• This is a political forum that is non-biased/non-partisan and treats every persons position on topics equally. This debate forum is not aligned to any political party. In today's politics, many ideas are split between and even within all the political parties. Often we find ourselves agreeing on one platform but some topics break our mold. We are here to discuss them in a civil political debate. If this is your first visit to our political forums, be sure to check out the RULES. Registering for debate politics is necessary before posting. Register today to participate - it's free!
  • Welcome to our archives. No new posts are allowed here.

Legal Analysts Concludes That The Administration's Justification For Spying Shakey

TimmyBoy

Banned
Joined
Sep 23, 2005
Messages
1,466
Reaction score
0
Gender
Undisclosed
Political Leaning
Undisclosed
Come on, let's be real here. Bush violated the Constitution and the law but it doesn't matter because the constitution doesn't matter. The truth of the matter is that the government will just do whatever it wants and act above the law and their is no accountabilty. The government has no respect for the constitution and the rule of law. They treat the constitution as a sham:

Memo Questions Domestic Monitoring Excuse By KATHERINE SHRADER, Associated Press Writer
Fri Jan 6, 9:24 PM ET



WASHINGTON - A memorandum from two congressional legal analysts concludes that the administration's justification for the monitoring of certain domestic communications may not be as solid as President Bush and his top aides have argued.
Yet two attorneys in the organization's legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees "does not seem to be as well-grounded as the tenor of that letter suggests."
The Bush administration says it was legal under Article 2 of the Constitution, which grants presidential powers, and Congress' September 2001authorization to use military force to conduct the war on terror.

But the memo concludes: "It appears unlikely that a court would hold that Congress has ... authorized the NSA electronic surveillance operations here under discussion."

Responding to the report, Justice Department spokesman Brian Roehrkasse said the activities "were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties."

The domestic monitoring has raised questions about the appropriate powers of Congress and the executive branch. Congress' legal advisers are saying lawmakers should have a role in overseeing such activities.
Sen. Frank Lautenberg (news, bio, voting record), D-N.J., who was among those who requested the research service's memo, said it contradicts Bush's claim that the program was legal.

"It looks like the president's wiretapping was not only illegal, but likely targeted innocent Americans who did nothing more than place a phone call," he said.
http://news.yahoo.com/s/ap/20060107/ap_on_go_co/domestic_spying
 

aps

Passionate
DP Veteran
Joined
Sep 25, 2005
Messages
15,675
Reaction score
2,979
Gender
Female
Political Leaning
Liberal
Ahh, yes, it looks like Bush's actions will not be covered by his presidential powers. The headline in today's Washington Post is "Report Rebuts Bush on Spying." The legislative history of the FISA court legislations speaks to this very issue. The article states the following:

The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said.

The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.
Bush is on weak legal ground. Monday is the day that the judges on the FISA court get briefed on the Bushies' alleged legal rights to do this. I wonder what they will think.
 

oldreliable67

DP Veteran
Joined
Oct 3, 2005
Messages
4,641
Reaction score
1,102
Gender
Male
Political Leaning
Undisclosed
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

Shall I repost the opinions of other legal scholars who think that Bush was probably acting within the scope of the power of the executive branch?

I emphasized 'probably' so that it stands out from the tone of the previous posts. Notice the certainty expressed in the poster's comment relative to the wording of the article cited...

Poster: "it looks like Bush's actions will not[emphasis added] be covered by his presidential powers."

Article Cited: "said that Bush probably cannot claim the broad presidential powers ... Bush's assertion...does not appear [emphasis added] to be supported"

One should also consider the relative strength of the qualifications of those opining on the topic as well. The article cited quotes a report authored by "two congressional legal analysts...attorneys in the organization's legislative law division". At least they appear to be lawyers. But frankly, as compared to the knowledge and experience of two "congressional legal analysts" versus faculty from Harvard, Duke, Chicago, etc., well, you're certainly welcome to pick whomever you think is right.

At least aps did conclude that "Bush is on weak legal ground", suggesting a recognition that the answers to the legal questions are far from certain for either Bush or his critics.

TimmyBoy, though, is pretty adamant: "Bush violated the Constitution and the law". I, for one, have a hard time understanding the adamancy, the dogmatic certainty expressed about something that has engendered significant differences of opinion among a wide range of legal scholars.
 

Lefty

Member
Joined
Dec 30, 2005
Messages
119
Reaction score
0
Location
Philadelphia
Gender
Undisclosed
Political Leaning
Liberal
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

C'mon oldreliable, we addressed this before. You're taking a couple words and saying "oh look, it doesn't prove anything because they said 'maybe.'" Since these individuals are not the ones officially judging the president's actions they will say "probably" and what have you in respect to "innocent until proven guilty." If he was guilty until proven innocent than the wording would be different. But you can't take a few words and present it has proof that this means nothing.
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
Screw the reports, read the memo, much more interesting and complete in my mind (so far, haven't quite finished it yet)

http://fas.org/sgp/crs/intel/m010506.pdf

Especially you Oldreliable. Some interesting stuff realted to this VERY issue the courts have ruled on. Incidentally, one ruling actually offers the legal mechanism congess should use to delinieate foreign and domestic communications intercetps, appears to have led to the Passage of FISA, and the creation of FISA courts and FISA warrants.

