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DOJ Brief on NSA Surveillance Program:
The Justice Department has published a 42-page defense of the NSA's domestic surveillance program. The new document is basically an appellate brief filed in the Court of Public Opinion. It expands on arguments made in cursory form in the prior DOJ letter to Capitol Hill, and tries to make the case that the surveillance program is legal. In this post, I want to start by just summarizing the DOJ argument. I hope to respond to specific parts of the argument, but it's not something to roll off quickly: the 42-page brief is chocked full of legal citations, including many authorities I have never read, and it's going to take some time before we can unpack the argument carefully and see whether it measures up.

  Here is the administration's argument in a nutshell:

  First, the President has inherent constitutional authority to order foreign intelligence surveillance monitoring. The President's core job is to protect the country against foreign attack. The 9/11 attacks made this interest particularly strong: Al Qaeda is a clandestine enemy, and we need to gather intelligence to stop them. The Authorization to Use Military Force further emphasized this power: it brought foreign intelligence surveillance from Steel Seizures Category II to a Steel Seizures Category I, in which the President's authority is at a maximum. The AUMF confirms and bolsters the President's authority; under the test announced in Justice O'Connor's concurrence in Hamdi, foreign intelligence surveillance is a classic "fundamental incident of war" that the AUMF authorizes. The combination of the President's Commander-in-Chief power and Congress's explicit authoritization in the AUMF gives the President full authority to conduct this monitoring.

  Further, the monitoring doesn't violate FISA and also complies with the Fourth Amendment. FISA itself is on fragile constitutional ground, and in any event the AUMF is a "statute" that authorizes the monitoring. Further, the so-called exclusivity provision of the wiretap act, 18 U.S.C. 2511(2)(f), doesn't trump this commonsense result. The legislative history of the section was focused on the notion of Congressional authorization, which the AUMF provided, and a contrary reading would create serious constitutional questions. The canon of constitutional avoidance requires construing the statutes to allow this sort of surveillance: the constitutionality of a statutory prohibition on such monitoring presents very difficult questions, as the NSA activities lie at the core of the Commander in Chief power. There are few guideposts here, and courts should construe the statute in a way to avoid having to reach these difficult constitutional questions. FISA is unconstitutional to the extent it directly interferes with the President's constitutional duty, and it would be prudent to construe the statute in a way that avoids these constitutional questions.

  Finally, the monitoring program fits within the Fourth Amendment "special needs" exception. The rule here is reasonableness, which requires a balancing of governmental and privacy interests. The program is reasonable: the government's interest in thwarting a future attack is overwhelming, and the monitoring itself has been tailored and subject to considerable internal review.

  Anyway, that's the basic argument. I hope to post some analysis of it soon.
Mary Katherine Day-Petrano (mail):
A DOJ defense + a speech by the VP + a new tape by OBL. What timing.
1.20.2006 12:31am
Just an Observer:
With the caveat that I have made only a once-through read, here are my first impressions:

I would say the new administration "white paper" has considerably more heft than anything released before. Although the new document follows basically the same outline of argument as the DOJ has done previously, it fleshes it out and fills in some holes on points previously not addressed.

Overall, I think the administration case continues to hinge primarily on the statutory argument that the 2001 AUMF resolution authorized the NSA surveillance.

I think they have beefed up their previous arguments that intelligence surveillance is "fundamental incident of the use of force," the key phrase from Hamdi v Rumsfeld.

On the constitutional issue, the administration lawyers cite the Youngstown framework, as it has done previously — in the context of the optimistic scenario that they win on the statutory issue, which would place the case under Jackson’s Category 1 instead of Category 3.

But now, they hedge their bets by arguing that Youngstown might not really apply anyway. The Curtis Wright case also is cited.

Importantly, the white paper finally makes the explicit claim that FISA as applied might be unconstitutional.

In addition, the white paper for the first time addresses the fact that FISA explicitly provided for the contingency of war by providing a 15-day window of warrantless wiretapping to allow time for amending the law. As I read it, the government’s primary rationale for that point ultimately relies on the argument that the law was implicitly amended by the AUMF.

Like the previous outline of the administration case, the argument is structured top-down: The President has inherent Article II authority to do all this, which in turn is supplemented by the statutory authority claimed. I think most any judge would follow Judge Alito’s analytical method of deciding the statutory questions first, moving to the constitutional issues only if necessary.
1.20.2006 12:40am
Jack John (mail):

The President has inherent Article II authority to do all this, which in turn is supplemented by the statutory authority claimed. I think most any judge would follow Judge Alito’s analytical method of deciding the statutory questions first, moving to the constitutional issues only if necessary.



1. The white paper addresses that by noting that the canon of constitutional avoidance outweighs other canons.

2. I would note that the white paper is in great part identical to arguments I have made here before (go check!). I guess I'm not such an idiot, after all.
1.20.2006 2:03am
Defending the Indefensible:
The canon of constitutional avoidance can also be applied to presume the constitutionality of FISA, and determine that the Article II powers claimed by the President as Commander-in-Chief do not exceed the Article I powers of the Congress to make Rules for the Government and Regulation of the land and naval Forces. No constitutional problem here at all.
1.20.2006 2:10am
Katherine:
I didn't read it with a fine-tooth comb, so I can't 100% swear to this, but I don't think they so much as mention Congress' power to make rules for the government and regulation of the land and naval forces.

But hey, who needs directly on point clauses of the U.S. Constitution when you have Silbermann's dicta, out of context quotations from the Federalist papers, and obscure old OLC opinions.
1.20.2006 2:37am
The Orginal TS (mail):
A couple of comments. First, the AUMF resolution just won't get the White House where it needs to go. Read it carefully. It simply cannot be construed to authorize the broad surveillance program that apparently took place. At best, it can be construed to authorize surveillance of known Al Qaeda operatives. It doesn't authorize any actions, military or otherwise, against non-Al Qaeda terrorist groups and it certainly doesn't authorize surveillance of innocent people on the off-chance that they might know somebody who knows somebody who has some affiliation with a known Al Qaeda operative.

Second, all this is make-weight. At best, these arguments get you around FISA. But the only real issue is whether this surveillance violates the Fourth Amendment. I'm glad to see that the President is not, apparently, claiming that he isn't bound by the Fourth Amendment when acting as CINC. If they're admitting there is a "reasonableness" test, then they're admitting (hopefully) that a court has authority to review the program's constitutionality. That admission, if, indeed, it really is, goes a long way towards assauging many of my concerns.

Finally, what took them so long? You'd think they would have had all this analysis done before they started the program. But the delay in producing this document suggests that it's something they've come up with in the weeks since word of the program got out. I would, sadly, not be too surprised if this administration had surveilled first and asked questions later.
1.20.2006 2:39am
Wintermute (www):
A neglected point in all this is that neither the President nor the Congress can violate the Fourth Amendment, which rules over any part of Article I or II and anything else but a later-passed Amendment.

If Congress tries to provide greater protection than the 4th does -- as some state constitutions (as construed) do -- then a conflict between those greater protections and the President's powers can arise, a conflict which will be settled by Article III courts, whose judgment must be accepted by the other branches, else we have either an ongoing abuse of the Constitution or a resolution by impeachment of the President (and Vice-President, if need be) or of enough members of the Court to change its judgment.

The Court may look both to acts of Congress and to assertions of executive necessity, as expressions of the national sense, in ratifying procedures enforcing and/or relaxing the warrant requirement, and creating exceptions to it. FISA is a mixed bag in just this respect, purportedly relaxing traditional warrant requirements, but not relaxing them enough to suit the current President.

It is up to the Court to say what the Fourth Amendment requires. And dictum in a single Justice's concurrence about "lowest ebb," particularly in a 6-3 decision where his vote could have been dispensed with, is not the law.

In the recent penumbra of newbie John Roberts' anti-"federalist," statist opinion in the assisted suicide case, I cross my fingers, remember the Pentagon Papers and Watergate tapes case outcomes, and pray for our 217-year-old experiment in liberty.
1.20.2006 2:44am
Wintermute (www):
Oh, and did anyone address my previous question about whether Congress can "undeclare" war (or modify its existing AUMF) by a simple majority not subject to veto? I never heard it said that a Congressional declaration of war is subject to veto in the first place, so how could a repeal or modification be?
1.20.2006 2:49am
Fishbane (mail):
I never heard it said that a Congressional declaration of war is subject to veto in the first place, so how could a repeal or modification be?

Well, presumably it is technically subject to veto; I know of no reason why it wouldn't be. I think this just tends to fall into the category of "things that, while possible, just don't happen," similar to refusing gifts from Mom and large campaign donations that aren't yet being subjected to scrutiny.
1.20.2006 3:14am
KMAJ (mail):
JaO,

As a layman reading it, it makes a sound and compelling argument. In order to make a counter case, one would somehow have to make the illogical conclusion that intelligence gathering was not a "fundamental incident of the use of force" and protecting the country.

I did not find their citation of Youngstown to be hedging their bets. Jackson's tripartite categories was only an instrument used to make their decision, not the decision itself. Their argument was that Youngstown was a category three case because Truman infringed on the Constitutional authority of the legislative branch in domestic affairs, a labor dispute. Because of the AUMF and the nature of intelligence gathering as fundamental to the use of force, the NSA surveillance is category 1. That was the distinction they were making, not hedging.
1.20.2006 3:52am
Noah Klein (mail):
KMAJ:

Your arguments seem to hinge on two factors: 1) Spying on one's on citizens is "a fundamental incident of war." 2) An implicit authorization can overrule an explicit restriction.

1) What is happening in this program is the spying on American citizens, where evidence of their terrorist ties do not even rise to the level of probable cause. Thus, there really is no evidence to demonstrate that they are any closer to terrorism than you or I. Why would spying on one's own citizens be a "fundamental incident of war?" Citizens, who have done nothing wrong and who are just assumed by the government to have some tenuous tie to terrorism (how's that for alliteration), should not be the subject of coercive government action. National security has been the tool of tryants throughout history.

2) You appear to say, as the DOJ "white paper" says, that an implicit authorization can overrule an explicit restriction. This is new, I think, in jurisprudence. How does one law, that does not even address the situation of domestic spying, overcome another law which specifically addresses the issue of domestic spying, especially a law that was amended after the first law? Finally, I really think that the Original TS says it very well when he describes who it seems the AUMF is targeted against. Here is what he says again:

"It simply cannot be construed to authorize the broad surveillance program that apparently took place. At best, it can be construed to authorize surveillance of known Al Qaeda operatives. It doesn't authorize any actions, military or otherwise, against non-Al Qaeda terrorist groups and it certainly doesn't authorize surveillance of innocent people on the off-chance that they might know somebody who knows somebody who has some affiliation with a known Al Qaeda operative."


This memo seems to flesh out the arguments made by the administration in late December and it seems to addresses some of the gaps that the CRS and other critical documents have pointed. Yet the argument made by the administration appears to still be weak. First, they say that the Article II powers are supreme without even addressing the fact that Article I gives powers to Congress to regulate war-making. Second, the DOJ says that the constitutional issue is not important because the Congress implicitly granted the administration the authority to do this. Yet that also is not logical, because I have never heard of an piece of legislation implicitly revoking or overruling an explicit regulation made by a past piece of legislation. If a court has made such a ruling, I would love to see it.

Thus I don't know why this is really change in where the situation was yesterday. The administration is still making an argument that only the administration and a very few experts have made. Most of the legal community has appeared to reject this argument, even if the still say that the administration's NSA program was legal. As this issue has developed over the past month, I have now discovered three ways for an ultimate resolutions. Congress's hearings resulting in a confirmation or a rejection of the legality of this program. The FISA court making a memorandum opinion, as they did in 2002 or someone with standing taking this issue to the courts. I think it will be interesting to see if any disapprobation against the administration will resolve this or if he will pull a Jackson, if you want you enforce it.

Noah
1.20.2006 4:47am
KMAJ (mail):
Noah,

I think you mistate and distort the case when claim 'spying on one's citizens' without the descriptive who have contact with known or suspected terrorists. There has no been one allegation of domestic spying without a warrant, only on calls that have one end of the conversation on foreign soil. You can argue that is a grey area, but the fact that one end of the conversation is a known or suspected terrorist shifts it out of your favor.

There are plenty of constitutional scholars who would disagree with your characterization of 'explicit restriction' and others who proffer FISA is borderline unconstitutional, especially if it reaches into war time. As the DOJ stated, O'Connor's plurality in Hamdi reveals the light in which the SCOTUS sees the AUMF. It is patently illogical to try to separate intelligence gathering from the use of force in time of war. That would be a clear violation of the constitutional separation of powers.

TS's description would lead to another attack in this country, only known ? And what about the people they call ? We don't know for sure, so just let them run free ? Yikes !! The disconnect from reality involved in such an assertion is beyond the pale. Why don't we just give 'unknown' terrorists an enter the country free card ? I am sorry, Noah, but that is a pre-9/11 perspective in a post-9/11 world.

To defend and protect this country, we have to be right 100% of the time, the terrorists only have to be right once and thousands or more could die if it was a nuke in a major city and bring the economy to its knees.

I am sure that those who would die in such an attack, and their families would find great solace in the fact that some people put civil liberty over their security and their right to life. You are failing the balance test.

Congress will not take the action you described, any party that did that would be seen as weak on defense, FISA, after their rebuke in Sealed Case, is not likely to inject itself in politics, which leaves you with finding someone with standing to file suit.

I think that if this makes it to the Supreme Court, many on the left will be very disappointed.
1.20.2006 5:28am
rick:
Ahh, yes. I was waiting for the, "If you don't support warrantless wiretapping, blood is on your hands" argument. Very informative.
1.20.2006 8:27am
Smithy (mail):
It seems to me that this shows definitively that the president had the legal authority to conduct wire taps without a court order. I hope this ends all the "Bush should be impeached" hogwash from the left. But I fear it won't.
1.20.2006 8:30am
PersonFromPorlock:
At the heart of the administration's policy is the claim that the President gains authority when functioning as CinC. But as CinC he is the senior officer in a military which is clearly subordinate to Congress, and unless Article II Section Eight is meaningless, as CinC he is plainly also subordinate to Congress.

This is so incompatible with the Separation of Powers that we can only assume that the office of CinC is separate from the office of President, albeit both are occupied by the same person. The administration's claim of enhanced Presidential power in time of war therefore fails because first, the CinC has less autonomy than the President and second, because the powers of the one job don't transfer to the other -- they are separate jobs.
1.20.2006 8:40am
Argle (mail) (www):
To defend and protect this country, we have to be right 100% of the time, the terrorists only have to be right once and thousands or more could die

Actually, I think to defend and protect the country, we first have to make sure it stays the same kind of country, and that the actions we take to defend it don't turn it into something much worse. Further, while it's trivially true that "we [you mean the Governement] have to be right 100% of the time" in order to prevent another attack, this doesn't have the normative weight you imagine. It is fantasy to think that the government can eliminate the chance of their being a large scale terrorist attack in a huge country of nearly 300 million people.

am sure that those who would die in such an attack, and their families would find great solace in the fact that some people put civil liberty over their security and their right to life. You are failing the balance test.

