisons, to the revelation of the NSA's surveillance, the media has turned a blind eye to the age old adage of "loose lips sink ships."
And, in my opinion, this is the mitigating circumstance in such situations. The press feels it is their job to report "news." Of recent, it is more conjecture and accusations than true "news." Should we have known about this? Perhaps, but at a much later date; such as the end of this war. To this day there are still clandestine operations conducted by the US government from World War II that aren't aware of. Why, now, does the press feel compelled to reveal this, knowing that it's revelation could jeopardize the entire operation, forcing our intelligence agencies to begin from square one. The president in his press conference this morning pointed to a valid example.
Osama bin Laden used to use a specific cell phone that we were tracking. When the press found out what sort it was, they revealed it, and our operations to track him. In response, bin Laden altered his tactics. He switched phones, and the intelligence agencies had to start all over. Bin Laden still has an outstanding warrant issued in the late '90s. The press is aware of this. Their action in that case could have been construed--had someone wished to charge them with it--as aiding and abetting an enemy of the United States. This qualifies as treason.
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. --USC 18, Chapter 115, Section 2381
We won't go on with that because this argument is about the nearly-unlimited power of the president during a time of war, and to what extent the law allows him to act. The case cited above is US v. US District Court, and deals strictly with domestic surveillance of US citizens. They specificly state this doesn't address the question of foreign powers and agents within the nation. If they are in the nation, and they aren't US citizens, then they have no Constitutional protections. Further, if they foreign agents in this nation to do us harm, that would be construed as sabotage, and the courts have addressed this issue decisively in Ex Parte Quirin. These people would open to such prosecution because of their mission in the United States. However, the NSA surveillance deals with our ability to locate them, track them, and disrupt them.
In addition, the intelligence gathered would lead us in new directions to new targets, possibly. The cells we have intercepted thus far, have been working independent of one another. However, as 11 Sept. showed us, multiple cells could coordinate a devestating attack on the nation. The extra powers granted to the NSA--right now by the president--should ensure that we never have another 11 Sept. again. Further, the government has admitted that it doesn't surveil the average citizen. They are concerned with people who are already communicating with the enemy abroad via phone. The president also pointed out that, at times during the period of time the operation has been ongoing, the necessity for immediate action is prominent. The government, through the FISA courts, can't wait for the courts to decide. If this were to turn from prevention of an attack into an investigation, the FISA courts could be consulted at that point. In this day and age, a matter of minutes could mean the difference between another attack, or the apprehension of these belligerents in the nation, and the prevention of such an act.
I know that for many, this is not acceptable. That the rights to privacy guaranteed under the Fourth Amendment can't be breached. I share the same feeling. I am a staunch originalist/textualist. I stand for the Constitution on every level of my life, and my political thinking. And I'm doing it now, as well. The president's powers during war are far-reaching. However, the man has an awesome responsibility to fulfill. This is not something to be taken lightly. Even the courts can see there are controlling factors in this argument. The press is one. Congress is another, as it has a solid reputation lately for being unable to keep silent on much of anything. The administration, in an effort to better protect this nation by locating the terrorists within her borders took broad steps to ensure that we could not only find them, but protect the average citizen's civil liberties.
Not a single violation of civil liberties has been filed in court in regard to the Patriot Act. The NSA or the executive branch has not recorded a single incident under this program. Of course, detractors will argue with "who watches the watchers?" It is called oversight, and it is called a "check." As the president pointed out, certain people in Congress are aware of this program. Ultimately, Congress controls the purse. To shut down the operation, had they had a serious problem with it, all they had to do was not spend money on it, or to limit the budget of the NSA. Further, had there been a problem with it, Congress would have begun investigating far sooner than this grand-standing now is portraying.
I find it amusing that everyone is outraged now, yet those people in Congress said nothing. Further, the Times story cited no one by name that revealed and confirmed this program to them. If this is to be a "public" trial for all to see, it would be interesting to know who these leakers are. After all, this is a national security secret. What was performed by these people was a crime, just as much as the people in CIA could be charged with a crime for leaking the rendition flights, the prisons, and the budget of the CIA to the nation.
This argument is elementary in it's logic, and those in Congress screaming about this have no right to. The president is charged with protecting the safety of this nation. There is no doubt that this program has done exactly that. Further, the media is continuing to lie about the nature of the program. It isn't targeting Ma and Pa Kettle from Waukegan, or Aunt Sue in Simi Valley; provided, of course, they aren't tied to terrorism. Unlikely as that might seem, we do have sympathizers in the nation to this cause. The point is that if they are a US citizen, the administration has stated it would go to the FISA court for a warrant. This tells me that, thus far, they aren't monitoring US citizens. They're monitoring people here that are foreign nationals. Again, these people have no Constitutional protections. The Fourteenth Amendment specifically states what makes a citizen a "citizen of the United States."
The preisdent is not only jusitified, is reinforced in law--The US Constitution, which is the highest law in the land that all other statues, laws, and regulations must adhere to and bow to--and it is well within his powers. It's time for those trying to savage this man for the work he's done to protect the US to keep quiet. The questions have been presented. The president has answered them. This discussion is at an end, as far as I'm concerned, and those that disagree need to brush up on their Con Law. At the very least, they might to try reading the Constitution.
Publius II
posted by Syd And Vaughn | 2:36 AM
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