I think the courts, the Church Commision, and congress have made more than sufficient prior rulings, findings, and laws regarding this issue.

The Preisdent has power in Article II, the COngress has power over the President in Article I, section 8 especially.
 

Stinger

DP Veteran
Joined
May 3, 2005
Messages
15,097
Reaction score
537
Gender
Male
Political Leaning
Very Conservative
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

TimmyBoy said:
Come on, let's be real here. Bush violated the Constitution and the law but it doesn't matter because the constitution doesn't matter. The truth of the matter is that the government will just do whatever it wants and act above the law and their is no accountabilty. The government has no respect for the constitution and the rule of law. They treat the constitution as a sham:

http://news.yahoo.com/s/ap/20060107/ap_on_go_co/domestic_spying
Congressional anaylst? Not surprising as the congress would love to be successful in this power grab. However the court cases INCLUDING THE FISA COURTS OWN AGREEMENT are clearly on the Administrations side.

And your silly little "this government will do anything it wants" is also belied by the facts and the lengths the Administration went to to make sure they were on solid legal grounds so if you want to argue the legal points have at it but the incenuations that the Adminstration was trying to knowning break the law are false, bordering on outright lies since the clear evidence otherwise has been posted over and over and remains unrebutted.
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

Stinger said:
Congressional anaylst? Not surprising as the congress would love to be successful in this power grab. However the court cases INCLUDING THE FISA COURTS OWN AGREEMENT are clearly on the Administrations side.

And your silly little "this government will do anything it wants" is also belied by the facts and the lengths the Administration went to to make sure they were on solid legal grounds so if you want to argue the legal points have at it but the incenuations that the Adminstration was trying to knowning break the law are false, bordering on outright lies since the clear evidence otherwise has been posted over and over and remains unrebutted.

Rebut THIS: "To constitute tribunals inferior to the Supreme Court; "
And THIS: "To make rules for the government and regulation of the land and naval forces; "
and THIS: "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. "

And last, but ABSOLUTELY NOT LEAST rebut this: http://fas.org/sgp/crs/intel/m010506.pdf
 

Stinger

DP Veteran
Joined
May 3, 2005
Messages
15,097
Reaction score
537
Gender
Male
Political Leaning
Very Conservative
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

libertarian_knight said:
Rebut THIS:
I will after all the court cases including the findings of FISA itself that have been posted over and over and over have been rebutted.s

But let me give you just one example. In the starting post one of the quotes is

"The domestic monitoring has raised questions about the appropriate powers of Congress and the executive branch. Congress' legal advisers are saying lawmakers should have a role in overseeing such activities."

OK someone thinks the "should", that's a far cry for "they do" which they don't. There's lot's of people in congress that think the "should" be able to do lots of things to hamper the executive. It's the historical battle between branches of government. And they erroneously state that it was DOMESTIC monitoring when we have no evidence that it was, it may have led to communications coming out of the US but they were monitoring foreign communications. Now if you want to change the constitution then try it, but I bet it won't make it out of committed and the states will never go for it.
 
Last edited:

M14 Shooter

Banned
DP Veteran
Joined
Sep 30, 2005
Messages
2,622
Reaction score
68
Location
Toledo-ish OH
Gender
Male
Political Leaning
Very Conservative
libertarian_knight said:
The Preisdent has power in Article II, the COngress has power over the President in Article I, section 8 especially.
Congress has power over the president in certain things - checks and balances. There are also certain things that the President has over the Congress - more checks and balances. But not -everything- the President does is subject to a 'check' by Congress, and vice versa.

Part of the situation here revolves around executive orders given by Bush and hs predecessors -- are these orders valid, and if so, based on what?

Executive orders have several levels of legititimacy-
-An EO based on an inherent power of the President, backed by a resolution from Congress (strongest)
-An EO based soley on the inherent power of the president
-An EO not based on any inherent power of the President, but on a power granted to some other branch of government
-An EO based not based on any power granted to anyone under the Constitution. (weakest)

The administration is arguing the first scenario.
 
Last edited:

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
M14 Shooter said:
Congress has power over the president in certain things - checks and balances. There are also certain things that the President has over the Congress - more checks and balances. But not -everything- the President does is subject to a 'check' by Congress, and vice versa.

Part of the situation here revolves around executive orders given by Bus and hs predecessors -- are these orders valid, and if so, based on what?

