|
| quote: | Originally posted by Q5echo
...which, in fact, the FISC itself clearly states, unabiguously, that he is not beholden to. |
You're either confusing or obfuscating what the sealed case is stating. Again, the acknowledgment written in dictum was one in passing to imply that POTUS had inherent authority to conduct warrantless wiretapping pre-FISA. The case they were referencing throughout that entire paragraph was Truong (and Keith as well before Truong) and the powers POTUS had prior to FISA enactment. Silberman and the other two judges were in no way suggesting that POTUS still has this authority regardless of a Congressional law like FISA is passed that requires the Executive to obtain a warrant (and has an emergency clause that allows him to obtain a warrant 72 hours after starting a wiretap, I might add). Besides, they were in no way making this argument at all in the first place (which you seem to agree).
| quote: | | Sealed Case No. 02-001 is the standard to which by the Executive currently acts. it's the standard to which by the Congress has acted. |
Your first sentence may indeed be correct, unfortunately for Bush. However, I have not seen this justification utilized by Bush or his Justice Department for a couple of years now. Instead I've seen the AUMF argument, which is a completely different (albeit terribly ridiculous) argument than Article II. In fact I believe it was around that whole Ashcroft bedside debacle when this Administration stopped using Article II to support themselves and switched to AUMF instead. And I believe we've already discussed the flaws of the AUMF argument before here ad nauseum, so I'm not surprised you're not using that one now.
The second sentence, however, continues to remain terribly unsupported. I’m still waiting for you to cite the Democratic leaders using this in order to support your assertion. For them to used a flagrant misinterpretation of what FISC was stating here, not to mention that their entire decision was overturned later by a District Court later regardless, what be just as ridiculous for them to use it as this Administration.
Then again, I wouldn’t put it past them.
| quote: | Truong was just an example:
"The Truong court, as did all the other courts to have decided the issue" |
As explained, the court was referring to all cases pre-Truong (including Keith), and not up to 2002. I’m really not sure how this could be interpreted the way you want. Regardless, even if I grant you that error, the opinion in dictum doesn’t hold a heck of a lot of water.
| quote: | | this was because the case before the FISC was about FISA presumably overstepping it's bounds, not the president. |
True - they were investigating whether FISA had given the President too much power under the Patriot Act written at that time and conflicted on the 4th Amendment. They ruled it did not, but their ruling was stricken down in a District Court in a Sept. 2007 case I keep mentioning. Not exactly sure how this is helping your argument.
| quote: | | the problem you continue to run into, and it just blows me away, is your wrong assuption that statute is above the Constitution. what Truman failed to have in Youngstown was exactly that. statute. |
I’m not exactly sure what you’re referring to here. Truman had asked Congress to create legislation that gave the Executive the power to seize the steel factories since the workers were on strike and he needed them to support the Korean War effort. Congress refused this – they did give him powers in regards to how to deal with issues involving strikes, but they specifically refused to give him powers to seize the factories. Truman, unlike Bush, went to argue his position to the courts that he had the “inherent authority” to do this anyway:
| quote: | Opposing the motion for preliminary [343 U.S. 579, 584] injunction, the United States asserted that a strike disrupting steel production for even a brief period would so endanger the well-being and safety of the Nation that the President had "inherent power" to do what he had done - power "supported by the Constitution, by historical precedent, and by court decisions.
….The Government refers to the seizure provisions of one of these statutes (201 (b) of the Defense Production Act) as "much too cumbersome, involved, and time-consuming for the crisis which was at hand."
http://caselaw.lp.findlaw.com/scrip...l=343&invol=579
|
Sound familiar? You’re arguing that Bush does not need to follow FISA because, among other reasons, he has the inherent power under Article II that grants him such powers. Youngstown specifically addressed this. The Executive cannot legislate, i.e. cannot pretend to enact powers that were not given to it by any given article under the Constitution. Congress in ’52 did not vest the law powers in Truman to seize the steel mills, and actually specifically turned his desire to do so. In the EXACT same manner, FISA specifically does not allow POTUS to wiretap without the Executive going to the FISA courts that Congress has set up (and the Executive had signed to make it law, BTW) to obtain a warrant within 72 hours after starting the tap. SCOTUS in ’52 told Truman that he did not have such powers because of these very reasons. And neither does Bush, because the laws that REGULATE the powers invested in the Executive are given by Congress and must be followed by the Executive, period. As it was stated in Youngstown by Justice Black writing for the majority:
| quote: | The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ."
