Tuesday, December 27, 2005

Back To Basics: Constitution 101


The Democrats have reached a new low; Afraid not only of Republican majorities in the House and Senate, they now seek to dilute the authority of the Executive Branch, by denying the President powers needed to do his job. I am speaking of course, about the recent noise frumped up from the Left over surveillance of communications for purposes of foreign intelligence. The Left would have people believe that warrantless searches are illegal and so use that issue to attack the President. Examination of the actual facts not only proves the falsity of such claims, but demonstrates the shallow and deceitful character of the people who present such charges.

First, as to warrants. I call to the stand Andrew McCarthy, who presented a long list of court-sustained instances where a warrant is not required for a search, and certainly the fact that the intent of this surveillance is to monitor the conversations involving foreign nationals discussing plans to attack the United States meets this standard. And it should be understood as well, that since many of these calls are from non-citizens or to non-citizens, the question about the rights of American citizens is not really at issue.

Also, is it really necessary to remind people of the difference between collecting information for use in a criminal trial, and information used to detect and prevent a terrorist attacks? I’ve said it before, but it needs saying over and over again – we should be shooting terrorists, not reading them rights as if we wanted to avoid getting sued.

But back to the question of President Bush. If there’s anything since 9/11 that Americans ought to agree on, it’s that we must protect the nation from another horrific attack. There can be no doubt that our enemy in this case is one with no scruples against killing innocents, or who would hesitate for an instant to use any weapon which could harm the United States. The 9/11 Commission wanted a better job of “connecting the dots”, which is simply a euphemism for collecting and analyzing intelligence data. Since our enemies are not likely to broadcast their specific plans, that rather means we have to spy on them, their phone calls and their emails and any international communication. It’s obvious to most of us, that if we had been intercepting phone calls between the United States and, say, Afghanistan in late 2000 and early 2001, we might have caught the hijackers before they carried out their plans. And no, terrorists have no expectation of privacy, under any interpretation of the Constitution.

The U.S. Constitution, believe it or not, sets out rather clearly that there are three branches of the Federal Government, each with its own powers and character, all equal to each other. Article I discusses the character and powers of the Legislative Branch of the Federal Government. Article III discusses the character and powers of the Judicial Branch, and between them is Article II, which addresses the Executive Branch. Even schoolchildren are aware that the three branches are equal to each other, with none intended to take precedence or supremacy. Apparently liberals are “re-educated” to indoctrinate them into missing that fact.

As the Constitution makes clear, 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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices”. This is to say that on a matter of foreign intelligence, especially one which concerns possible military action, it is the President who has authority to act and use his judgment, rather than the Congress or any court, even the Supreme Court. Court reviews have supported this fact before, as John Schmidt observed:

the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power", which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power.

The Supreme Court has also upheld such Presidential authority, inherent in the office, as noted in UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972), citing “the Government's right to protect itself from unlawful subversion and attack” and specifically stating;

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.”

The distinction then, between the normative conditions of legal proceedings and criminal charges, measured against the imperatives of National Security and the collection of foreign intelligence information, is a crucial one.

Leftists often fall back on the Fourth Amendment, but a reading of that article simply notes that searches and seizures must not be “unreasonable”, and as Mr. McCarthy so eloquently cited, there are already literally dozens of conditions in criminal law where a warrant is not required at all. What manner of logic must be used to suggest that a private citizen’s yacht may be searched on the open sea without a warrant, but foreign nationals have a right to privacy for their e-mails to or from places like Afghanistan, Pakistan, or Iran? I rather suspect that if those emails should later prove critical to advance knowledge of a plot to, say, irradiate Washington D.C. with a dirty bomb, the same leftists now demanding new rights for suspected terrorists would be the first to demand to know why we did not intercept the communications.

In the end, I do not worry overmuch about the Democrats and their agenda. While they manage to smear good people’s names, and have managed to distract focus from the War on Terror all too often, the Democrats can’t fool all the people, most of whom I can trust to recall why we are in this war, and to understand the need for responsible but functional strategy.

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