Executive orders have several levels of legititimacy-
-An EO based on an inherent power of the President, backed by a resolution from Congress (strongest)
-An EO based soley on the inherent power of the president
-An EO not based on any inherent power of the President, but on a power granted to some other branch of government
-An EO based not based on any power granted to anyone under the Constitution. (weakest)

The administration is arguing the first scenario.
There is also and EO that violates the will of congress, and their consitutional authority "To make rules for the government and regulation of the land and naval forces; " and "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. "

This INCLUDES, FISA Courts, the NSA, the DOJ, the Treasury, The Army, Navy, USSS, etc. The President CAN NOT Authorize the DOJ or NSA or Army, or CIA to do anything the Congress has prohibited.

The President is CiC but congress COULD legislate that all military service must be conducted by people over age 75. (absurd I know, but within the realm of congress to do, since the regulate the Army and Navy).

The AUMF does not and can not give the president authority that was denied the president, especially authority denied "notwithstanding (despite) ANY other law." FISA 1978,

(Furthermore AUMF has an air of being Ex-post facto.)

The Congress makes the NSA, CIA, Army, Navy, DOJ and ALL THE RULES THAT GOVERN AND REGULATE THOSE AGENCIES and those agencies are therefor BOUND BY THE WILL OF CONGRESS.

The President is charged with Defending and Preserving the Consitution of the United States and FAITHFULLY EXECUTING THE LAWS OF THE UNITED STATES. Something he is CLEARLY NOT DOING. Ignoring FISA, and ignoring the Tortue Amendment is NOT faithfully executing the laws, not in the least.

Congress needs to smack Bush in line.
 

M14 Shooter

Banned
DP Veteran
Joined
Sep 30, 2005
Messages
2,622
Reaction score
68
Location
Toledo-ish OH
Gender
Male
Political Leaning
Very Conservative
libertarian_knight said:
This INCLUDES, FISA Courts, the NSA, the DOJ, the Treasury, The Army, Navy, USSS, etc. The President CAN NOT Authorize the DOJ or NSA or Army, or CIA to do anything the Congress has prohibited.
Thats true only if
-Congress had the power to prohibit it
-The President didnt have the inherent power to do it in the first place.

Congress cannot prohibit the President from doing something the Constitution says he can do; any such legislation can be safely ignored by the President.

The President is CiC but congress COULD legislate that all military service must be conducted by people over age 75. (absurd I know, but within the realm of congress to do, since the regulate the Army and Navy).
Thats true.
But Congress could not legislate that the President order the USS Nimitz to set sail tomorrow, and if Bush issued an EO over any such legislation, he would be fully within his powers.

The President is charged with Defending and Preserving the Consitution of the United States and FAITHFULLY EXECUTING THE LAWS OF THE UNITED STATES. Something he is CLEARLY NOT DOING. Ignoring FISA, and ignoring the Tortue Amendment is NOT faithfully executing the laws, not in the least.
We all know that in times of war, the President has significant lattitude in his powers, especially where national defense is concerned.
What did Lincoln say? To preserve the Constitution, I have to violate it? Something like that.
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
The USS nimitz thing is interesting, because I think, that should congress have authorized it as part of the Navy, they loose control while it exists. However, they could order the Nimitz to return to port, and be decomissioned could they not?

The President has very few EXPLICIT POWERS, and those powers that are implicit can be legislated by congress.

Congress can not appoint ambassadors themselves, and they are not CiCs, but of the implicit powers of the president, MOST actually stem from Congressional Establishment of an Agnecy or Department to which the Preisdent is executive of, i.e. the NSA, DOJ, etc.

Congress can also make departments and positions in the government which the President has no authority over. (CBO, CRS etc).

The President's so called "Inherent implicit authority" to use the NSA to spy on US citizens, ONLY COMES OUT THE THE RULES AND LAWS the Congress created when using its' EXPLICIT Constitutional Authority to create such Departments.

It's like a friend saying "I can f*** your wife, simply because you invited me over to your house to watch football." It's wholly irrational. There is obviously a lot wrong with that thinking.

Congress, in use of their EXPLICIT POWERS in the Constitution created a Department, also used another EXPLICIT POWER to set rules and laws for every department created, and it is the departments born of EXPLICIT POWERS that would give the president any implied powers. Therefor, congress, using their explicit powers, can prohibit, alter, weaken, strengthen, or affirm the president's implicit powers, at any time.

I don't really know where this "separation of powers" idea comes from, or the "balance of power," either. It's junk. No way ONE MAN was intended to have as much power as the legislature. No Way one man, with few EXPLICT POWERS< was supposed to have as much power than 575 People with NUMEROUS EXPLICIT POWER.

Even some of the FEW explicit powers the president DOES have, are also subject to Senate and Congressional Approval or Override.

I hold, that anything EXPLICITLY STATED always hold more wieght than any presummed implication. Especially when the implication is dependant upon an explicit statment or act.