This is just fear-mongering. We make quite vicious tradeoffs between civil liberty and security all the time: forty thousand people a year are killed in road accidents in this country, leaving grieving families behind. That's an order of magnitude more violent deaths every year than the 9/11 attacks. You just don't think about them, because they are spread out over a large area. The government could in principle prevent most of them, if it were prepared to spend enough money and infringe enough liberty. Of course the suggestion it ought to do so is ridiculous, even if raising the driving age to 25 and lowering the speed limit to 45 might be guaranteed to save, say, a quarter of a million Americans over the course of a decade.

Sure, we gave the President a free hand to monitor phone calls and bank transactions might might lower the risk, but the cost would be enormous in terms of sheer cash, the large number of false-positives that would inevitably pop up (a dry term for "having your life wrecked by a government error"), and the invitation to abuse the system for other ends. The United States is a country whose citizens -- unlike those of every other advanced capitalist democracy -- don't trust the state to provide them with a universal health care system, and yet they're happy to sign away their rights because they were attacked once. Remarkable.
1.20.2006 8:40am
John Lederer (mail):
Just offhand observations:

(1) I think the memo is very strong in arguing that the surveillance is historically, ala Hamdi, an incident of waging war, Compelling job on historical precedent and logic.

(2) Footnotes 5 and 6 fascinate me

(3) I think the memo is weakest in trying to fashion a logical argument around the 15 day post war provision. I found that part not very convincing.
1.20.2006 8:58am
SteveW:
TS's description would lead to another attack in this country, only known ? And what about the people they call ? We don't know for sure, so just let them run free ? Yikes !! The disconnect from reality involved in such an assertion is beyond the pale. Why don't we just give 'unknown' terrorists an enter the country free card ? I am sorry, Noah, but that is a pre-9/11 perspective in a post-9/11 world.

The issue is whether there should be warrantless domestic electronic surveillance, not just whether there should be domestic electronic surveillance.

I'm still confused about why the administration did not request warrants from the FISA court. After a quick scan, the new white paper, at most, justifies a reasonable belief by those conducting the surveillance that they were acting within the law. If the law is, in fact, as unclear as the white paper suggests, then wouldn't it have been best to err on the side of caution?

The white paper does not substantiate the confidence that the Attorney General expressed in his earlier press conference.
1.20.2006 9:03am
Freder Frederson (mail):
While we are discussing Constitutional technicalities, let's get one thing straight. No matter how many times the President calls it a "war", we are not at war as a matter of Constitutional law. The Congress did not declare war on anybody, not even Iraq. You can't be at war against an ideology or a movement or a loosely organized group, it's a nonsequitor. You may gloss over it all you want and claim it is the moral equivalent of war or a new kind of war, but for a bunch of originalists or strict constructionists, that is rather an odd argument.
1.20.2006 9:08am
Just an Observer:
KMAJ: "I think you mistate and distort the case when claim 'spying on one's citizens' without the descriptive who have contact with known or suspected terrorists. There has no been one allegation of domestic spying without a warrant, only on calls that have one end of the conversation on foreign soil. You can argue that is a grey area, but the fact that one end of the conversation is a known or suspected terrorist shifts it out of your favor."

Not only have there been "allegations of domestic spying without a warrant," Attorney General Gonzales has conceded that this has occurred. Under FISA, the fact that the citizens being surveilled may be suspected of having ties to terrorists does not excuse the requirement for a warrant. In fact, if the citizens are agents of foreign powers such as terrorist groups, the purpose of FISA is precisely to regulate such surveillance.

It is not Noah, but you, who distorts the case.
1.20.2006 9:16am
Neal Lang (mail):
The canon of constitutional avoidance can also be applied to presume the constitutionality of FISA, and determine that the Article II powers claimed by the President as Commander-in-Chief do not exceed the Article I powers of the Congress to make Rules for the Government and Regulation of the land and naval Forces. No constitutional problem here at all.

With regards to the so-called Article I "powers of Congress to make... Regulation of the land and naval Forces", please see just how Congress elected to exercise this particular Article I "power" by referencing Title 10 of the US Code, to wit:
TITLE 10—ARMED FORCES Subtitle A—General Military Law PART I—ORGANIZATION AND GENERAL MILITARY POWERS CHAPTER 3—GENERAL POWERS AND FUNCTIONS § 121. Regulations

TITLE 10 Subtitle A PART I CHAPTER 3

§ 121. Regulations

The President may prescribe regulations to carry out his functions, powers, and duties under this title.

It would appear that the Congress "punted" to the Commander-in-Chief on this one. Perhaps the Congress understood that Constitutionally, it made more sense for the President to make regulations for Armed Forces the Constitution mandates that he commands.

Guys, this ain't "rocket science"!
1.20.2006 9:41am
JohnAnnArbor:
While we are discussing Constitutional technicalities, let's get one thing straight. No matter how many times the President calls it a "war", we are not at war as a matter of Constitutional law. The Congress did not declare war on anybody, not even Iraq. You can't be at war against an ideology or a movement or a loosely organized group, it's a nonsequitor. You may gloss over it all you want and claim it is the moral equivalent of war or a new kind of war, but for a bunch of originalists or strict constructionists, that is rather an odd argument.

They're trying to kill as many of us as they can. We're trying to stop them. In a sense, it's not like a "traditional" war, where the opponent usually only wants to kill as many as necessary to accomplish a territorial or political goal. It's worse.
1.20.2006 9:42am
Wikstrom (mail):
The prime issue here, of course, is the rule-of-law itself.

Is the 4th Amendment fundamantal American 'law' .... or merely a general administrative guideline for Federal employees to interpret & obey at their own discretion ?

>'The Orginal TS' correctly observes: "... the only real issue is whether this surveillance violates the Fourth Amendment."

>'Wintermute' correctly notes: "... neither the President nor the Congress can violate the Fourth Amendment, which rules over any part of Article I or II and anything else but a later-passed Amendment." However, 'Wintermute' mistakenly concludes: "It is up to the Court {Federal employees} to say what the Fourth Amendment requires... "

>'Orin Kerr' mistakenly reads the 4th Amendment, finding previously undiscovered text: ".... the monitoring program fits within the Fourth Amendment "special needs" exception.

——————————————-

Of what value is written law in today's "United States" ?
1.20.2006 9:47am
Jack John (mail):
It is rather clear to me that a number of you did not read all 42 pages, and are rehashing arguments that are decisively dealt with by the white paper. If you want to respond to it, I suggest reading it -- all of it -- and in your comments referring specifically to the page and paragraph that irks you, so we may all refer back and follow along. If you have anything useful to say about a particular argument, it might do you well to read all the sources cited to as well. Moreover, one might stop and think why OLC opinions WRITTEN BY ROBERT JACKSON are cited, instead of simply calling them old and obscure, as if that makes them less persuasive or influential in our reading of Youngstown. Some of the retorts to this carping is obvious, so I just won't bother.
1.20.2006 9:49am
AF:
I'm not that interested in the Article II and AUMF arguments, which, no matter how much lipstick the DOJ puts on them, are still pigs.

What intrigues me is footnote 5 on page 17, which states, "To avoid revealing details about the operation of the program, it is assumed for purposes of this paper that the activities described by the President constitute 'electronic surveillance,' as defined by FISA, 50 U.S.C. § 1801(f)."

As fellow Orin Kerr fans will remember, Orin has previously said that the Article II and AUMF arguments are unconvincing, but that there is a possibility the program did not violate FISA in the first place because it did not involve electronic surveillance under the statute. The problem with that suggestion has been that the administration has defended the program under the assumption that it involved electronic surveillance, and, in fact, Attorney General Gonzales has conceded that it did. This footnote appears to retreat from that concession, thus lending some plausibility to Orin's speculations.

An interesting question is whether, if this program is ever challenged in court, the administration will stick to the arguments in the white paper, or make additional ones in secret. If it sticks to the white paper, we have a sort of if-a-tree-falls-in-the-woods question: if a program has a legitimate legal justification, but no court or adversary is ever told what it is, is it legal?
1.20.2006 10:10am
A.S.:
Noah Klein writes: Yet the argument made by the administration appears to still be weak. First, they say that the Article II powers are supreme without even addressing the fact that Article I gives powers to Congress to regulate war-making.

Read the footnotes!

Footnote 15 deals with this point explicitly.

Second, the DOJ says that the constitutional issue is not important because the Congress implicitly granted the administration the authority to do this. Yet that also is not logical, because I have never heard of an piece of legislation implicitly revoking or overruling an explicit regulation made by a past piece of legislation. If a court has made such a ruling, I would love to see it.

As stated above, I think, this is NOT what DOJ argues. FISA was nt "overrul[ed]" or "revok[ed]". Rather, FISA's requirement that another statute authorize the surveillance was satisfied. There is an enormous difference between satisfying a statute's requirements and "overruling" or "revoking" the statute.

Moreover, READ THE FOOTNOTES!

EVEN IF it were found that authority for the program requires that the AUMF "revok[e] or overrul[e]" (we lawyers call this "repeal"), the normal presumption against implied repeals is overcome here. Read Footnote 21.
1.20.2006 10:11am
Neal Lang (mail):
A couple of comments. First, the AUMF resolution just won't get the White House where it needs to go. Read it carefully. It simply cannot be construed to authorize the broad surveillance program that apparently took place.

On the basis that what - "Combat intelligence" is not necessary in order for the Commander-in-Chief to be able "to use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons". Now that's a real stretch!
At best, it can be construed to authorize surveillance of known Al Qaeda operatives. It doesn't authorize any actions, military or otherwise, against non-Al Qaeda terrorist groups and it certainly doesn't authorize surveillance of innocent people on the off-chance that they might know somebody who knows somebody who has some affiliation with a known Al Qaeda operative.

Your position being that by this AUMF Congress was merely permitting the President "to use all necessary force" only against "known Al Qaeda operatives" who were known on September 18, 2001. If so, why did Congress say in the AUMF "he determines", with reference to the "persons, etc." involved in the 9/11/2001 attacks "any future acts of international terrorism against the United States ... by such persons"? Without maximum latitude in executing "electronic surveillance", just how do you the Congress thought the Commander-in-Chief would "determine" just what "persons" he should "use all necessary force" against? Perhaps the President should merely turn such "determination" over to the FISC and wait for them to decide?
But the only real issue is whether this surveillance violates the Fourth Amendment.

Through what flight of fancy do you construe that the "4th Amendment" to grant a "right of expectation of privacy" to "enemy agents" in this country who use the telephone system as their chosen means of "CCC" (Command, Control and Communications) with their foreign based command structure in order to plot acts of terror and sabotage against the United States?
If they're admitting there is a "reasonableness" test, then they're admitting (hopefully) that a court has authority to review the program's constitutionality.

I believ the "reasonableness" test, is whether or not these "enemy agent" can reasonable expect their CCC conversations with their foreign controls to be free from "surveillance" by the US Military. As Forrest Gump's mom said: "Stupid is as stupid does!"
Finally, what took them so long? You'd think they would have had all this analysis done before they started the program. But the delay in producing this document suggests that it's something they've come up with in the weeks since word of the program got out. I would, sadly, not be too surprised if this administration had surveilled first and asked questions later.

Now just how can you make a case for this argument when the facts show that from the very day the New York Times jepardized National Security by publishing their "expose'" on the "means, methods, and sources" of our country's most effective "intelligence gathering" program against our enemy, the terrorists, who are plotting to bring down our country and harm the Public safety, the President has stated that the NSA "electronic surveillance" program was completely Constitutional?
1.20.2006 10:21am
A.S.:
I've got to say, while I admit I've always thought the Article II claims were strong, the brief really is quite good on those points. I thought that the argument that warrantless surveillance is a fundamental incident of war, which builds on Cass Sunstein's prior arguments, was extremely strong.

Moreover, the brief made the point that, for good reason (courts rightly avoid these issues), there is only a single case that deals with whether Congress could interfere with a fundamental incident of war: In re Sealed Case, which explicitly supports the Administration's position (albeit in dicta). Since Youngstown does not deal with the issue at hand here (it dealt with a situation in which the President's actions were nowhere even close to a fundamental incident of war), it easily distinguishable. Accordingly, the are no cases - zero - that in any way support that Congress could interfere with the President's actions in regards to a fundamental incidents of war.

To me, it should be pretty clear that where there are no cases that offer any support for the case against the Article II argument, while the IS a case that has language directly on point in support of the Article II argument, the President is entitled to rely on that case.

My personal favorite part of the brief was the citation to Bill Eskridge, a far leftie (and my old professor), who literally wrote the book on statutory interpretation. And Eskridge wrote: "describ[ed the '[s]uper-strong rule against congressional interference with the President’s authority over foreign affairs and national security')." To me, if even Bill Eskridge is on your side (although I certainly now expect him to distance himself from this!), you've got a winning case.
1.20.2006 10:25am
A.S.:
Not only have there been "allegations of domestic spying without a warrant," Attorney General Gonzales has conceded that this has occurred.

That's just plain false. The program does NOT involve "domestic" surveillance, which was covered by Keith. The program involves international surveillance - that is, surveillance of communications that go between this country and another country.
1.20.2006 10:39am
Neal Lang (mail):
A neglected point in all this is that neither the President nor the Congress can violate the Fourth Amendment, which rules over any part of Article I or II and anything else but a later-passed Amendment.

What does the Constitution state in the "plain language" of the 4th Amendment?
Article the sixth [Amendment IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Kindly point out the part that prohibits the Commander-in-Chief from gathering "intelligence" by "electronic surveillance" on "enemy agents" during a time of war.
1.20.2006 10:40am
Nick (www):
In general, I've been pretty open to the arguments presented to justify this intelligence gathering, and have tried to give the President the benefit of the doubt. As I've read all the government papers, and looked at the pro and con arguments... only one question lingers that nobody seems to answer... and I think really comes to a head after reading this last DOJ paper.

How long will this last? It would seem that the DOJ is saying that the President's Constitutional powers give him express authority, especially in a time of war... and that overall it is a reasonable assertion of his power. However, I would think that one important aspect of something being reasonable, is how long something lasts. The longer you intend to carry out an activity, the more scrutiny it must fall under, and if you intend to make this a very long term invasion, the reasonableness argument becomes weaker in my mind.

