Strengthening Constitutional Self-Government

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NSA electronic intercepts

Is the NSA electronic intercept program illegal? Powerline doesn’t think so. Long and elaborate briefing (these guys are lawyers). File it for later review (and combat). Ted Kennedy thinks it is illegal, and defends the Constitution against "King" George.

Discussions - 9 Comments

Hinderaker’s analysis is pretty weak. Don’t be afraid to read it now. It’s a quick read, slightly difficulty only difficult because of the leaps of logic.

He cites a few lower court cases, most of them pre-FISA, and he cites dicta of questionable relevance and weight. The Supreme Court cases he cites are no help for establishing the proposition that the President has inherent authority to conduct domestic surveillance in contravention of federal criminal law. The use of Hamdi in particular is disingenuous since the Court explicitly decided not to rule on any issue involving inherent powers, and it’s not clear how a case that rules that the administration can’t detain a citizen indefinitely without a hearing can be read as authority for the proposition that a president can engage in otherwise illegal surveilance.

Put more plainly, none of the cases actually hold or establish or argue for the claim that a domestic surveillance program that would otherwise be illegal is legal because the President ordered it. It’s one thing to say that the cases leave the question open and still difficult, and another to say, as Hinderaker does, with his characteristic hyperbole, that there is "no question" that the President’s order was constitutional.

So, I must know, why do they call him ’Ted’? Article was drivel in my opinion.

Oh surprise, surprise! Powerline doesn’t think so. If Bush walked down Pennsylvania Ave. and bludgeoned to death with a crowbar the first small child he saw, the good boys at Powerline would ask us to reconsider whether the Prez had really overextended his executive privilege. And being lawyers and all (WOW!!) they’d even give us some citations.

The bloggers here link to Powerline so often, I’m waiting for the day when I click to come here (as my semi-regular masochistic ritual) and I’m just automatically redirected to Powerline. I suppose it might save Ashbrook some money.

constitutional powers don’t depend on the Supreme Court or Congress saying he has them. That’s why they’re called "inherent." That’s why Lincoln felt free--indeed perhaps even obligated--to ignore Taney’s ruling in Ex parte Merryman. As it happens, the post-9/11 use of force resolution gives Bush authority to conduct this surveillance so there’s no need to rest purely on inherent powers--yet. But the inherent presidential powers are there.

that I’m not disturbed and disappointed by the President’s behavior here. He should have, of course, simply got the necessary court orders before doing this.

If you put me to it, is the president right on this? It’s very complicated. I think he has...he probably has the better argument. . . .

[T]he president believes here that these are very sensitive Constitutional prerogatives. And this isn’t a Republican or Democratic thing. This is something that cuts across political affiliations of the president. And so the notion that in a case as sensitive as this one, he is under a legal responsibility to go through something that may be more time consuming than appears, may be more leaky than appears. Even if he doesn’t think it’s likely to be leaky, that’s something that a president is not likely to think is necessary. . . .

[T]here are a couple of possibilities. One is that we should interpret FISA conformably with the president’s Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn’t compromise the president’s Constitutional power. And that’s very reasonable, given the fact that there’s an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don’t think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.

"It must be very strange to be President Bush. A man of extraordinary vision and brilliance approaching to genius, he can’t get anyone to notice. He is like a great painter or musician who is ahead of his time.."
John Hinderaker, 7/28/05. John Hinderaker has no credibility.

So, tom-pain-in-the-ass, because he makes comments that you don’t agree with, "he has no credibility"?

As far as I am concerned the executive still has too little power. Of course I also support torture. But hey if you guys want to emasculate the armed forces and the executive and fight a soft war and then bitch and moan by all means do so.

As far as I am concerned "Rights" don’t apply to criminals. McCain is certainly an honorable guy beyond the reach of my meager criticism, but it is precisely in his grandeur that he fails. He wants to make it a a question of what our actions say about us. Are we cruel or humane? I say you have to be cruel in war and humane in peace. Kindness in war is no more admirable than moderation in the defense of liberty, which as we know is no virtue.

This war has been plagued by being soft from the get go, and liberals only want to make it softer. What utility? What freedom is gainned by suppressing the means available to the executive in carrying out this mission?

Seriously, lets do this right or get out now! By get out now I mean withdraw as prudently as possible, while maintaining permanent duty stations in BIOP Iraq as well as the current one in Arifjan, Kuwait. I think the IP can run things for the most part and most Iraqi’s want us to leave. The sooner we can get out the sooner we reverse the declining of the Hearts+Minds campaign. I don’t think it will be disasterous, and to the degree it is there would be no way of proving the contending view that the opposite scenario would have been less so. This isn’t to say that we won’t be here for 10 more years, we will.

If Democrats got their way poor old George would be reduced to only prayer, he would have to depend upon God to give him the answers because he couldn’t listen in to suspected terrorists or torture them to gain information. Of course as Joe would be quick to point out the democrats would also come after prayer.

Drug testing is far more invasive and destructive to civil liberties than listening in on terrorists, and congress at least mannaged to strong arm baseball into adopting very broadly construed drug testing. Where was the outrage? That the gov can tell you what health supplements you can and cannot take, that an industry that has spawned new products that actually increase the freedom of individuals (the possibility even for the average pencil-neck to get a superman V shape) that this industry is under fire and we arrest U.S. citizens who go to mexico to buy steroids, that the freedom to shape ones very body is being destroyed, as effective and safe supplements are being taken off shelves while the freedom of a terrorist to use modern telecommunication equipment for force against americans citizens is being upheld and defended in a time of war is unconsionable. Argh! Seriously I wonder! Merry X-mas metro-sexual america!

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