(Bear in mind, the NSA was created by Executive Order, BUT it falls under the DoD which was created by Statue, and thus still subject to Congressional rules still)
 
Last edited:

M14 Shooter

Banned
DP Veteran
Joined
Sep 30, 2005
Messages
2,622
Reaction score
68
Location
Toledo-ish OH
Gender
Male
Political Leaning
Very Conservative
libertarian_knight said:
The USS nimitz thing is interesting, because I think, that should congress have authorized it as part of the Navy, they loose control while it exists. However, they could order the Nimitz to return to port, and be decomissioned could they not?
Congress cannot order anyone in the military to do anything.
They can refuse to fund it, but they cannot issue orders that the CO must follow.

The President has very few EXPLICIT POWERS, and those powers that are implicit can be legislated by congress.
But... one of thise powers is the role of the CinC. Remember that everything we're discussing here is related to national security, not law enforcement. Certainly, congress and the President work together in national security efforts, but the President, as CinC has the power to make a LOT of calls on his own.

One of them is the collection of intel regarding enemy operations. Seeing as that's the purpose of the 'warrantless searches', and that the enemy does not take the traditional form of a state - meaning that people inside the US, even US citizens might be the enemy - I am more than willing to grant the CinC leeway here.

Congress can not appoint ambassadors themselves, and they are not CiCs, but of the implicit powers of the president, MOST actually stem from Congressional Establishment of an Agnecy or Department to which the Preisdent is executive of, i.e. the NSA, DOJ, etc.
Its is true that the Congress created the various departments, and that Congress has a role in writing the rules for these departmets. But, what is NOT true is that Congress has much say in the decisions these departments make -- especially where national defense and foreign policy are concerned.

Congress can also make departments and positions in the government which the President has no authority over. (CBO, CRS etc).
Thats because they fall under the legislative branch, not the executive branch (like the DoD). The President can make up psotiions that the Congress has no control over as well.

The President's so called "Inherent implicit authority" to use the NSA to spy on US citizens, ONLY COMES OUT THE THE RULES AND LAWS the Congress created when using its' EXPLICIT Constitutional Authority to create such Departments.
But again - the power to give those commands comes not from Congress, but from Article II. The question remains -- does the President, as CinC, during wartime have the inherent power to collect intel on the enemy? Of course he does. Does the fact that the enemy might be someone inside the US change this? No - all enemies, foreign or domestic.

I don't really know where this "separation of powers" idea comes from, or the "balance of power," either. It's junk.
Its inherent in the structure of our government. Each branch has a way to put some sort of limit on the other, so that none of them gain too much power. I'm surprised you aren't awar of this...?

No way ONE MAN was intended to have as much power as the legislature. No Way one man, with few EXPLICT POWERS< was supposed to have as much power than 575 People with NUMEROUS EXPLICIT POWER.
National defense is, clearly, one of the areas where the executive was intended to have more power. Congress gives the President the tools to fight, and the President fights how he sees fit. Congress has absolutely NO command authority.

Even some of the FEW explicit powers the president DOES have, are also subject to Senate and Congressional Approval or Override.
His role as CinC isnt one of them.

IMHO, rather than figthing Bush, the lunatic fringe liberals in Congress should work WITH him to resolve these issues. His position is that current law ties his hands, and so he has to act on his own authority -- rather than the infantile partisan screams for impeachment, Congress, with one voice, should ask 'what can we do to make things better?"
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
M14 Shooter said:
Congress cannot order anyone in the military to do anything.
They can refuse to fund it, but they cannot issue orders that the CO must follow.


But... one of thise powers is the role of the CinC. Remember that everything we're discussing here is related to national security, not law enforcement. Certainly, congress and the President work together in national security efforts, but the President, as CinC has the power to make a LOT of calls on his own.

One of them is the collection of intel regarding enemy operations. Seeing as that's the purpose of the 'warrantless searches', and that the enemy does not take the traditional form of a state - meaning that people inside the US, even US citizens might be the enemy - I am more than willing to grant the CinC leeway here.


Its is true that the Congress created the various departments, and that Congress has a role in writing the rules for these departmets. But, what is NOT true is that Congress has much say in the decisions these departments make -- especially where national defense and foreign policy are concerned.


Thats because they fall under the legislative branch, not the executive branch (like the DoD). The President can make up psotiions that the Congress has no control over as well.


But again - the power to give those commands comes not from Congress, but from Article II. The question remains -- does the President, as CinC, during wartime have the inherent power to collect intel on the enemy? Of course he does. Does the fact that the enemy might be someone inside the US change this? No - all enemies, foreign or domestic.


Its inherent in the structure of our government. Each branch has a way to put some sort of limit on the other, so that none of them gain too much power. I'm surprised you aren't awar of this...?