I don't think anyone has really talked about this. Does this elevation from a Level II argument to a Level I argument last as long as we're involved in the WoT, as long as we have boots in Iraq or Afghanistan? Does the length of time never become an issue here? I'm not a legal expert here at all... and am very curious about this aspect of it.
1.20.2006 10:43am
Bushrod, J. (mail):
As Wikstrom notes above, no matter how you slice and dice the white paper, the question invariably boils down to a 4th Amendment question:

Does the 4th Amendment mean something different when an American citizen is in contact with a suspected foreign "adversary" [the adminstration's word] possibly discussing an act of treason?

The administration's central, fundamental premise is that the United States is involved in a ongoing "armed conflict" with this adversary: "One attack already has taken thousands of lives and placed the Nation in state of armed conflict." Memo at 40.

What's particularly interesting is the Administration draws a clear distinction between foreign adversaries and domestic adversaries, in deference to US v. US District Court, 407 U.S. 297 (1972) (the "Keith" case).

On the other hand, the adminstration repeatedly cites The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863), for the proposition that the president, as C-in-C, has a constitutional duty to use force to repel force in protection of the nation.

The Prize Cases, obviously, arose during the Civil War. And the SCt's language expressly relies on the "law of nations" to conclude that for a state of "war" to exist -- which kicks in the president's C-in-C powers -- a foreign sovereign or foreign adversary need not be involved. Id. at 667-68.

According to The Prize Cases, the president's full C-in-C powers animated by a state of "war" can exist when domestic enemies are involved.

This seems critically important, IMO, because it takes the analysis back to the Keith case -- in which the SCt held that warrantless searches of domestic enemies are unconstitutional.

If the president's C-in-C powers draw no distinction between foreign and domestic enemies, why should the 4th Amendment be read that way insofar as American citizens are concerned when possibly engaged in an act of treason? [No fear-mongering responses, please.]

That's not to say, however, that an alternative scheme cannot be constructed that satisfies the 4th Amendment.

The SCt has approved warrantless "administrative searches" in various contexts (though not for criminal investigations, which this is not anyway). What's required for an administrative-search regime to pass 4th Amendment must are a set of neutral rules -- either statutory or regulatory -- that act as a surrogate for a warrant. See New York v. Burger, 482 U.S. 691, 711-12 (1987).
1.20.2006 10:49am
Just an Observer:
A.S. "That's just plain false. The program does NOT involve 'domestic' surveillance, which was covered by Keith. The program involves international surveillance - that is, surveillance of communications that go between this country and another country."

The program does not involve "domestic" surveillance as covered by Keith, and no one has claimed that it does. Keith involved surveillance of domestic subversion, and held that ordinary Article III warrants are required.

But the NSA program does involve surveillance of U.S. citizens in the United States, and acquisition of intercepts within the United States, as covered by FISA and/or Title III.
1.20.2006 10:55am
margate (mail):
Neal Lang wants to know the part of the 4th Amendment that prohibits electonic surveillance to gather intelligence by the C-in-C during wartime.

It would seem the SCt's opinions in both Katz and the Keith case reject this sort of approach to the 4th Amendment.

Katz involved eavesdropping -- a term no where in the 4th Amendment. And Keith involved intelligence gathering from domestic enemies -- also terms no where included in the 4th Amendment.

On the other hand, Art. I, Sec. 8 is quite explicit about Congress's authority to regulate the armed forces, including its general-in-chief.

In any case, respectfully, Lang's framing of the issue seems like the old argument that Miranda warnings only apply to people named Miranda.
1.20.2006 10:55am
Francis (mail):
To those who believe that the administration is correct:

what are the limits of the President's war-making powers against US citizens?

The Fifth Amendment, for example, prevents the deprivation of life, liberty or property without due process. Since killing the enemy is a far more central aspect of the war making power than surveillance, it would appear that the President could assert the right to seize the assets of citizens and execute citizens without the normal panoply of rights, on the grounds that "due process" during wartime imposes a much lower standard.

it seems to me that once you start granting the executive significant warmaking powers against citizens under the reasonableness clause of the Fourth Amendment, you start giving away a lot of other rights as well.
1.20.2006 10:57am
Neal Lang (mail):
It is up to the Court to say what the Fourth Amendment requires. And dictum in a single Justice's concurrence about "lowest ebb," particularly in a 6-3 decision where his vote could have been dispensed with, is not the law.

Really? Just where is this found in "the People's" Constitution? Likewise, how can the Court change (amend) the Constitution and the 4th Amendment to construe the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" to extend to "electronic communications" without following the Constitutionally mandated method of amending Constitution described in Article V, to wit?
Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions
in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Just where does the "unelected" Court find its Constitutional "authority" to speak on behave of "the People" in regards the Supreme Court's unilateral "power" when it comes to changing (amending) our Constitution.

Why do you supposed the Framers bothered to include Article V if they believed the Constitution they drafted and got ratified allowed the Federal Judiciary to amend the Constitution by mere majority of the Supreme Court Justices?

Why isn't this "power" usurped by the non-elected Federal Judiciary a less serious threat to "the People's" liberty than is the President's "power" a "Commander-in-Chief" to spy on the sworn enemies of our Republic?

Is a Constitution that can be changed on the opinion of 5 unelected Justices truly a "government of laws"?

Why, all of sudden, does the "self-evident truth" of man's Creator endowed rights, require reams of paper in the form of "Judicial Opinions" to interpret and explain?
1.20.2006 11:06am
Neal Lang (mail):
The Fifth Amendment, for example, prevents the deprivation of life, liberty or property without due process.

Accept in the case of a woman's "right of privacy" to choose to murder her unborn child.
1.20.2006 11:09am
Richard Aubrey (mail):
I believe the NSA was spying on bad guys overseas, known from acquiring terrorists' rolodexes and laptops and cellphones.
The US connection comes from two issues, so I hear.
One is that even foreign-to-foreign communications may be routed through a US switching facility. If this is true, it only counts as "domestic spying" for partisan purposes.
The other is that the bad guys are talking to people in the US.
What would you say if the administration said, and this is covered in the law, that they are spying on the bad guys overseas and the US end of it is incidental? I believe they have to dump the info gleaned from the US end after a certain time except for cases of real in imminent danger to life.
Lastly, US persons are covered under FISA and others are not. So a non-US person in the US is not excluded, except when he's included to punch up the numbers for partisan purposes.

Why did they wait so long? Why did the administration seem bored about Mapes' forgeries?
To let people get 'way out on the limb.
1.20.2006 11:19am
Defending the Indefensible:
Neal Lang:
The President may prescribe regulations to carry out his functions, powers, and duties under this title.
It would appear that the Congress "punted" to the Commander-in-Chief on this one. Perhaps the Congress understood that Constitutionally, it made more sense for the President to make regulations for Armed Forces the Constitution mandates that he commands.
So your contention is that Congress may irrevocably delegate to the executive its Article I power to make Rules for the Government and Regulation of the land and naval Forces, and therefore subsequent statutes like FISA are of no force and effect because they have previously surrendered their Constitutional authority?
1.20.2006 11:29am
A.S.:
what are the limits of the President's war-making powers against US citizens?

I think the brief answers this important question persuasively.

The brief cites O'Connor's opinion in Hamdi for the proposition that "a state of war is not a blank check for the President," Hamdi 542 US at 536. The President's war-making powers are limited to the "fundamental and accepted incident[s] of the use of military force." And the brief is particularly strong (IMO) in reviewing the evidence that warrantless surveillance of the enemy is one of those fundamental and accepted incidents. Since surveillance of the enemy has throughout history been accepted as a fundamental part of war - and is covered by the laws of war (as is, for example, the detention of enemy fighters covered in Hamdi) - it is part of those Presidential powers.

Accordingly, the Administration makes clear that is does NOT believe that the the President's powers in wartime are unlimited. Rather, they are limited to those items which are so fundamentally accepted as part of war fighting.
1.20.2006 11:30am
Medis:
I've read over the paper carefully, except for the Fourth Amendment section. Overall, there is nothing really new here, but I think the paper is useful in that it clarifies the Administration's thinking. In turn, I think that clarity is useful because it truly sets up "the Constitutional crisis" the Administration's actions have brought about, and hopefully Congress will take note of the sweeping implications of the Administration's arguments as they consider what to do in this case.

A couple more specific comments:

On the statutory issues, we have mostly discussed the merits of these arguments before, and I see no reason to get into them in too much detail. I note, though, that the Administration's analysis repeatedly depends on the notion that one Congress could not bind a future Congress in various ways (eg, by making it impossible for them to amend FISA and Title III without specific reference).

Of course, that entire line of argument is rather beside the point. The issue at hand is not whether Congress COULD amend FISA and Title III, even without specific reference. Rather, the issue is whether Congress actually DID amend FISA and Title III in the 2001 AUMF. And the problem for the Administration is that there is really no evidence for their claim that Congress had that intention, and hence no reason to accept their conclusion that Congress DID amend FISA and Title III simply because they COULD.

I further note the weakness of their argument with respect to the USA-PATRIOT Act, which in fact DID specifically amend FISA. The relevant passages are as follows:

"Some have pointed to the specific amendments to FISA that Congress made shortly after September 11th in the USA PATRIOT Act, Pub. L. No. 107-56, §§ 204, 218, 115 Stat. 272, 281, 291 (2001), to argue that Congress did not contemplate electronic surveillance outside the parameters of FISA. See Memorandum for Members of the House Permanent Select Comm. on Intel. from Jeffrey H. Smith, Re: Legal Authorities Regarding Warrantless Surveillance of U.S. Persons 6-7 (Jan. 3, 2006). The USA PATRIOT Act amendments, however, do not justify giving the AUMF an unnaturally narrow reading. The USA PATRIOT Act amendments made important corrections in the general application of FISA; they were not intended to define the precise incidents of military force that would be available to the President in prosecuting the current armed conflict against al Qaeda and its allies. Many removed long-standing impediments to the effectiveness of FISA that had contributed to the maintenance of an unnecessary 'wall' between foreign intelligence gathering and criminal law enforcement; others were technical clarifications. See In re Sealed Case, 310 F.3d 717, 725-30 (Foreign Int. Surv. Ct. Rev. 2002). The 'wall' had been identified as a significant problem hampering the Government’s efficient use of foreign intelligence information well before the September 11th attacks and in contexts unrelated to terrorism . . . .

Nor do later amendments to FISA undermine the conclusion that the AUMF authorizes electronic surveillance outside the procedures of FISA. Three months after the enactment of the AUMF, Congress enacted certain 'technical amendments' to FISA which, inter alia, extended the time during which the Attorney General may issue an emergency authorization of electronic surveillance from 24 to 72 hours. See Intelligence Authorization Act for Fiscal Year 2002, Pub. L. No. 107-108, § 314, 115 Stat. 1394, 1402 (2001). These modifications to FISA do not in any way undermine Congress’s previous authorization in the AUMF for the President to engage in electronic surveillance outside the parameters of FISA in the specific context of the armed conflict with al Qaeda."

So, the argument is that the USA-PATRIOT Act was simply providing "technical" amendments of FISA, but all that had nothing to do with 9/11 or the general use of electronic surveillance to prevent terrorist acts. Of course, that argument is more than absurd. One could detail how Congress and the Administration itself has always described the USA-PATRIOT Act as providing necessary tools in our ongoing war against international terrorism in general and Al Qaeda in particular. But one could make the argument by simply remembering that "USA-PATRIOT" is an acronym, which stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism."

On the constitutional avoidance issue:

I think the CRS memo did a good job of explaining how the Administration is misapplying this doctrine in general. But I think this new paper is useful because it reveals how sweeping the Administration's constitutional views truly are. Most notably, the Administration's views depend on a very narrow construction of the power of Congress to regulate war under its enumerated powers. That is because without that construction of Congress's enumerated war powers, the President's "inherent" powers regarding surveillance would not be "exclusive" powers, and without them being exclusive powers there is no serious Constitutional question--if FISA was authorized by Congress's enumerated powers and the President's related power is not exclusive, then Congress wins.

So, here is the Administration position on Congress's enumerated powers. They state:

"Executive practice recognizes, consistent with the Constitution, some congressional control over the Executive’s decisions concerning the Armed Forces. See, e.g., U.S. Const. art. I, § 8, cl. 12 (granting Congress power 'to raise and support Armies'). But such examples have not involved congressional attempts to regulate the actual conduct of a military campaign, and there is no comparable textual support for such interference. For example, just before World War II, Attorney General Robert Jackson concluded that the Neutrality Act prohibited President Roosevelt from selling certain armed naval vessels and sending them to Great Britain. See Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39 Op. Att’y Gen. 484, 496 (1940). Jackson’s apparent conclusion that Congress could control the President’s ability to transfer war material does not imply acceptance of direct congressional regulation of the Commander in Chief’s control of the means and methods of engaging the enemy in conflict. Similarly, in Youngstown Sheet &Tube Co. v. Sawyer, the Truman Administration readily conceded that, if Congress had prohibited the seizure of steel mills by statute, Congress’s action would have been controlling. See Brief for Petitioner at 150, Youngstown, 343 U.S. 579 (1952) (Nos. 744 and 745). This concession implies nothing concerning congressional control over the methods of engaging the enemy."

As we have discussed frequently before, there IS in fact direct textual support in the Constitution for the proposition that Congress has the power to pass laws regulating military conduct, even during war. I won't repeat those arguments here, but the fact that the Administration is trying to disable Congress from any lawmaking on the conduct of war is truly sweeping, and quite extraordinary. To give just one obvious example, there is no doubt that this argument would apply equally well to the issue of the treatment and interrogation of detainees. So, Congress has to know that the President is implicitly claiming that the McCain Amendment is unconsitutional. Similarly, Congressional restrictions on the use of chemical or biological weapons would fall into this sweeping assertion as well, and so on.

Besides the textual problems with the Administration's argument (namely, the various enumerated powers they omit from their discussion), there is also the general separation of powers problem--it is against the basic structure of the Constitution to assign all such power to one branch. This, of course, is the concern that has run consistently from Youngstown Steel through Hamdi. The paper has at least two interesting (and, again, extraordinary) things to say on this subject.

First, they deal with Hamdi in this way:

"This understanding of the AUMF is consistent with Justice O’Connor’s admonition that 'a state of war is not a blank check for the President,' Hamdi, 542 U.S. at 536 (plurality opinion). In addition to constituting a fundamental and accepted incident of the use of military force, the NSA activities are consistent with the law of armed conflict principle that the use of force be necessary and proportional."

What they fail to discuss is the very next sentence in Hamdi: "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." Of course, by claiming that only the President can decide what uses of military force are "necessary and proportional," and that Congress simply cannot regulate in this area at all, the Administration is indeed trying to claim only one branch--the Executive branch--has a role to play.

And this is their explanation for why they feel compelled to claim this exclusive and sweeping power:

"The President has determined that the speed and agility required to carry out the NSA activities successfully could not have been achieved under FISA. Because the President also has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al Qaeda, FISA would impermissibly interfere with the President’s most solemn constitutional obligation—to defend the United States against foreign attack. . . .