After granting many powers to the Congress, Article I goes on to provide that Congress may "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."
The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.
With concurring opinions by Justice Douglas:
[QUOTE]The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate. Article II, [343 U.S. 579, 633] Section 3 also provides that the President "shall take Care that the Laws be faithfully executed." But, as MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER point out, the power to execute the laws starts and ends with the laws Congress has enacted. |
And Justice Jackson (really take note with this one):
| quote: | The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, "The executive Power shall be vested in a President of the United States of America." Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: "In our view, this clause constitutes a grant of all the executive powers of which the Government is capable." If that be true, it is difficult to see why the [343 U.S. 579, 641] forefathers bothered to add several specific items, including some trifling ones.
The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. |
Man, Yoo would have a conniption if he even remotely understood the meaning of that.
And finally, Justice Black specifically addresses those Executive Powers during times of war, especially during undeclared wars (like this one against Terra):
| quote: | Thus, it is said, he has invested himself with "war powers."
I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture. 10 [343 U.S. 579, 643] . . . .
The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although [343 U.S. 579, 650] it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.
We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. 19 I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. [343 U.S. 579, 651]
Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers. |
If you’re somehow trying to pin me down saying that I believe that laws passed by Congress somehow supersede the Constitutional, I completely agree with you on that, and I am not making that argument here at all. At this point, however, I have not seen you make the argument that the 1978 FISA law is somehow unconstitutional, but it seems this is what you’re going to go next. If so, then state it as such and support your assertion. You might run into a bit of difficulty with that, however, because the sealed FISC case itself explicitly upheld the fact that FISA was constitutional, and in doing so it precludes the idea that any regulation of foreign intelligence gathering by the President amounts to encroachment. So you’re going to run into trouble with the very document and case you’re presenting to defend yourself.
The question at hand, however, is whether POTUS has the constitutional authority to authorize warrantless surveillance of U.S. citizens and legalized aliens, notwithstanding FISA's restrictions. The FISC 2002 sealed case does not in any way address this argument at all.
And in regards to statute and what Bush has now with Congress, again I give you the Hamdan decision money quote:
| quote: | Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).
|
Not to mention the Concurring Opinion of Justice Kennedy:
| quote: | | "If the President has exceeded these [Congressional] limits, this becomes a case of conflict between Presidential and congressional action . . . And '[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.'" |
Which Judge Roberts fully agreed with during his confirmation hearings back in 2005:
| quote: | If the president is acting in an area where Congress is supportive -- expressly supportive of his action -- the president's power is at its maximum. If the president is acting in an area such as you postulate under the Bybee, memo where the president is acting contrary to congressional authority, what justice Jackson said is, the president's authority is at its lowest ebb.
http://www.veiled-chameleon.com/web...ves/000204.html
|
Also interesting to note how the nonpartisan Congressional Research Report said essentially the exact same thing in regards to POTUS powers at their “lowest ebb”:
http://www.opencrs.com/document/M20060105
Pretty clear to me what they’re saying here.
| quote: | | Youngstown isn't even mentioned in the FISC's ruling for precedent and the extent of the Executive power. |
Why would it? FISC wasn't even examining this question, so there's no reason they would cite it.
| quote: | | Sealed Case No. 02-001 was not about whether Bush had overstepped his bounds. it was about whether the courts had overstepped their bounds. the FISC ruled affirmatively in favor of Bush. |
I’m not presenting an argument that this case stated anything of the sort. It was you who is citing an opinion in dictum from this case in order to defend whether or not Bush has overstepped his bounds and stating that this case gives Bush inherent authority to bypass FISA, not me. I was the one who pointed out that not only are you incorrect with the statement being made (it appears much more pre-FISA), not only is it pure dicta and holds no value of precedence EVEN IF it means what you want it to mean, but that the court wasn’t even arguing this in the first place.
___________________
Whence September dusk grows crisper still,
with leaves all crimson conquered,
I yearn to shout,
and dance about,
and stick pickles in my honker...
Last edited by MisterOpus1 on Jun-24-2008 at 16:59
|
you have Osama I mean Obama that carries the title of the most liberal man in the senate, a title in which he carries proudly. I think the Dems can take this election this year, but if they do I would have preferred Hillary instead of Obama