National defense is, clearly, one of the areas where the executive was intended to have more power. Congress gives the President the tools to fight, and the President fights how he sees fit. Congress has absolutely NO command authority.


His role as CinC isnt one of them.

IMHO, rather than figthing Bush, the lunatic fringe liberals in Congress should work WITH him to resolve these issues. His position is that current law ties his hands, and so he has to act on his own authority -- rather than the infantile partisan screams for impeachment, Congress, with one voice, should ask 'what can we do to make things better?"
There is more to get in here, but i only have a minute.

The DoD is created by Congress, and sets up certain positions that require congressional approval (secretary etc). Now, congress can make those positition explicitly, or fill them, or allow the president to both MAKE and fill them. When the president has authority to Either MAKE or FILL positions in the Congressionally created department, it's because Congress wrote into the law he could, or in some instances did not prohibit it. That's why the Pres was able to establish the NSA within the DOD.

Congress can also make a rule, that a depratment MUST be approved by congressional appointment, even if within the executive branch.
 

Stinger

DP Veteran
Joined
May 3, 2005
Messages
15,097
Reaction score
537
Gender
Male
Political Leaning
Very Conservative
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

libertarian_knight said:
The President is charged with Defending and Preserving the Consitution of the United States and FAITHFULLY EXECUTING THE LAWS OF THE UNITED STATES. Something he is CLEARLY NOT DOING. Ignoring FISA, and ignoring the Tortue Amendment is NOT faithfully executing the laws, not in the least.
Why do you keep saying that when it has been shown over and over that the courts including the FISA court itself say that FISA or any other legislation cannot infringe on the Presidents constitutional power to do exactly what he is doing?

Congress needs to smack Bush in line.
Congress needs to mind it's buiness and stop trying to grab power from the President.
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

Stinger said:
Why do you keep saying that when it has been shown over and over that the courts including the FISA court itself say that FISA or any other legislation cannot infringe on the Presidents constitutional power to do exactly what he is doing?



Congress needs to mind it's buiness and stop trying to grab power from the President.
That's actually NOT what the courts say. In fact, if you read teh CRS memo, the FISA courts used pre-FISA rulings to back their claims. However, there are obvious limitations on Presidental authority, even those explicitly listed as presidential power. Again, the War Powers Act. It limits the authority of the president, as CiC to engage in military conflict without Congressional Approval, either periodically, or for whatever term congress sets, including conclusion.

IF FISA is ruled unconsitutional, the War Powers act, can also be ruled unconsitutional because the intent of both, as part of the law, commissions and congressional record state that their intent is to some way "cabin" presidential authority. Along wiht a GREAT RANGE of federal law, including but not limited to: the USA PATRIOT ACT, Omnibus Crime..., and a very long litany of other congressional legislation designed to clarify or limit presidential authority. Something the Congress has the EXPLICIT AUTHROITY to do under Article I Section 8.

it's the Presidency that makes the power grab. There is a reason the President has only a FEW explicit consitutional powers, and the Congress the MOST explicit consitutional powers of any part of the government, that even extends to all parts of the government. Please, learn the difference between Republic and Dictatorship.

many of the implied and assumed Presidental authorities come from tradition or tolerance, not the constitution.

Don't forget, the First and pre-eminant article of the Constitution is Article I, that of the legislature. There is a reason the framers put the legislature first and foremost. There is also a reason, that many of the explicit presidential powers require the consent of the Senate or Congress to be utilized. There is no power, short of Pardons that is not limited by congress or congressional action, in the constitution itself.

Even being CiC can be limited by Congress, because they establish and fund the armies etc, and just as such, can decomission or defund them.

===
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; (and the converse, to disband or defund armies, it is the pergoative of congress to do so, in any manner they choose)

To provide and maintain a Navy; (same)

To make Rules for the Government and Regulation of the land and naval Forces; (this includes the DoD, thus NSA, DIA, CIA, Army, Navy Airforce, Marines, Coastguard, DEA, FAA, NOAA, USDA, ad nauseum.)....

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Any Department of Officer thereof, such as DoD, thus NSA, CIA, RBI, get the idea?)
 

oldreliable67

DP Veteran
Joined
Oct 3, 2005
Messages
4,641
Reaction score
1,102
Gender
Male
Political Leaning
Undisclosed
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

Whew! It is piling up deeper and deeper!
 

M14 Shooter

Banned
DP Veteran
Joined
Sep 30, 2005
Messages
2,622
Reaction score
68
Location
Toledo-ish OH
Gender
Male
Political Leaning
Very Conservative
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

Every president, since Nixon, who vetoed it, has held that the WPA is unconstitutional. They go along with it for expedience, but they still claim that holding. The basis of that argument is that the CinC has the espressed, plenary power to command he military, and Congress has no expressed power to limit the power of the CinC when acting as the CinC.