Indeed, if an interpretation of FISA that allows the President to conduct the NSA activities were not 'fairly possible,' FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict. In that event, FISA would purport to prohibit the President from undertaking actions necessary to fulfill his constitutional obligation to protect the Nation from foreign attack in the context of a congressionally authorized armed conflict with an enemy that has already staged the most deadly foreign attack in our Nation’s history. A statute may not 'impede the President’s ability to perform his constitutional duty,' Morrison v. Olson, 487 U.S. 654, 691 (1988) (emphasis added); see also id. at 696-97, particularly not the President’s most solemn constitutional obligation—the defense of the Nation."

So, in their view the President alone can determine what is necessary to the defense of the United States, and once he has made such a determination, Congress cannot impede him in any way.

So, back to my general point: hopefully Congress will now see what is truly at stake in this issue. And hopefully they will not lightly acquiesce to the declaration that their enumerated powers over the conduct of war are a nullity whenever the President determines that it is necessary to ignore Congress.
1.20.2006 11:33am
rick:
Wow - between KMAJ and Neal, those that think warrants should be obtained are arbortionists and terrorists.
1.20.2006 11:39am
srg (mail):
Medis,

You answered very well my question about Truong last week.

Would you please comment on the 2002 FIS court ruling that stated that there is a right for the governemtn to use warrantless wiretaps for foreign intelligence.

Thank you. (May I ask what is your real name? I assume you are a law professor or practicing lawyer.)
1.20.2006 11:40am
Neal Lang (mail):
It would seem the SCt's opinions in both Katz and the Keith case reject this sort of approach to the 4th Amendment.

Just where in the Constitution may I find the Supremes "power" to amend the Constitution without following the procedures proscribed in Article V.
On the other hand, Art. I, Sec. 8 is quite explicit about Congress's authority to regulate the armed forces, including its general-in-chief.

Which Congress choose to exercise by leaving it entirely up the Commander-in-Chief. Please see Title 10 of the US Code as it relates to "Regulation of the Armed Forces".
In any case, respectfully, Lang's framing of the issue seems like the old argument that Miranda warnings only apply to people named Miranda.

Which is the real problem with having a "government of laws" based on a document that can be amended by a 5-4 vote of group 9 unelected persons whose composition (an opinions) change every 20 or so years.

What makes the Supremes (or you) think that if "We, the People" truly wanted a murderer to have his lawyer present during police interogation (a siutuation that didn't exist as a Constitutional mandated "right" in the US for nearly 200 years until Miranda) we weren't capable of doing so by amending the Constitution to so stipulate the "old fashion way", as mandated by Article V of said document?

Just where are we to find "Miranda" in this?
Article the seventh [Amendment V]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As near as I can tell, the 5th Amendment is more a "limitation" on Judicial "power" than it is on Legislative or Executive.

Also, please note the old "Commander-in-Chief" exception found in the 5th Amendment - "except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger". Around the time this Amendment (as it is written) was ratified, this exception included "each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years". Perhaps the Framers actually thought that a "time of War or public danger" was a "special" situation.

BTW, I fail to see the "general right of privacy exception" to the "due process" requirement as it relates to the "right of the woman to choose to deprive her unborn child of life". But of course, I am a mere mortal, and not a lawyer. Perhaps you can point it out.
1.20.2006 11:49am
rick:
Yes, but I think it's obvious, as Neal helpfully pointed out, that any analysis of the legality of warrantless wiretapping will require deep thought on and discussion of the abortion issue.
1.20.2006 11:49am
A.S.:
Medis writes: That is because without that construction of Congress's enumerated war powers, the President's "inherent" powers regarding surveillance would not be "exclusive" powers, and without them being exclusive powers there is no serious Constitutional question--if FISA was authorized by Congress's enumerated powers and the President's related power is not exclusive, then Congress wins.

I accept that this it what Jackson wrote in his concurrence. But has any court ever held this? Note the question is NOT whether courts have found Jackson's tripartite analysis to be useful - of course that is the case - but rather whether any court has specifically held that if a legislative act was authorized by Congress's enumerated powers and the President's related power is not exclusive, then Congress wins.
1.20.2006 11:53am
Neal Lang (mail):
Wow - between KMAJ and Neal, those that think warrants should be obtained are arbortionists and terrorists.

No, I am merely realist who thinks that "the People's Constitution" should only be amended the "old fashion way", by using the actual Constitutionally approved procedures specified in Article V.
1.20.2006 11:53am
Neal Lang (mail):
So your contention is that Congress may irrevocably delegate to the executive its Article I power to make Rules for the Government and Regulation of the land and naval Forces, and therefore subsequent statutes like FISA are of no force and effect because they have previously surrendered their Constitutional authority?

Nope! I was merely pointing out the FACT that is what they actually did!
1.20.2006 11:55am
Defending the Indefensible:
Neal:

No, I am merely realist who thinks that "the People's Constitution" should only be amended the "old fashion way", by using the actual Constitutionally approved procedures specified in Article V.

Granting your position, where in the Constitution does the Congress have authority to irrevocably delegate its rulemaking power over the armed forces?
1.20.2006 11:55am
rick:
Sorry Neal, but any attempt to sound reasonable after invoking the "murder of unborn children" in a discussion of the executive's power to wiretap without a warrant is kinda down the drain.
1.20.2006 11:56am
Just Wondering:

Accordingly, the are no cases - zero - that in any way support that Congress could interfere with the President's actions in regards to a fundamental incidents of war.


Ex parte Milligan?
1.20.2006 11:59am
The Orginal TS (mail):
Medis, nice post. I note, however, that the administration is atill trying to shoehorn this program in under FISA. It's kind of interesting to imagine how this might work its way through the courts.

Apropos of that, do you agree that the administration seems to be conceding that the judiciary has authority to "impede" the President in his role as Commander-in-Chief?
1.20.2006 12:11pm
A.S.:
So, Congress has to know that the President is implicitly claiming that the McCain Amendment is unconsitutional.

Isn't it already clear from the President's signing statement that the President thinks the McCain Amendment could potentially be unconstitutional if it is applied to restrict the President's authority as Commander in Chief? So I don't think the implication is a shock to anyone. (And it's also why the signing statement said that the President will interpret the amendment in a manner it thinks is constitutional - presumably limiting it to situations in which it does not unconstitutionally restrict the President's power.)

there is also the general separation of powers problem--it is against the basic structure of the Constitution to assign all such power to one branch

But, of course, you are claiming that "all such power" is merely assigned to a different branch: the Legislative Branch.

It is not "against the basic structure of the Constitution" to assign the ultimate power in various areas to one branch or another; rather, it is inherent in the Constitution to do so. One branch or another must be the ultimate authority. For incident of war fighting, such as surveillance of the enemy, I would think tha the ultimate power has to be in the Executive Branch.
1.20.2006 12:11pm
Neal Lang (mail):
Yes, but I think it's obvious, as Neal helpfully pointed out, that any analysis of the legality of warrantless wiretapping will require deep thought on and discussion of the abortion issue.

Exactly! Apparently the same "general right of privacy" that guarantees the "right of a woman to choose to murder her unborn child" is the very same "general right of privacy" that leads an "enemy agent", plotting mayhew in our country, to "expect" that his "electronic communication" relating such plotting shall be private. While normal folks cannot find a "right of privacy" (general or otherwise) anywhere in the Constitution as ratified and amended (following the procedures stipulated in Article V) it is assumed that Supreme Court Justices are endowed (by the Creator?) with "powers" beyond those of "mortal men" to see the "penumbra" of "spooky rights" that the Framers carefully "hid" in "the People's COnstitution".
1.20.2006 12:14pm
Just Wondering:
Neal,

On the other hand, Art. I, Sec. 8 is quite explicit about Congress's authority to regulate the armed forces, including its general-in-chief.

Which Congress choose to exercise by leaving it entirely up the Commander-in-Chief. Please see Title 10 of the US Code as it relates to "Regulation of the Armed Forces".


Title 10 does say that the "President may prescribe regulations to carry out his functions, powers, and duties under this title." Where you read that as a delegation of the constitutional power to make regulations for the armed services, I think most would read it as nothing more than delegating the authority to provide, by regulation, how the statute is to be carried out. All agencies make regulations to implement the law. The regulations have to be consistent with statute, though; they are not a replacement for statutes.
1.20.2006 12:22pm
Neal Lang (mail):
Sorry Neal, but any attempt to sound reasonable after invoking the "murder of unborn children" in a discussion of the executive's power to wiretap without a warrant is kinda down the drain.

And just why is that? After all, both the Constitutional "Right of Abortion" and the Constitutional "Right of the Expectation of Privacy" are based on the same "General Right of Privacy" discovered by the Supremes amongst the "penumbra" some 200 or so years after its ratification.

Obviously, if a woman truly has a Constitutional "Right to murder her unborn child" than obviously an "enemy agent" in this has a "Right to expect that his conversations with al Qaeda HQ in the Hindu Kush will remain private".
1.20.2006 12:22pm
Medis:
srg,

I'd prefer to stay anonymous, in part because that way I feel my comments will be evaluated simply on the basis of their contents. But that in no way implies that I am somehow a legal authority of any sort--I just think it shouldn't matter what, if any, qualifications I may or may not have.

Anyway, to answer your substantive question:

There are two different issues raised by the decision in the case to which you are referring. One is whether warrantless surveillance for foreign intelligence purposes is constitutional in light of the Fourth Amendment. There are indeed cases which say some such surveillance is in fact constitutional, as the Court in In re Sealed Case notes. But in Sealed Case, the Court simply held that such surveillance as conducted under the procedures in FISA as amended by the USA-PATRIOT Act complied with the Fourth Amendment.

So, whether this new program would survive a Fourth Amendment challenge was not answered in Sealed Case. In other words, a court might scrutinize exactly why the FISA procedures were not followed, and whether the alternative procedures also satisfied the requirements of the Fourth Amendment. But I have not opined too much on this subject because it seems to me that Fourth Amendment doctrine is highly fact- and context-dependent, and therefore I think it is difficult to predict how this program would fare under a Fourth Amendment challenge, particularly without knowing the details of the procedures.

The other issue is whether Congress could regulate in this field, such as by providing mandatory procedures in FISA. As an aside, this issue was not actually presented in Sealed Case, so insofar as the Court said anything on that issue, it was dicta.

In any event, the famous dicta is:

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."

There are at least three puzzling things about this dicta. First, such an assumption (that FISA could not encroach on the President's inherent authority to conduct warrantless to obtain foreign intelligence information) was truly unnecessary to decide the case, and indeed is a non sequitur. Second, it doesn't follow from the relevant caselaw, because a President can have inherent authority without having exclusive authority. Third, there is no definition of "to encroach" in the opinion, so it is not at all clear what this dicta means. Indeed, if simply creating mandatory procedures counts as "encroaching", then ALL of FISA encroaches on the President's inherent authority, and the whole law is unconstitutional. But it would be somewhat extraordinary for a Court to state in passing that a law was entirely unconstitutional, and then continue to assess the case at hand under that law.

So, this dicta is a bit of a puzzle. I suspect that the Court may have had some more limited definition of "encroach" in mind, but because this is a non sequitur without any application to the case before the Court, and because this key term is undefined, it is hard to know what they actually meant.
1.20.2006 12:23pm
frankcross (mail):
A.S., doesn't the Hamdi language answer your question?

"Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."
1.20.2006 12:26pm
srg (mail):
Medis,

I appreciate your detailed and thoughtful reply.

At the very least, I think the FISA court opinion gives the Bush administration good grounds for thinking that its actions are legal, even if a future court decision says they are not. Given that the stakes are so high, it is understandable that the Bush administration decided not to go to Congress to get the FISA law amended, since they felt that they might lose that battle and, as I said above, felt that they were on reasonable legal grounds. Perhaps you and Professor Kerr will both disagree with this analysis. I would be interested in knowing also whether you have given any thought to Lincoln's suspension of habeas corpus in this context.
1.20.2006 12:34pm
rick:
I stand by my nomination of "murder of unborn children" in this comment string as the early frontrunner for non-sequitor of the year.

This wiretapping issue has, as far as I can tell, three general components:

1) Does the executive have the inherent power to do this?
2) Did Congress prohibit this activity with FISA and, if so, was that a constitutional exercise of its powers? If it was constitutional, was authority subsequently granted via the authorization for use of force?
3) Does the activity violate the 4th amendment?

In no way do I see how abortion fits in.
1.20.2006 12:45pm
Medis:
A.S.,

Well, the Court adopted a "sliding scale" version of Jackson's framework in Dames &Moore, but of course it did not actually have to decide what happens at the "Category 3" end of the scale because it found no actual conflict. And in general, I think this paper is descriptively accurate in the sense that while the executive branch has repeatedly made some version of this argument in its own internal memos (eg, in various OLC opinions), it has not actually tested this argument with any frequency in the courts. Youngstown itself, of course, is one such case, but obviously the Administration is claiming that case is distinguishable. Otherwise, the closest recent case is Hamdi, but as with Dames &Moore, the Court did not actually confront this issue directly because it held that there was no conflict.

Of course, that is part of why my post was about what Congress should do. Whether this issue could get to the Supreme Court, and what it should do if it does, is a complicated question. In my view, however, it is a simpler question for Congress what to do if it wants to protect its own authority--although obviously that is holding aside any political calculations, which will undoubtedly dominate over any legal niceties. Still, even a Republican Congress has to be reluctant to voluntarily give up so much power.

On the separation of powers:

Actually, I see a clear--and traditional--role for all three branches in this area. Indeed, that is how FISA works. In FISA, Congress passed a law laying out the procedures for conducting electronic surveillance for foreign intelligence purposes. But Congress makes no attempt to direct the actual use of FISA procedures. Rather, it is up to the executive branch to determine which parties warrant surveillance. In other words, the President, through the Attorney General, has the equivalent of "prosecutorial" discretion under FISA, meaning he gets to decide for whom to seek FISA orders. In turn, the judicial branch determines whether or not the President has complied with FISA by hearing the government's applications for FISA orders.

So, this is obviously just the traditional structure of our government as applied to electronic surveillance: Congress makes the law, the President executes the law, and the judicial branch applies the law to particular cases. In that sense, no one branch has "ultimate authority" over electronic surveillance. Rather, each branch has ultimate authority within its part of the process--Congress when it comes to law-making, the President when it comes to executing the law, and the courts when it comes to interpreting and applying the law to specific cases.