Don't forget, the First and pre-eminant article of the Constitution is Article I, that of the legislature. There is a reason the framers put the legislature first and foremost.
I think you'd have a hard time supporting that argument. You can try if you like. Seems to me the Constitution set the three branches of government up as co-equal, with Article I being Congress simply because someone had to come first.

Even being CiC can be limited by Congress, because they establish and fund the armies etc, and just as such, can decomission or defund them.
Right., Congress gives the President the means with which to fight.
This does not in any way grant operational control of the ability to limit operational control of that means.

Congress has the power to declare war; the power to declare war does not give Congress command authority over the military in peace OR war.
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

M14 Shooter said:
Every president, since Nixon, who vetoed it, has held that the WPA is unconstitutional. They go along with it for expedience, but they still claim that holding. The basis of that argument is that the CinC has the espressed, plenary power to command he military, and Congress has no expressed power to limit the power of the CinC when acting as the CinC.

I think you'd have a hard time supporting that argument. You can try if you like. Seems to me the Constitution set the three branches of government up as co-equal, with Article I being Congress simply because someone had to come first.

Right., Congress gives the President the means with which to fight.
This does not in any way grant operational control of the ability to limit operational control of that means.

Congress has the power to declare war; the power to declare war does not give Congress command authority over the military in peace OR war.
I understand congress doesn't have operational control over the military, we've established that, you and i, in our discussion. Thus, reiterating it does not advannce the debate.

Sure someone had to come first, but why the legisature? did they draw straws? no. The Consitution vested most of the powers, and the most important ones in Congress, and it wasn't by chance, it was by Intelligent Design. (laughs)

Congress again, has the necessary and proper clause, and control over legislation and rules over all other apsects of government. This is something no other branch has, and it is expressly written into the Constitution for Congress to have. Therefor it is incumbant upon the other parts of government, to abide by those rules. That is, with the exception of the express (not implied) powers of the president (such as CiC and Pardons, etc).

The Congress can also revoke military conflicts, the President, either through the Constitution needs a declaration of war, or through WPA the eventual resolution of COngress to continue hostilites. This IS A POWER OVER THE CiC AS CiC.

The President clearly can not decide, against the will of congress, initiate or to remain engaged in any hostility without congressional consent.

The Order, Historical documents, debates, and powers of the Constitution in the various branches really do not lay out "equal powers" nor clear separation in most areas; and in those areas where is there SOME separation, congress again has the explicit authority to regulate, legislate and make rules governing those areas for all of the US government, Departments, and the Army and Navy, etc.

The President's Implicit Authority to Intercept Electronic COmmunications without a warrant is tempered by BOTH the US Constitution and Federal Legislation.

The AUMF also says "necessary and proper." Not "Necessary and Convienient" or "Necessary or proper." There are two Qualifications. Congress Outlined, as it has the Authority to do, the PROPER methods of Conduct concerning electronic Suvielence of US Persons in regard to Foreign intelligence communcation collection.

Therefor the use of AUMF or implicit authority as CiC, is not being properly obeyed.

The AUMF did not authorize "Necessary and improper" and improper is what the Aministration did. It very well may have been necessary to do as the Administration did. But the Admin's Impropriety has led to a significat exposure of a value National Security Signal Intelligence collections apparatus.

Furthermore, both Post FISA non-FISA courts have ruled that the electronic communication intercepts of US Persons requires a warrant, as had the Legistature explicitly stated "Notwithstanding any other law," within the bounds of their Constitutional authority, that such is necessary also when there is a substantial likelihood of interceptions of electronic communications to which a US Person is a party (and has not given consent.)

Do yourself a favor, and read the Congressional Research Service Memorandum from January 5, 2006, Regarding "Presidential Authority ro Conduct Warrantless Electronic Surveillance to Gather Foreign Intlligence Information."

Much of the popular arguements, either by the admin or pundits, are adressed in this memo.

http://fas.org/sgp/crs/intel/
 

M14 Shooter

Banned
DP Veteran
Joined
Sep 30, 2005
Messages
2,622
Reaction score
68
Location
Toledo-ish OH
Gender
Male
Political Leaning
Very Conservative
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

Seeing as you clearly arent going to be swayesd, I'm going to just address this:

Sure someone had to come first, but why the legisature? did they draw straws? no. The Consitution vested most of the powers, and the most important ones in Congress, and it wasn't by chance,
You said that.
But can you support it?
I dont recall reading anyone ever making that argument.
 

libertarian_knight

DP Veteran
Joined
Jun 23, 2005
Messages
997
Reaction score
0
Gender
Male
Political Leaning
Independent
First, the Artilces of Confederation. Many of the same people that eventually wrote the US COnsitution, wrote the Articles also. (I know the Articles have no real legal bearing currently, but it shows a methodology used by the Founders. Much like "Wall of Separation fo Church and State had not real legal bearing as one of Jefferson's Personal writings until the supreme court noted and used it in a ruling as an intent of the Founders'.) The First Incarantion of the United States of America has a significantly weaker "President" if it could really be called a preisdent at all. (since the word shows up only once, and the position only served one year, and the person only one year in every three, and had no "power.")