What the Administration claims, however, is that within this field, that fundamental allocation of power is no longer applicable. Rather, in its view Congress simply cannot make laws about the conduct of war, and therefore the President need not obey those laws if he deems it necessary to ignore them. And that, I would suggest, is not only contradicted by the plain text of the Constitution, but is also a violation of the basic framework of the Constitution.
1.20.2006 12:45pm
jrose:
Neal,

IMO, the right to not have the government tappping your telephone calls is an application of the Fourth Amendment, whereas the right to an abortion is based on a more nebulous right of privacy. Thus, the two issues do not relate to each other.
1.20.2006 12:47pm
Medis:
TOTS,

I doubt this Administration will ever give up on their claim that their inherent war powers exclude interference from the judicial branch as well. But that is an issue that was in fact presented in Hamdi, and they lost. So, they know the Supreme Court is not willing to endorse that view (at least not the Supreme Court as it was constituted in Hamdi).

srg,

I do think the dicta in Sealed Case may be enough to shield any lower government officials involved in this program from criminal prosecution. As I noted, I think this dicta is ambiguous at best, but that ambiguity may be enough for a defense. Again, that is part of why the focus of my comments is Congress, and what they might do in response to the Administration's sweeping claims.

On Lincoln: I think there is an interesting question about what the President can do despite existing laws during a domestic crisis before Congress can act (Congress, of course, eventually suspended habeas itself following Lincoln's declaration). Indeed, this paper tangentially raises this issue in a footnote, when it hypothesizes a "decapitation" strike that wipes out Congress. That issue may actually be relevant for two periods: the time between 9/11 and the 2001 AUMF, and time between the expiration of the 15-day period following the 2001 AUMF and the passage of the USA-PATRIOT Act.

But obviously, that logic no longer applies after the USA-PATRIOT Act. So, I take that as the last possible date upon which the President could argue that he was acting on the basis of any emergency powers he would have before Congress could act.
1.20.2006 12:58pm
Neal Lang (mail):
Title 10 does say that the "President may prescribe regulations to carry out his functions, powers, and duties under this title." Where you read that as a delegation of the constitutional power to make regulations for the armed services, I think most would read it as nothing more than delegating the authority to provide, by regulation, how the statute is to be carried out. All agencies make regulations to implement the law. The regulations have to be consistent with statute, though; they are not a replacement for statutes.

Gee, that is a tuffy! Perhaps the names Congress choose to use to describe the effect of Statute they passed and the President signed know as Title 10 might help:
TITLE 10—ARMED FORCES
Subtitle A—General Military Law
PART I—ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 3—GENERAL POWERS AND FUNCTIONS
§ 121. Regulations

Obviously the Congress thought the "regulations" in question effected the "ARMED FORCES". Just as obviously, the Congress thought they might have something to do with "General Military Law", as it might impact the "ORGANZATION AND MILITARY POWERS" of the "ARMED FORCES" under "General Military Law". Apparently the Congress thought these "Reglations" might define the "GENERAL POWERS AND FUNCTIONS" of the "ARMED FORCES".

Maybe that is how a "reasonable person" might read Congress' exact words, to wit: The President may prescribe regulations to carry out his functions, powers, and duties under this title - to be a delegation of their "authority" to "Regulate" the "ARMED FORCES", to the President, in his role as Commander-in-Chief of the Armed Forces. Of course, I cannot see any "penumbra" that might be hidden there that could change its "plain meaning" of these words!.
1.20.2006 1:09pm
The Orginal TS (mail):
Medis,
But as you yourself point out, Hamdi says, "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

If the administration is willing to concede a role for the Judiciary based on Hamdi, it ought to be willing to concede a role for Congress, too. Especially as "individual liberties" are at stake in the NSA case as well.

In any case, I agree that the administration would like the CINC to stand outside Constituional restrictions -- that's been their position in both Hamdi and Padilla. I'm not, however, sure that it still believes that position to be tenable. As I've noted, they make a serious effort to shoehorn this program in under FISA. But whatever it takes to get to the correct Constitutional place. I wasn't nearly as concerned about the NSA surveillance program as I was about the assertion that the President wasn't bound by anything, including Courts, Congress and the Constitution. If we can get that argument off the table, most of my concerns will be assuaged.
1.20.2006 1:14pm
Neal Lang (mail):
IMO, the right to not have the government tappping your telephone calls is an application of the Fourth Amendment, whereas the right to an abortion is based on a more nebulous right of privacy. Thus, the two issues do not relate to each other.

Please review the case law regarding "electronic surveillance" of telephone conversations and the "expection of privacy" for such communications which leads to the requirement that a "warrant" must be issued to perform such "surveillance", despite the fact that the words - "private"; "privacy"; "surveillance"; "communications"; "electronic"; and "conversations" do not appear anywhere in the 4th Amendment.

IMMHO, the "expection of privacy for all telephone calls" is based on the same concept (and penubra) of a "general right of privacy" as is the "right of the woman to choose to murder her unborn child".
1.20.2006 1:26pm
Jack John (mail):
Medis,

I have to say I am surprised by your reaction to the white paper. We, in particular, have duked out these very issues here. In fact, while I was reading the white paper I marveled that:

1. The white paper agrees with me on the constitutional framework, interpretaton of AUMF and interpretation of Hamdi (which I was ridiculed here for laying out -- don't want to say "I told you so!" but... I told you so!); and
2. Responds to each and every statutory argument (including implied repeal) that you made, by finding evidence in the legislative history of FISA and other statutes to rebut those assertions.

I would think that you would be glad that every point that troubled you was addressed. Instead, you appear frustrated and disturbed. Why is that? Are you actually claiming that their arguments (which specifically respond to each and every argument you made) are unreasonable? How can that be?
1.20.2006 1:43pm
Jack John (mail):

Apparently the Congress thought these "Reglations" might define the "GENERAL POWERS AND FUNCTIONS" of the "ARMED FORCES



The plain meaning of text works against you here, as the white paper makes clear. Please read it. General powers are not specific powers (or emergency powers) and functions are not actions and armed forces are not spies or diplomats. Sending out a spy or emissary to gather intelligence, which is analogous to electronic surveillance, is a specific executive action that is a necessary incident to war, especially in an emergency.
1.20.2006 1:47pm
Jack John (mail):

But that is an issue that was in fact presented in Hamdi, and they lost. So, they know the Supreme Court is not willing to endorse that view (at least not the Supreme Court as it was constituted in Hamdi).



That is not true. If you read the white paper, it makes clear that the plurality plus Justice Thomas endorsed the view. (5 Justices, in other words.)
1.20.2006 1:50pm
Jack John (mail):

But obviously, that logic no longer applies after the USA-PATRIOT Act. So, I take that as the last possible date upon which the President could argue that he was acting on the basis of any emergency powers he would have before Congress could act.



The white paper decisively wipes out your 15-day argument. If you want to keep making that argument, please actually read the legislative history they cite to and show how DOJ laid out the case improperly.
1.20.2006 1:52pm
Jack John (mail):

Rather, in its view Congress simply cannot make laws about the conduct of war, and therefore the President need not obey those laws if he deems it necessary to ignore them.



The white paper nowhere says this. Did you read it?
1.20.2006 1:53pm
Jack John (mail):

So, this is obviously just the traditional structure of our government as applied to electronic surveillance



Strange that you refer to tradition, when the white paper goes through the history -- from President Washington forward, including memoranda from several recent Presidents of both parties -- showing that the President's power to gather intelligence has always been as they articulate it in the brief. If you're going to rebut their historical argument, please take on each source DOJ cites to and show how DOJ cited to it incorrectly or in a misleading fashion.
1.20.2006 1:57pm
Jack John (mail):

And in general, I think this paper is descriptively accurate in the sense that while the executive branch has repeatedly made some version of this argument in its own internal memos (eg, in various OLC opinions), it has not actually tested this argument with any frequency in the courts.



Presidents since Washington have exercised this power in this fashion -- is the fact that no one has challenged it proof that it doesn't exist? It is a strange vision of the constitution to believe that the President lacks power unless a court says he has it.
1.20.2006 1:59pm
Jack John (mail):

"Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."



"A role" does not mean "the superior role" or "an equal role" it just means "some role." If I am the lead actor in a play and you are the utilitarian butler character who has one line -- "The tea is ready, sir." -- we both has a role in the play. But no one remembers you or claps for you at the end of the night. You're over-interpreting the noun phrase "a role".
1.20.2006 2:02pm
Jack John (mail):

the issue is whether Congress actually DID amend FISA and Title III in the 2001 AUMF. And the problem for the Administration is that there is really no evidence for their claim that Congress had that intention



Sure there is. DOJ makes clear that specific language has never been required. They show that the authorization to wage war in World War II against Germany was equally vague -- are you insisting that the President lacked the authority to wage war in World War II?
1.20.2006 2:05pm
Jack John (mail):
Or that he couldn't collect intelligence to wage war against Germany because of the breadth of the authorization's language?
1.20.2006 2:09pm
A.S.:
frankcross writes: A.S., doesn't the Hamdi language answer your question? "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

I have to agree with the others: "a" role for the Legislative branch doesn't mean that the Legislative branch must prevail in all cases and situations. The Legislative WILL retain a role, since, even under the President's interpretation, FISA continues to play an important part in regulating surveillance of things such as wholly-domestic calls. So the Legislative branch retains its role. The argument is that, if there were to be a conflict between actions by the Legislative and Executive branches, with reference solely to surveillance of international calls by persons linked to al Qaeda, the Executive branch would prevail.

Again, that's not to say that, in such conflicts, the Executive branch always prevails, nor that the Legislative branch has no role to play at all.
1.20.2006 2:15pm
Neal Lang (mail):
Rather, in its view Congress simply cannot make laws about the conduct of war, and therefore the President need not obey those laws if he deems it necessary to ignore them. And that, I would suggest, is not only contradicted by the plain text of the Constitution, but is also a violation of the basic framework of the Constitution.

If the Framer did not see that "conduct of war" was not a "special situation", please explain why it appears as an exception so often in the Constitution - PARTICULARLY IN AREAS RELATED DIRECTLY TO JUDICIARY "AUTHORITY" AND "POWERS" OF THE BRANCHES.

1. The "Writ of Habeas Corpus" is a "power" of the Judiciary that is effected by the "conduct of war" arguably an Executive "authority":
Article I Section 9. "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

2. The 3rd Amendment regarding "Quartering of Soldiers" in ones home, and used as a source for the mysterious "general right of privacy" is impacted by the "conduct of war", thus mitaging this "limitation" on either the Executive or the Legislative Branch "authority":
Article the fifth [Amendment III] "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law".

3. The 5th Amendment "right" not to be put on trial for "for a capital, or otherwise infamous crime" except on Grand Jury "presentment or indictment" (obviously a limitation on the "authority" all three Branches) applies to everyone except to "land or naval forces", "or in the Militia" but then only when related to the Militia's "conduct of war". This limits the authority of Judiciary in cases involving the "land or naval forces", "or in the Militia" but only when the Militia is involved "conduct of war". Such "war of war" related cases are tried by the Executive Branch by "court martial", thus an addition of "power" to the Executive at the expense of the Judicial Branch.
Article the seventh [Amendment V] "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor hall private property be taken for public use, without just compensation.

And just what did the Framer mean by:
Article II [Section 2.] 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, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
1.20.2006 2:19pm
A.S.:
Medis writes: <i>Of course, that is part of why my post was about what Congress should do. ... In my view, however, it is a simpler question for Congress what to do if it wants to protect its own authority--although obviously that is holding aside any political calculations, which will undoubtedly dominate over any legal niceties. Still, even a Republican Congress has to be reluctant to voluntarily give up so much power.</i>

On this point, I completely agree. Congress is now on notice that the Executive branch interprets its ambiguous language in the AUMF as authorizing the NSA program. Congress could quite simply act to make it clear whether ot not that is how the AUMF should be interpretted.

Indeed, I would go even farther. If Congress refuses to act to refute the President's interpretation of the AUMF, it will have implicitly accepted that interpretation. Which, of course, would strengthen the President's claim.

<i>So, this is obviously just the traditional structure of our government as applied to electronic surveillance: Congress makes the law, the President executes the law, and the judicial branch applies the law to particular cases. ... What the Administration claims, however, is that within this field, that fundamental allocation of power is no longer applicable. Rather, in its view Congress simply cannot make laws about the conduct of war, and therefore the President need not obey those laws if he deems it necessary to ignore them. And that, I would suggest, is not only contradicted by the plain text of the Constitution, but is also a violation of the basic framework of the Constitution.</i>

But fighting a war is not a "traditional" situation. It is not, for example, the same as regulation of interstate commerce. The Executive branch has additional, explicit powers under the Constitution in the war-fighting area.

So while in normal situations - regulation of interstate commerce and the like - I would completely concur that "Congress makes the law, the President executes the law, and the judicial branch applies the law to particular cases", in this special case of fighting a war, that's not how the Constitution allocates power. And that's, of course, why it is so important that the brief show that surveillance is a fundamental incident to war fighting, since it is only in that special case (or a few other equally specific case) that your description of the allocation of powers doesn't apply.
1.20.2006 2:29pm
Neal Lang (mail):
And in general, I think this paper is descriptively accurate in the sense that while the executive branch has repeatedly made some version of this argument in its own internal memos (eg, in various OLC opinions), it has not actually tested this argument with any frequency in the courts.

In order for the Commander-in-Chief's arguments to tested in court, some party with some "standing" is required to appear and petition the court to hear their case. Therefore, it might not be until Osama bin Laden decides to get real nasty and sue the President that the DoJ assertions regarding the NSA Surveillance Program of terrorists might be "court tested".
1.20.2006 2:34pm
Defending the Indefensible:
Neal, I ask you again to respond. Granting your position arguendo, where in the Constitution does the Congress have authority to irrevocably delegate its rulemaking power over the armed forces?
1.20.2006 2:43pm
Neal Lang (mail):
I stand by my nomination of "murder of unborn children" in this comment string as the early frontrunner for non-sequitor of the year.

This wiretapping issue has, as far as I can tell, three general components:

1) Does the executive have the inherent power to do this?
2) Did Congress prohibit this activity with FISA and, if so, was that a constitutional exercise of its powers? If it was constitutional, was authority subsequently granted via the authorization for use of force?
3) Does the activity violate the 4th amendment?

In no way do I see how abortion fits in.

To apply the 4th Amendment's "warrant" requirement to "electronic surveillance" of telephone calls, the Supremes reached into their "penumbra bag of tricks" and pulled-out a "right of expection of privacy" (something found nowhere in the Constitution as amended and ratified). Obviously this "right of expectation of privacy" must be part of the "general right of privacy", (also something found nowhere in the Constitution as amended and ratified). Since the "right of a woman to murder their unborn child" (also something found nowhere in the Constitution as amended and ratified) is part and parcel related to the same mysterious "general right of privacy" as is the "right of expectation of privacy" regarding telephone calls obviously the two "new rights" are connected.
1.20.2006 2:56pm
John Lederer (mail):
Medis,

I think we have plowed this ground before.

There is a logical "fuzzy" line between Congress' power in wartime over the military and the president's. Congress's power goes to the structure and regulation of the military "establishment" -- it sets up a system of justice, it defines military crimes, it determines the rank structure, the grades of pay, the standard ration, etc. The President's authority is operational. He directs military operations, conducts campaigns, and decides who will be appointed to what rank.

There is a strong suggestion of that sort of division in Ex Parte Milligan which states as patently true that Congress vilates the President's power if it directs military campaigns.

The same sort of line, exists in our military structure. We are famnilair with the ideas of operational command and staff command, a company commader and a commander of ordnance, a theater commander and a chief of staff.

It is a very fuzzy line. To make things worse, depending on how one characterizes it,this NASA surveillance is somewhere in the fuzziness. Is this an issue of what kind of cannon the army should have (Congress) or is this an issue of which hill they should bombard(C-in-C).

The strength of the DOJ memo rests, I think, in the fairly strong historical and practical argument that it makes that this intelligence gathering is part of operations, historically always has been, and must be to work effectively. I also found of some force the emphasis placed on the " he determines", with the necessary corollary that the President must have the tools to make the determination.

War does have rules for its conduct, and Congress may govern them, but those rules are remarkably elastic. Proportionality and reasonableness are of great import. It would violate the UCMJ for a commanding officer to shoot a soldier out of hand, yet there also always has been a defense of need -- "I shot Pvt. Jenkins when he refused to return as his running was starting a rout that imperilled our flank." So far, the indications are that the administration has been pretty sound in this surveillance on doing what needs to be done and no more.

To the degree that the administration succeeds in claiming this surveillance as a necessary incident of the operational war, it succeeeds overall. And truth to tell, I do not think Congress would, in mature reflection, say that its AUMF was not intended to embrace that among the host of things that such a resolution must.
Somewhat off topic, but what would happen if Congress passed a resolution "repealing" any authority for warrantless wiretapping that may have been conferred in the AUMF? Wouldn't that make it much more difficult for the President to justify continuation of the program?
1.20.2006 3:22pm
jrose:
Neal,

IMMHO, the "expection of privacy for all telephone calls" is based on the same concept (and penubra) of a "general right of privacy" as is the "right of the woman to choose to murder her unborn child".
In Katz, The Court concluded electronic surveillance is afforded the same protection by the Fourth Amendment as physical searches. The "expectation of privacy" standard was developed in a series of Fourth Amendment physical search cases.

Those rulings have nothing to do with the general right of privacy used in Roe.
1.20.2006 3:28pm
Neal Lang (mail):
Neal, I ask you again to respond. Granting your position arguendo, where in the Constitution does the Congress have authority to irrevocably delegate its rulemaking power over the armed forces?

Whether irrevocable or not, the concept of "authority" is that to have it also means it may be delegated - which is exactly what happened with regards to the "regulation of the Armed Forces" in Title 10.

Now comtemplate this:

Does "Authority equal Responsibility"? Obviously it does. Nothing else could be logical.

In the case of the "conduct of war" or other matters involving "National Security" who is held "responsible" for any failures?
1. The Federal Judiciary? NO
2. The Congress? NO
3. THe Commander-in-Chief? YES

Now, if the President, as Commander-in-Chief, lacks the Constitutional "Authority" to "coduct the war" or effect "National Security" with the Armed Force (which are part of the Executive Branch as far as I can tell) - how can he be held "responsible" for any failures in these area?

Case in point - "The 9/11 Commission Report". Exactly how much "responsibility" was attributed to truly suicidal and stupid Congressional Acts like FISA or to refusals of the Judiciary's FISA Court to allow necessary "electronic surveillance" in certain National Security cases. Don't bother looking, you will not find any. ALL "responsibility" was laid at the feet of the "Commander-in-Chief" (Whether Bush or Clinton).

Now in the case of National Security and the "conduct of war", if the Congress is not going to held "responsible" and the "Courts" are not going to be held "responsible", how do you justify your position that Congress has all the "authority" when it comes to the "regulation of the Armed Forces" and the "conduct of war"?

The Constitution was enacted to rectify the short-comings of the Articles of Confederation, the most agregious of which was the lack of Federal Executive.

With regards to "war powers" and "National Security" the Articles of Confederation stated at Article IX:
Article IX

The United States in Congress assembled shall also have the sole and exclusive right and power of -- appointing all officers of the land forces, in the service of the United States, excepting regimental officers -- appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States -- making rules for the government and regulation of the said land and naval forces, and directing their operations.

Exactly how does your reading the Constitution in regards to regulating the Armed Forces of the United and directing their operations differ from what is found in the failed Articles of Confederation?
1.20.2006 3:35pm
rick:
Neal - you're confused. Yes, the word 'privacy' is common to both the "right of privacy" on which the abortion cases rest and to the 4th amendment "expectation of privacy". However, these lines of cases have limited applicability to each other. Yes, the same word is there, but it's not the same line of cases.

I can see an argument that disagrees with Katz because the 4th amendment doesn't apply to anything besides a "search" or "seizure" - no less than Justice Black agreed with that position. Holding by the "if it's not specifically written in the constitution then you don't have the power to do it". But what doesn't make sense is that you then shift gears when it comes to whether Congress can delegate its rule-making authority and say that "obviously" they can, even though nothing in the constitution explicitly states that.

Please explain.
1.20.2006 3:47pm
Defending the Indefensible:
Neal Lang:
Neal, I ask you again to respond. Granting your position arguendo, where in the Constitution does the Congress have authority to irrevocably delegate its rulemaking power over the armed forces?
Whether irrevocable or not, the concept of "authority" is that to have it also means it may be delegated - which is exactly what happened with regards to the "regulation of the Armed Forces" in Title 10.
Is this some kind of shadow of a penumbra? Delegation is not a necessary consequent of authority, and since you elide the question of whether such delegation, if permissible, may be irrevocable, then you still haven't addressed the part of my original question that, therefore, subsequent statutes like FISA could be considered of no force and effect because Congress previously surrendered their Constitutional authority. Please respond and explain how you fit this into your theory of strict constitutional construction.
1.20.2006 3:57pm
Evelyn Blaine:
A.S. wrote:

I accept that this it what Jackson wrote in his concurrence. But has any court ever held this? Note the question is NOT whether courts have found Jackson's tripartite analysis to be useful - of course that is the case - but rather whether any court has specifically held that if a legislative act was authorized by Congress's enumerated powers and the President's related power is not exclusive, then Congress wins.

Little v Bareme surely comes close; but, in any case, I think that most of the Framers would have viewed the principle that the power to make determinate written law, where it exists by explicit constitutional textual commitment, trumps any countervailing power of discretionary prerogative or individual judgment as a thesis too obvious to need explicit mention. Unless, of course, one believes that the Framers intended to place in question one of the signal maxims of 1688 ("that the pretended Power of Dispensing with Lawes or the Execution of Lawes by Regal Authoritie as it hath beene assumed and exercised of late is illegall") - but this can hardly be taken seriously.
1.20.2006 4:06pm
Just Wondering:
John agreed with the "fairly strong historical and practical argument that it makes that this intelligence gathering is part of operations, historically always has been, and must be to work effectively."

Yet not all intelligence gathering is related to a military campaign. Can't one agree that the use of force requires the use of intelligence assets, but also distinguish among types of intelligence to conclude that not all of them are incidents of war? Whether the particular type of surveillance is an incident of war seems to me to depend on the facts. Since nobody knows what those are, it's hard to say who's right. After all, detention is an incident of war, according to Hamdi, but Hamdi didn't (I don't think) overrule Ex parte Milligan or Ex parte Endo.
1.20.2006 4:17pm
Neal Lang (mail):
In Katz, The Court concluded electronic surveillance is afforded the same protection by the Fourth Amendment as physical searches. The "expectation of privacy" standard was developed in a series of Fourth Amendment physical search cases.

Those rulings have nothing to do with the general right of privacy used in Roe.

Really? To "get there" in Katz the Supremes relied on OLMSTEAD v. U.S., 277 U.S. 438 (1928), (a wire-tapping case) which was all about "privacy", describe in the opinion as the "right to be let alone", to wit:
The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Now if you believe that "right of general privacy" (a.k.a. - "right to be let alone-the most comprehensive of rights and the right most valued by civilized men") expressed in Olmstead, and in included in Katz is not the same "right of general privacy" as expressed in Roe - kindly explain why?

Obviously, the Supremes believe that the "enemy agent" in the US plotting via cell phone to blow-up the Staten Island Ferry with his Control in the Hindu Kush has the "right to be let alone" (in other words -an "expectation of privacy" for his nefarious telephonic plotting), and thus is afforded 4th Amendment protections from a Constitutional Amendment that mentions neither "privacy" nor "conversations" nor "electronic" nor "surveillance".
1.20.2006 4:22pm
Evelyn Blaine:
Just Wondering wrote:

Yet not all intelligence gathering is related to a military campaign. Can't one agree that the use of force requires the use of intelligence assets, but also distinguish among types of intelligence to conclude that not all of them are incidents of war? Whether the particular type of surveillance is an incident of war seems to me to depend on the facts. Since nobody knows what those are, it's hard to say who's right.

One of the most sensible things I've heard on this subject in a long time.
1.20.2006 4:31pm
jrose:
Neal,

You quoted from a dissent from Olmstead. Not only did The Court not rely on that dissent in Katz, it explicitly rejected it:

'... the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's general right to privacy - his right to be let alone by other people - is, like the protection of his property and of his very life, left largely to the law of the individual States.'

Also, you have the "expectation of privacy" standard back-asswards. Not only is it unrelated to a "general right of privacy" (it applies only in Fourth Amendment cases), it was used by The Court to give the government more power to conduct warrantless searches.
1.20.2006 4:38pm
Medis:
A.S.,

You wrote, "The Executive branch has additional, explicit powers under the Constitution in the war-fighting area."

The thing is, so does Congress. What the Constitution says is that the President shall be Commander in Chief of the armed forces. It also says Congress shall make the laws for the government and regulation of the armed forces, define crimes against the laws of nations, and so on. So, I agree that Congress could not try to place someone else in command of the armed forces. But the President cannot try to replace military laws passed by Congress with his own laws. That is the balance of power specifically stated in the Constitution.

John L.,

I actually don't think the line in this case is fuzzy at all. Of course surveillance is part of war. That is not the question. Rather, the question is what role Congress and the President have with respect to such matters of war.

And the answer in the Constitution is that Congress can makes laws--rules of general applicability--and the President can direct specific operations. So, if FISA is a rule of general applicability--a law--then it is within the scope of Congressional authority. If it is instead an attempt to order the armed forces to do something in particular, it would be within the scope of the President's authority. But clearly FISA is the former and not the latter, so there is no real fuzziness issue here.

Indeed, that is why this paper is so helpful. There is no pretense here about what the Administration is claiming. Their claim is that if a law regulates conduct during war, then it is unconstitutional. That is an extraordinary claim, and I think completely unsupportable in light of the text of the Constitution, but that is their claim.
1.20.2006 4:41pm
rick:
jrose - I don't believe it's worth the time to point this out to Neal because he believes that everything is connected to abortion, that strict constructionism is the way to go unless it doesn't fit his argument, and that insertion of the "obvious" before an assertion makes it true.
1.20.2006 4:44pm
Just an Observer:
rick, jrose, and other well-meaning commentors:

Warning, you are entering a black hole of irrationality.

See this post, et seq, this post, et seq, and this post, et seq.

It may be a family of black holes, or perhaps a wormhole to an irrational part of the blogosphere.

The more matter you feed a black hole, the bigger it gets.
1.20.2006 4:51pm
rick:
Thanks, JaO, I was starting to get that impression.
1.20.2006 4:59pm
margate (mail):
If anyone knows, which particular source of Congressional power in Art I was -- *at the time of enactment* -- relied on.

The administration has hinted but not argued head-on that FISA is unconstitutional. I understand that to mean for reasons other than Art II C-in-C reasons. That being, FISA exceeds Congress's authority.

If the source of Congress's power is the regulation of the military, then does that mean only the NSA or some other DoD agency -- and not the FBI -- can spy under a FISA warrant?
1.20.2006 5:18pm
John Lederer (mail):
A minor correction: the last sentence of my post above was something someone else said, was "stuck" in my clipboard, and dumped out inadvertently.

Medis, I guess we just disagree. I think it a direct attempt to direct how operations would be conducted -- no different in principle than legislating "Pilots may not fire on aircraft identified as enemy with more than two weapons, unless they communicate to their CO and he agrees in writing". The question is not, I think so much whether the rule is general or specific, but rather what is sought to be governed.

In any event, if we believe the President (or General Hayden) the fact of the matter is that applying FISA means that the country cannot conduct effective surveillance of the enemy. That is both a serious and strong claim. It is unfortunate that the assertion requires faith since apparently it is based on details that seem to be near the core of what the administration believes should be most secret (see fn.18, and p. 39).
1.20.2006 5:36pm
Bushrod, J. (mail):
Interesting statements by CJ Rehnquist in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990):

1. "The Fourth Amendment functions differently [from the 5th Amendment]. It prohibits 'unreasonable searches and seizures' whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is 'fully accomplished' at the time of an unreasonable governmental intrusion." Id. at 264. (For those who've suggested that NSA spying is a "no harm, no foul until a criminal prosecution," that does not appear to be the SCOTUS's view.)

2. "What we know of the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters. . . . The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government . . . ." Id. at 265-66.

3. "There is likewise no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters." Id. at 267.

It seems Rehnquist's writes a bright-line rule that the 4th Amendment applies to the government's actions *domestically* -- a geographical bright line that circumscribes the government's authority, regardless of which constitutional power is being invoked.
1.20.2006 5:54pm
margate (mail):
For those suggesting *only* the president may determine foreign policy:

"Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs."

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963)
1.20.2006 6:00pm
A.S.:
For those suggesting *only* the president may determine foreign policy

Nobody, including the Administration, is suggesting that. What the Administration suggests, and I agree with, is that the President's power is preeminent solely with respect to the fundamental incidents of the use of military force.
1.20.2006 7:01pm
Just Wondering:
John wrote:

I think it a direct attempt to direct how operations would be conducted -- no different in principle than legislating "Pilots may not fire on aircraft identified as enemy with more than two weapons, unless they communicate to their CO and he agrees in writing".


Why couldn't Congress make a rule that says that? Other than that it would be really, really stupid, and the president would veto it in any event. Congress has the authority to define and punish offenses against the law of nations, as well as to make regulations for the armed forces. If Congress were to decide (for whatever unfathomable reason) that such a silly rule would ensure that our armed forces keep within the law of war, it doesn't seem in principle to be unconstitutional. Unenforceable and self-defeating, perhaps, but unconstitutional?
1.20.2006 7:03pm
The Orginal TS (mail):
Just Wondering,

Quite correct. The UCMJ is a statute passed by Congress. Nothing prevents Congress from passing all kinds of laws regarding what it is legal and illegal for the military to do. It the same authority that allows Congress to make it illegal for the armed forces to rape and pillage -- regardless of any orders by the CINC to the contrary.
1.20.2006 7:17pm
Andrew Hyman (mail) (www):
This DOJ document helps explain the administration's position, and it presents some credible arguments, as well as some that are not really credible, IMNSHO.