There was, essentially no functional executive branch. This is what many of the poeple who went on to found the US Constitution had desried. Now, given that, there is the scope of the debate in the Federalist and counter papers, much of which concerned the powers of the proposed legislature, and the extent of the expansion and creation of a distinct Executive Branch. A very significant portion of the debate was the extent of powers afforded to the executive, which would have to progress from no power, to some other level of power.

The country rebelled from a country with an absolute executive, and therefor it seems grossly illogical, especially given the writings of: the Declaration of Indepenence and its' emphasis on representation, the Articles of Confederation and it's absence of an executive, The Publically disceminated Publius Writings which were designed in part to build support for an executive branch (which showed the country was disfavored to any executive, let alone a strong one), the writen ratifications of the US Constitution by the Member States and their statements therein contained, and the writings of those present in the Consitutional Convention, that they would choose an executive branch approaching anything toward the level of Power enjoyed by the Britsh Crown.

This country was founded without an executive branch, and having made a realization, that, especially for warfare, an executive would be needed, they included one. However, this executive was supposed to be held to Execute the will of Congress in its Consitutionally Authorized Powers, and those powers specifically vested into the President.

Again, it is clear from the limitations placed upon the use of most presidential powers, require either the consent of congress, or the advice and consent of the senate, that the President was meant, to some way be impeded by acts of Congress, and furthermore it is by specific acts of Congress that Presidential Authority can be stripped from the President, should the parts of Congress having found the Preisdent in violation of Treason, Bribery, or other high crimes and misdemeanors (Also note that the Congress has the Authority to define what high crimes and misdemeanors are, including Perjury, a crime not specifically mentioned in the Consitution, was used as a mechanism for impeachment of the former President.)

Through Logical inference contained solely within the Constitution itself, it is evidence that the majority of power is vested into the Congress, inclduing the power to Declare War, Lay and Collect Taxes, and Establish and fund the Army and Navy, to name a few. With only a realtive few limiting requirements on how Congress can interact with the other branches of government, several of which regard monetary compensation.

So I have gave you some sources of information, I gave an examination of the Consitution by itself, the DoI, Federalist Papers (which spoke of both the powers and limits of an executive branch).

Have I given specific quote? no. For one I don't have most of the info readily available, and would take some time to go back through waht I have already read before. With the exception of the DoI, AoC, and USConst being pretty short, most of the stuff takes some time to go back through, particularly "Publius'," Jefferson's, Washington's, Henry's, Mason's and Franklin's Writings. Many of whom expressed high importance on representative government and limitation or absence of an executive branch.
 

SouthernDemocrat

Pragmatist
DP Veteran
Joined
Jun 23, 2005
Messages
23,580
Reaction score
14,616
Location
KC
Gender
Male
Political Leaning
Moderate
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

libertarian_knight said:
First, the Artilces of Confederation. Many of the same people that eventually wrote the US COnsitution, wrote the Articles also. (I know the Articles have no real legal bearing currently, but it shows a methodology used by the Founders. Much like "Wall of Separation fo Church and State had not real legal bearing as one of Jefferson's Personal writings until the supreme court noted and used it in a ruling as an intent of the Founders'.) The First Incarantion of the United States of America has a significantly weaker "President" if it could really be called a preisdent at all. (since the word shows up only once, and the position only served one year, and the person only one year in every three, and had no "power.")

There was, essentially no functional executive branch. This is what many of the poeple who went on to found the US Constitution had desried. Now, given that, there is the scope of the debate in the Federalist and counter papers, much of which concerned the powers of the proposed legislature, and the extent of the expansion and creation of a distinct Executive Branch. A very significant portion of the debate was the extent of powers afforded to the executive, which would have to progress from no power, to some other level of power.

The country rebelled from a country with an absolute executive, and therefor it seems grossly illogical, especially given the writings of: the Declaration of Indepenence and its' emphasis on representation, the Articles of Confederation and it's absence of an executive, The Publically disceminated Publius Writings which were designed in part to build support for an executive branch (which showed the country was disfavored to any executive, let alone a strong one), the writen ratifications of the US Constitution by the Member States and their statements therein contained, and the writings of those present in the Consitutional Convention, that they would choose an executive branch approaching anything toward the level of Power enjoyed by the Britsh Crown.

This country was founded without an executive branch, and having made a realization, that, especially for warfare, an executive would be needed, they included one. However, this executive was supposed to be held to Execute the will of Congress in its Consitutionally Authorized Powers, and those powers specifically vested into the President.