The DOJ document deals with the 15-day limit imposed by FISA (on wartime unwarranted surveillance). DOJ presents some compelling arguments that an implied repeal may have occurred (see footnote 21), and DOJ also makes some other non-trivial arguments regarding the 15-day limit. For example, DOJ points out that FISA's 15-day limit mentions a declaratin of war, whereas the War Powers Act specifically distinguishes between declarations of war versus authorizations for use of force. Thus, FISA's 15-day limit may well have been referring only to declared wars rather than authorized wars.

In any event, I think the implied repeal argument is strong, and I'm glad that DOJ dealt with it (in footnote 21). I haven't studied the DOJ document in great detail, but I'm still unconvinced by DOJ’s statutory interpretation that FISA’s “exclusive” means for electronic surveillance only means “exclusive as of the date on which FISA was enacted.” Much more persuausive is DOJ’s argument that FISA’s “exclusive” clause may be unconstitutional, the conference report stated it might be.

Anyway, this DOJ document does help explain the administration’s position, and many of its arguments are compelling. I hope that DOJ will expand upon footnote 21 regarding implied repeal.
1.20.2006 7:24pm
Just an Observer:
For those suggesting *only* the president may determine foreign policy

A.S.: "Nobody, including the Administration, is suggesting that. What the Administration suggests, and I agree with, is that the President's power is preeminent solely with respect to the fundamental incidents of the use of military force."

Then I guess we can discount citations to the Curtiss-Wright case, which did not involve use of military force, but rather international arms sales and diplomacy during peacetime.
1.20.2006 7:59pm
Just Wondering:
Andrew wrote:

The DOJ document deals with the 15-day limit imposed by FISA (on wartime unwarranted surveillance). ... For example, DOJ points out that FISA's 15-day limit mentions a declaratin of war, whereas the War Powers Act specifically distinguishes between declarations of war versus authorizations for use of force. Thus, FISA's 15-day limit may well have been referring only to declared wars rather than authorized wars.

Why should we infer from the fact that the 15-day waiver applies only to declared wars that there is an indefinite waiver for an authorization to use force? Why not presume instead that no waiver applies?

I think the implied repeal argument is strong, and I'm glad that DOJ dealt with it (in footnote 21).

The DOJ argument requires an assumption that FISA is unconstitutional under the canon of constitutional avoidance. Wouldn't it be easier just to say that outright rather than argue that Congress must have intended to repeal it since any other action would be unconstitutional? (Of course, to do that would mean admitting that the president is in Youngstown category 3 rather than at the zenith of his power)
1.20.2006 8:08pm
Just Wondering:
JaO wrote:

Then I guess we can discount citations to the Curtiss-Wright case, which did not involve use of military force, but rather international arms sales and diplomacy during peacetime.

Citations to Curtiss-Wright don't mean much in this context anyway, since the President's actions in that case conformed to a statute explicitly authorizing the action.
1.20.2006 8:14pm
Medis:
John L.,

I also don't see such a regulation as outside the enumerated powers of Congress, nor different in kind than much that is already in the UCMJ or other military laws. Indeed, it reminds me of several provisions of the 1776 Articles of War regarding when the armed forces needed direct orders before taking a specific action, such as the one prohibiting the armed forces from laying waste to "walks of trees, parks, warrens, fish-ponds, houses or gardens, cornfields, enclosures or meadows" without an order from the commander in chief (part of Section XIII, Article 16).

But perhaps we can start with a really clear example of what Congress does not have the power to do. Here is a law that I think Congress could not have passed: "On June 5, 1944, General Einsenhower shall order the armed forces of the United States to invade the northern coast of France." Incidentally, people who know the history of the D-Day invasion will know why I chose June 5th.

That law is clearly unconstitutional because it is an attempt by Congress to issue a military order, and it bypasses the President, who is designated by the Constitution as Commander in Chief.

But FISA, of course, is not such an order--it is a law, just like many other laws in the UCMJ, the US Code, and indeed the Founders' own Articles of War. And I see nothing in the text of the Constitution that disables Congress from passing such laws, as opposed to something like an order.

Again, that is what is so sweeping about this argument. It is a straightforward and uncontroversial proposition to state that Congress cannot issue military ORDERS. But the idea that there are some subject matters about which Congress cannot issue military LAWS is simply unsupported by anything in the Constitution.
1.20.2006 8:35pm
Neal Lang (mail):
You quoted from a dissent from Olmstead. Not only did The Court not rely on that dissent in Katz, it explicitly rejected it:

No shit! So did Harlan's concurrence in Katz and Blacknum in Roe. Go figure!

Please note that Associate Justice Harlan's concurring opinion in Katz makes the point that the Courts opinion overruled Olmsted. Additionally, Harlan concurrence is based DIRECTLY on Mr. Katz "expectation of privacy", to wit:
MR. JUSTICE HARLAN, concurring.

I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383 , and unlike a field, Hester v. United States, 265 U.S. 57 , a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; [389 U.S. 347, 361] and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.

As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra.

The critical fact in this case is that "[o]ne who occupies it, [a telephone booth] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume" that his conversation is not being intercepted. Ante, at 352. The point is not that the booth is "accessible to the public" at other times, ante, at 351, but that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable. Cf. Rios v. United States, 364 U.S. 253 .

In Silverman v. United States, 365 U.S. 505 , we held that eavesdropping accomplished by means of an electronic device that penetrated the premises occupied by petitioner was a violation of the Fourth Amendment. [389 U.S. 347, 362] That case established that interception of conversations reasonably intended to be private could constitute a "search and seizure," and that the examination or taking of physical property was not required. This view of the Fourth Amendment was followed in Wong Sun v. United States, 371 U.S. 471 , at 485, and Berger v. New York, 388 U.S. 41 , at 51. Also compare Osborn v. United States, 385 U.S. 323 , at 327. In Silverman we found it unnecessary to re-examine Goldman v. United States, 316 U.S. 129 , which had held that electronic surveillance accomplished without the physical penetration of petitioner's premises by a tangible object did not violate the Fourth Amendment. This case requires us to reconsider Goldman, and I agree that it should now be overruled. * Its limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion.

Finally, I do not read the Court's opinion to declare that no interception of a conversation one-half of which occurs in a public telephone booth can be reasonable in the absence of a warrant. As elsewhere under the Fourth Amendment, warrants are the general rule, to which the legitimate needs of law enforcement may demand specific exceptions. It will be time enough to consider any such exceptions when an appropriate occasion presents itself, and I agree with the Court that this is not one.

[ Footnote * ] I also think that the course of development evinced by Silverman, supra, Wong Sun, supra, Berger, supra, and today's decision must be recognized as overruling Olmstead v. United States, 277 U.S. 438 , which essentially rested on the ground that conversations were not subject to the protection of the Fourth Amendment.

Of more note is Associate Justice Black's dissent in Katz. Apparently he thought the courts "rewriting the 4th Amendment" had a direct connection to "privacy:
With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment, which started only recently when the Court began referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy. By clever word juggling the Court finds it plausible to argue that language aimed specifically at searches and seizures of things that can be searched and seized may, to protect privacy, be applied to eavesdropped evidence of conversations that can neither be searched nor seized. Few things happen to an individual that do not affect his privacy in one way or another. Thus, by arbitrarily substituting the Court's language, designed to protect privacy, for the Constitution's language, designed to protect against unreasonable searches and seizures, the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy. As I said in Griswold v. Connecticut, 381 U.S. 479 , "The Court talks about a constitutional `right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the `privacy' [389 U.S. 347, 374] of individuals. But there is not." (Dissenting opinion, at 508.) I made clear in that dissent my fear of the dangers involved when this Court uses the "broad, abstract and ambiguous concept" of "privacy" as a "comprehensive substitute for the Fourth Amendment's guarantee against `unreasonable searches and seizures.'" (See generally dissenting opinion, at 507-527.)

The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of "persons, houses, papers, and effects." No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts.

Finally, Associate Justice Blackmun, writing for the court in Roe referenced Katz and Olmstead (Brandeis, J., dissenting) in establishing the nexus between the "right of privacy" in the 4th Amendment and the "right of privacy for a woman to murder her unborn child".
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

Perhaps your argument should be with Justice Blackmun!

Also, Associate Justice Rehnquist, in his dissent notes that majority used Katz to establish their "General Right of Privacy" in Roe.
A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

I don't make this shit up, the Supremes do. I sorry if you can't handle the truth!
Also, you have the "expectation of privacy" standard back-asswards. Not only is it unrelated to a "general right of privacy" (it applies only in Fourth Amendment cases), it was used by The Court to give the government more power to conduct warrantless searches.

If the "General Right of Privacy" in Roe did not rely on the "Right of Expectation of Privacy", then why did Blackmun's majority opinion Roe reference Brandeis' dissent in Olmstead specifically it's "right to let alone", arguable the basis for any "expectation of privacy" and Harlan's concurrence in Katz, to wit:
"I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383 , and unlike a field, Hester v. United States, 265 U.S. 57 , a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment.

It would seem that Roe "General Right of Privacy" relied heavily on both Brandeis' "right to let alone" and Harlan's "right of the expectation of privacy".

I find it interesting the Associate Jusice White concurred in Katz (without relying on privacy) and also dissent in Roe (without attacking the majorities "general right of privacy". Also interesting in the Justice White's Katz concurrence is the expressed exception to the "warrant" requirement in cases involving "electronic surveillance" on National Security matters:
MR. JUSTICE WHITE, concurring.

I agree that the official surveillance of petitioner's telephone conversations in a public booth must be subjected [389 U.S. 347, 363] to the test of reasonableness under the Fourth Amendment and that on the record now before us the particular surveillance undertaken was unreasonable absent a warrant properly authorizing it. This application of the Fourth Amendment need not interfere with legitimate needs of law enforcement. *

In joining the Court's opinion, I note the Court's acknowledgment that there are circumstances in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. New York, 388 U.S. 41, 112 -118 (1967) (WHITE, J., [389 U.S. 347, 364] dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

[ Footnote * ] In previous cases, which are undisturbed by today's decision, the Court has upheld, as reasonable under the Fourth Amendment, admission at trial of evidence obtained (1) by an undercover police agent to whom a defendant speaks without knowledge that he is in the employ of the police, Hoffa v. United States, 385 U.S. 293 (1966); (2) by a recording device hidden on the person of such an informant, Lopez v. United States, 373 U.S. 427 (1963); Osborn v. United States, 385 U.S. 323 (1966); and (3) by a policeman listening to the secret micro-wave transmissions of an agent conversing with the defendant in another location, On Lee v. United States, 343 U.S. 747 (1952). When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment does not protect against unreliable (or law-abiding) associates. Hoffa v. United States, supra. It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another. The present case deals with an entirely different situation, for as the Court emphasizes the petitioner "sought to exclude . . . the uninvited ear," and spoke under circumstances in which a reasonable person would assume that uninvited ears were not listening.
1.20.2006 8:47pm
Andrew Hyman (mail) (www):
Medis,

Do you think this is a law or an order:

"On June 5, 1944, General Einsenhower shall NOT order the armed forces of the United States to invade the northern coast of France."
1.20.2006 9:12pm
jrose:
Neal,

Harlan did not endorse a general right to privacy in Katz.

Blackum's laundry list of cases with "at least the roots" of a general right of privacy - including Brandeis' dissent in Olmstead and Harlan's concurrence in Katz - did not modify Katz to establish that the Fourth protects a general right to privacy.
1.20.2006 9:24pm
Neal Lang (mail):
jrose - I don't believe it's worth the time to point this out to Neal because he believes that everything is connected to abortion, that strict constructionism is the way to go unless it doesn't fit his argument, and that insertion of the "obvious" before an assertion makes it true.

Where did you ever get that idea? I merely believe that the Supremes relied on a mystical "general right of privacy", nowhere referenced in the Constitution to deny the States the right to regulate abortion (something the States had done without Federal interferece since before the founding of the Nation), and also, under the mystical "right of expectation of privacy" to insist that in order to perform "electronic surveillance" 4th Amendment "warrants" must be obtained, although that amendment does not even mention "surveillance". Privacy, it would appear impacts both unconstitutional Supreme Court findings.

As far as "strict construction" is concerned, I believe that the Constitution, as written, is just fine, without "penumbras". All also believe if the Supremes don't like what it actually says, they should amend it per Article V.

Unfortunately, the Supremes would rather be creative than to interpret the written word as ratified. Apparently, they feel that the Article V Amendment requirements are too cumbersome. It might helpful if the Supremes would at least "edit" a copy the Constitution, incorporating all their "strikeouts" and "additions", so "We, the People" would some clue as to what the current Judicial diktat "amended" "construction" looks like.

BTW, I don't believe I ever used the words "obvious" in any of my posts. However, that is but a very minor part of your "obvious" misunderstanding.
1.20.2006 9:26pm
Defending the Indefensible:
Neal Lang:

What conservative talking points blog do you get your citations from?
1.20.2006 9:30pm
Medis:
On implied repeal and 1811:

Aside from invoking the consitutional avoidance doctrine, the paper also makes this argument:

"The President’s determination that electronic surveillance of al Qaeda outside the confines of FISA was 'necessary and appropriate' would create a clear conflict between the AUMF and FISA. FISA’s restrictions on the use of electronic surveillance would preclude the President from doing what the AUMF specifically authorized him to do: use all 'necessary and appropriate force' to prevent al Qaeda from carrying out future attacks against the United States. The ordinary restrictions in FISA cannot continue to apply if the AUMF is to have its full effect; those constraints would 'unduly interfere' with the operation of the AUMF."

This key step in this argument is the implied premise--which occurs elsewhere in the paper as well--that if the President determines that something is necessary and appropriate, then legally it is necessary and appropriate. In other words, the paper proposes that the President alone can determine what is necessary and appropriate, notwithstanding any other federal law.

Of course, there is a notable and reasonable alternative to this premise: that the President's determinations are not the sole arbiter of what is necessary and appropriate, but rather that other applicable federal laws also restrict what options are in fact appropriate, regardless of what the President might determine. In other words, it is not appropriate to break the law.

As an aside, this is how the Necessary and Proper Clause of the Constitution is interpreted--if there is a conflict between what Congress determines is Necessary and Proper and some other specific limiting provision of the Constitution (eg, the First Amendment), then the specific limiting provision of the Constitution trumps Congress's determination. Again, in other words, it is not proper for Congress to violate the Constitution.