Again, it is clear from the limitations placed upon the use of most presidential powers, require either the consent of congress, or the advice and consent of the senate, that the President was meant, to some way be impeded by acts of Congress, and furthermore it is by specific acts of Congress that Presidential Authority can be stripped from the President, should the parts of Congress having found the Preisdent in violation of Treason, Bribery, or other high crimes and misdemeanors (Also note that the Congress has the Authority to define what high crimes and misdemeanors are, including Perjury, a crime not specifically mentioned in the Consitution, was used as a mechanism for impeachment of the former President.)

Through Logical inference contained solely within the Constitution itself, it is evidence that the majority of power is vested into the Congress, inclduing the power to Declare War, Lay and Collect Taxes, and Establish and fund the Army and Navy, to name a few. With only a realtive few limiting requirements on how Congress can interact with the other branches of government, several of which regard monetary compensation.

So I have gave you some sources of information, I gave an examination of the Consitution by itself, the DoI, Federalist Papers (which spoke of both the powers and limits of an executive branch).

Have I given specific quote? no. For one I don't have most of the info readily available, and would take some time to go back through waht I have already read before. With the exception of the DoI, AoC, and USConst being pretty short, most of the stuff takes some time to go back through, particularly "Publius'," Jefferson's, Washington's, Henry's, Mason's and Franklin's Writings. Many of whom expressed high importance on representative government and limitation or absence of an executive branch.
I might add to all of this, and I am sure you are aware of this being that you are a libertarian, but it seems that some on the “Big Brother Right” seem to have this notion that our Founding Fathers set out to create a highly functional and efficient government.

That of course could not be further from the truth. If anything, our Federal Government is by design a government that is very inefficient in terms of governing and the branches of government, especially the executive and legislative branches, are totally interdependent on each other in almost all matters of governance. It’s a design that prevents totalitarianism. There is no power by congress going on here, if anything, congress for the last 50 years or so has not consistently exercised the power granted it in the constitution which has allowed the courts to one extent or another to extend their power beyond the intention of the framers, and the Presidency to have a huge amount of power as compared to what the framers originally intended.

When we allow the Executive Branch of government to spy on its citizens without judicial approval or congressional oversight, we are essentially handing the president unchecked power in this regard. Where in the constitution, or even the writings of the framers, do we find any examples of any branch of government being given unchecked power?
 

oldreliable67

DP Veteran
Joined
Oct 3, 2005
Messages
4,641
Reaction score
1,102
Gender
Male
Political Leaning
Undisclosed
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

Lefty said:
C'mon oldreliable, we addressed this before. You're taking a couple words and saying "oh look, it doesn't prove anything because they said 'maybe.'" Since these individuals are not the ones officially judging the president's actions they will say "probably" and what have you in respect to "innocent until proven guilty." If he was guilty until proven innocent than the wording would be different. But you can't take a few words and present it has proof that this means nothing.
Lefty,

Sorry, somehow I missed this post for a couple of days, would've responded to it sooner otherwise.

No, I'm not saying that "it doesn't prove anything" I'm say there exists considerable uncertainty, that neither admin critics nor its supporters are able to make a case with any overwhelming degree of certainty. As before, my only arguments in threads related to this matter have to do with the dogmatic certainty with which those both pro and con the admins position present their arguments. This is a complex legal matter; it just ain't that simple.

The CRS memorandum is a good example of the complexity of the arguments. The memo is quite good, to my non-legally-trained eye: the authors organized their arguments in an exhaustive yet cohesive and persuasive manner. Yet they are unable to conclude with anything other than an admission that, "Given such uncertainty, the administration's legal justification...does not seen as well-grounded as the tenor of that letter suggests."

The CRS memo is quite consistent with the range of opinions of the other legal scholars whose opinions I have cited in other posts: some believe the admin's position to be well-grounded, some do not. Pros and cons alike are almost all are couched in terms of "maybes", "probably", and "appears".

To me, this sounds like a definite maybe.

You may recall from other posts that I am hopeful that this question eventually finds its way to the SC. To reiterate, IMO, these are very important questions for our security going forward. We need legal resolution of these uncertainties as soon as possible.
 

Stinger

DP Veteran
Joined
May 3, 2005
Messages
15,097
Reaction score
537
Gender
Male
Political Leaning
Very Conservative
Re: Legal Analysts Concludes That The Administration's Justification For Spying Shake

oldreliable67 said:
The CRS memo is quite consistent with the range of opinions of the other legal scholars whose opinions I have cited in other posts: some believe the admin's position to be well-grounded, some do not. Pros and cons alike are almost all are couched in terms of "maybes", "probably", and "appears".
I entirely disagree with that statement. Yes on the side trying to charge that Bush is a criiminal and knowing broke the law the whole arguement is based on maybe's and wannebe's. But those who believe that this was perfectly within the realm of executive authority have clearly stated the supporting court decissions and legal basis not framed in maybe's but fact.
 
Top Bottom