So, by assuming the President's determinations define what is "necessary and appropriate" for the purposes of the 2001 AUMF, the paper's argument is clearly question-begging. In other words, the 2001 AUMF only fails to have its "full effect" if one starts with the assumption that it was intended to suspend any applicable federal law whenever the President determined that such a law was too great of an interference. But if one starts with the contrary assumption--that the 2001 AUMF was not intended to suspend federal law solely because the President made such a determination--then it is not failing to give the 2001 AUMF its "full effect" if it does not impliedly repeal 1811.

Indeed, this is what the doctrine of implied repeal is all about. Of course it would always give GREATER effect to the later statute if it impliedly repealed the earlier statute. But the doctrine is not that the later law is given the maximum possible effect, regardless of the effects on prior statutes. Just the opposite: the doctrine is that the later law is interpreted insofar as possible to NOT impliedly repeal the earlier law unless such a construction is unavoidable, or Congress made its intention to do so clear.

And the doctrine exists for precisely this sort of situation: to make sure that people do not interpret away older laws whenever Congress passes new laws that deal with a related subject matter, unless Congress specifically intends to do exactly that.
1.20.2006 9:31pm
The Orginal TS (mail):
Andrew, sounds like an order to me. I see the point you're trying to make but I think that's the wrong way to go about the discussion. Of course we can create hypothetical laws that skirt the border of, err, laws &orders. Those would be great cases for the Supreme Court to take to clarify the precise contours of this doctrine.

That's not helpful at this point because we still, apparently, need to establish the doctrine itself. The White House apparently believes (or, at least, would like to believe) that nothing binds a president when acting as Commander-In-Chief. I disagree. As CINC, The President has full authority to command the armed forces. This means that he can issue any legal order but cannot issue any illegal order. The President does not have authority to order the military to, say, go out and kill ten random Iraqi women and children for every soldier killed by the insurgency. I find this proposition unremarkable but many, apparently, disagree.

Once we have this framework in place, we can start debating the exact dividing line between constitutionally acceptable laws governing the military and unconstitutional Congressional orders to the military.
1.20.2006 9:34pm
Medis:
Andrew,

I'm not sure what to call that--a "prospective countermand," perhaps?

In any event, it certainly isn't a law of general applicability.
1.20.2006 9:35pm
Medis:
Andrew,

I have one for you--a little less hypothetical, actually. Is this a law or an order?

"Whenever any officer or soldier shall be accused of a capital crime, or of having used violence, or committed any offense against the persons or property of the good people of any of the United American States, such as is punishable by the known laws of the land, the commanding officer and officers of every regiment, troop, or party, to which the person or persons so accused shall belong, are hereby required, upon application duly made by or in behalf of the party or parties injured, to use his utmost endeavors to deliver over such accused person or persons to the civil magistrate; and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring them to a trial."
1.20.2006 9:37pm
Andrew Hyman (mail) (www):
Medis, that sounds like a law too me. Incidentally, Congress has been passing "private bills" for centuries, that act on named individuals. So, the line between laws and orders is rather fuzzy, especially if you consider what are called "standing orders."

Anyway --- more to the point --- you wrote that "it is not appropriate to break the law." But, if "appropriate force" excludes anything that would violate a preexising statute, then the last sentence of the AUMF is pointless surplusage. Of course, we've discussed this point previously, so it's probably not necessary for you to respond. I found it interesting that the white paper did not get to this surplusage argument, but maybe the next white paper will.
1.20.2006 9:59pm
Andrew Hyman (mail) (www):
Here's Wikipedia on standing orders.

http://en.wikipedia.org/wiki/Standing_order
1.20.2006 10:02pm
Neal Lang (mail):
Harlan did not endorse a general right to privacy in Katz.

No he didn't! What he did, as I said, was endorse was "constitutionally protected reasonable expectation of privacy". As the Constitution does not mention "privacy in any form" one must wonder where Harlan gets that idea from. Apparently it is related to Brandeis dissent in Olmstead, a case which he felt had been overturned by the Katz decision:
[ Footnote * ] I also think that the course of development evinced by Silverman, supra, Wong Sun, supra, Berger, supra, and today's decision must be recognized as overruling Olmstead v. United States, 277 U.S. 438 , which essentially rested on the ground that conversations were not subject to the protection of the Fourth Amendment.

Of course, Justice Brandeis opined in his dissent about the a new right of "privacy of the telephone":
The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all con- [277 U.S. 438, 476] versations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.

It would seem that this new right of "privacy of the telephone" was so complete, that it might impossible to issue a "4th Amendment warrant" that could penetrate it.
Blackum's laundry list of cases with "at least the roots" of a general right of privacy - including Brandeis' dissent in Olmstead and Harlan's concurrence in Katz - did not modify Katz to establish that the Fourth protects a general right to privacy.

I did say it did, merely that Harlan in Katz expressed a "right to be let alone", which is pretty close to a "general right of privacy". Blackmun apparently thought Harlan was speaking of a "general right of privact" in his Katz concurrence:
But the protection of a person's general right to privacy - his right to be let alone by other people - is, like the protection of his property and of his very life, left largely to the law of the individual States." Katz v. United States, 389 U.S. 347, 350 -351 (footnotes omitted).

I am not sure why you fail to see the "general right of privacy" - "yellow brick road" tying these cases together. It would apparent that the Blackmun did!
1.20.2006 10:07pm
Neal Lang (mail):
What conservative talking points blog do you get your citations from?

Findlaw and our Constitution.
1.20.2006 10:10pm
Medis:
Andrew,

I certainly agree that military commanders can also issue military rules and regulations with general applicability. Obviously, so can Congress. Similarly, Congress has some ability to pass bills for particular cases (although not always--eg, they can't bass bills of attainder). Indeed, a declaration of war is obviously a case-specific action.

Anyway, my point, of course, is not that the President has no power to make military rules and regulations through Executive Orders. Rather, my point is simply that this power is not exclusive, and when Congress passes such a law, the President is bound to execute it, not replace it with some rule of his own devising.
1.20.2006 10:18pm
jrose:
Neal,
Quoting from Katz: "But the protection of a person's general right to privacy - his right to be let alone by other people - is, like the protection of his property and of his very life, left largely to the law of the individual States."
If a general right to privacy is left to the States, that means a general right to privacy isn't protected by the Fourth. In fact your quoted section is preceded by:
the Fourth Amendment cannot be translated into a general constitutional "right to privacy."
Are we in agreement that Katz did not establish a general right to privacy?

I agree that Blackum used Katz (among other cases) to build a road so that abortion is protected by a general right of privacy. But, that did not alter the the finding in Katz that the Fourth does not grant a general right to privacy. Are we in agreement on this point?
1.20.2006 10:41pm
John Lederer (mail):
Why doesn't the Congress have broad if not complete authority to do whatever it wishes with the military under the "government and regulation" clause?

"Government and regulation" has a different meaning in the historical military context than the broad modern meaning of "regulation".

"Regulate" in the military context means "disciplined and/or drilled". We have the same ambivalence in the modern verb "regulate" which can both mean "regulated" in the modern sense and mean "standardized","measured", "ordered" or "timed" (one "regulates" a clock). The latin root has the same ambiguity meaning both "rule or reign" and "according to measure". Our noun "rule" has the same ambiguity, referring both to a reign and to a edge for making lines straight. "Govern" has a similar ambiguity: think of a governor on a motor and a governor of a state.

The military context can be seen in the phrase "regular troops" meaning "disciplined and state ordered" troops. Reduced to its outward essence, regular troops were troops that performed coordinated maneuvers and loaded and shot their weapons at the same time. Irregulars did not.

It can also be seen in the 2nd amendment phrase "well regulated" which probably had the meaning "drilled in the manual of arms" as it was used in that sense in military manuals of the period. A "well regulated" militia was thus a drilled militia, able to function, at least in hypothesis, as a coordinated body.

At least in my view, which I do not contend to be expert, the "government and regulation" clause means something far less than a a general charge to exert what we would call "command" This seems to be the meaning ascribed in the older cases, which seek to differentiate "command" and the establishment of military structure and discipline.

The creation of a SIGINT capability, its structure, its TOE (Table of organization (people) and Equipment), and its discipline, is controlled by Congress. Its employment, by the CinC. I realize that one could argue that a rule such as "do not surveil without warrant" is simply a disciplinary rule like "do not sleep on sentry duty" or "do not rape and pillage", but I think a fairer reading is that it is an abridgment of the commander's prerogatives--an instruction to aim the cannon at that target.
1.20.2006 11:15pm
Just an Observer:
I might throw one thing into this discussion:

FISA is not only a regulation of the armed forces' actions within the United States, which regulation can be based in part upon Congress' power "to make rules for the government and regulation of the land and naval forces."

FISA also governs the FBI, the Department of Agriculture and its employees, the Rotary Club, you and me. That is because one thing FISA does is to criminalize certain behavior in the United States. The power to do so derives from the Necessary and Proper clause.

As such, this criminal law applies to members of the military as well as everyone else.
1.20.2006 11:33pm
Medis:
John L.,

As an aside, I don't see how one can think FISA is equivalent to "aim that cannon at that target". FISA does not direct the government to conduct electronic surveillance of anyone in particular (nor does it prohibit electronic surveillance of anyone in particular for that matter). It simply establishes certain procedures for conducting electronic surveillance, without specifying any particular target of those procedures. Indeed, I think your analogy is useful for explaining what FISA is not--it is not something like an order to conduct surveillance of a certain target.

As for what the Founders meant by "government and regulation": this is part of why I think it is useful to look at the contemporaneous Articles of War--presumably they tell us a lot about what the Founders thought that meant. And as I have noted, one of the obvious purposes of the Articles of War was to put procedures in place in order to prevent the armed forces from bringing harm to the "good people of the United States" during times of war (a particularly pressing problem in the Revolutionary War, I might note).

Indeed, one of the things the Articles did was explicitly subject military personnel to civilian law and civilian law enforcement. As JaO points out, that is really what FISA is--it is not just a military law, but rather a "law of the land," enacted for the protection of the rights of United States persons. And so requiring the armed forces to obey this law as they conduct military operations inside the United States is fully supported by the original practice of the Founders as represented by their Articles of War.

Finally, I note as an aside that this is just one of several relevant provisions of the Constitution. As we have discussed before, defining "offenses" against the "laws of nations" is also an enumerated Congressional power, and contemporaneous sources also confirm that the "laws of nations" includes what we would recognized as the laws of armed conflict.
1.21.2006 12:03am
Defending the Indefensible:
I think Medis' analysis is spot on.
1.21.2006 12:13am
Noah Klein (mail):
Neal,

I am going to try to explain this to you clearly and precisely. The "expectation of privacy" is not the same thing as the "right of privacy." Its clear when you read the words. First, here is Dictionary.com's definition of expectation:

"The act of expecting.
Eager anticipation: eyes shining with expectation.
The state of being expected.

Something expected: a result that did not live up to expectations.
expectations Prospects, especially of success or gain."

Legally, the "expectation of privacy" is the subjective belief of an individual that their conduct is private. In other words, the "expectation of privacy" would come into play when a person is in their home. A person in their "expects" that their actions will be private. This does not mean that their conduct is private, but they have a believe that it is.
Now this is different than a "reasonable expectation of privacy." A "reasonable expectation of privacy" is the "objective" standard that a reasonable person would or would not expect his/her conduct or papers or so on would be private. For example, a reasonable person would not expect that his/her conduct is private when they walk down the street.
For somebody who says that they get their information from Findlaw, you sure don't actually use the website to its full potential. Here is the link and here is the definition of "expectation of privacy":

"a belief in the existence of freedom from unwanted esp. governmental intrusion in some thing or place
(compare zone of privacy)
Note: In order to successfully challenge a search or seizure as a violation of the Fourth Amendment to the U.S. Constitution, a plaintiff must show that he or she had manifested a subjective expectation of privacy in the area of the search or the object seized and that the expectation is one that society is willing to recognize as reasonable or legitimate."

The "right to privacy" is a different thing. It is the natural right from G-d that a person is free from the government intruding on certain choices and decisions of an individual. This, of course, relates to medical practices. A belief and a right are two very different things in the law. A belief can be violated. A right cannot. Here is a link and the Findlaw definition of the "right of privacy":

"the right of a person to be free from intrusion into or publicity concerning matters of a personal nature
(called also right to privacy)
(compare invasion of privacy)
Note: Although not explicitly mentioned in the U.S. Constitution, a penumbral right of privacy has been held to be encompassed in the Bill of Rights, providing protection from unwarranted governmental intrusion into areas such as marriage and contraception. A person's right of privacy may be overcome by a showing that it is outweighed by a compelling state interest."

I hope this clears your random connection of this issue with abortion. The problem might be that you assume that the definitions of things are the same in the normal course of language as it is with the legal definitions. This is not the case. I would suggest that you purchase a copy of Black's law dictionary or use Findlaw's dictionary more often, because otherwise you are going to constantly confuse things and not make your points clear. In saying this, I am not trying to demean you. I suffered from the same problem when I was younger and I was corrected of this mistake when I first looked at Black's Law Dictionary.

Noah
1.21.2006 2:02am
John Lederer (mail):

Medis said:

"This key step in this argument is the implied premise--which occurs elsewhere in the paper as well--that if the President determines that something is necessary and appropriate, then legally it is necessary and appropriate. In other words, the paper proposes that the President alone can determine what is necessary and appropriate, notwithstanding any other federal law.

Of course, there is a notable and reasonable alternative to this premise: that the President's determinations are not the sole arbiter of what is necessary and appropriate, but rather that other applicable federal laws also restrict what options are in fact appropriate, regardless of what the President might determine. In other words, it is not appropriate to break the law. "
======================
But it clearly is appropiate to break the law in some circumstances. The interceptors sent out of Olmstead AFB to New York on September 11th broke the law. They went supersonic over a populated area, a violation of the law. The DC ANG interceptors were prepared to violate the law even more extensively by firing on a civil airplane with 40 passengers--albeit only with target rounds because that was all they were armed with. Clear violations of law.

I think the rub in this case is that only the President can make the determination because of the secrecy required. He (and General Hayden) have asserted that they cannot comply with FISA, even with its emergency provisions, and obtain needed war intelligence because of the need for "speed and agility" and underlying changes in technology. Are they correct? Who knows save them?
1.21.2006 9:55am
Bushrod, J. (mail):
Earlier I said, "For those suggesting *only* the president may determine foreign policy," the SCt has made clear that Congress absolutely has a significant role in foreign affairs.

AS said in response: "Nobody, including the Administration, is suggesting that. What the Administration suggests, and I agree with, is that the President's power is preeminent solely with respect to the fundamental incidents of the use of military force."

Here's what the administration actually said:

"The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief *and sole organ for the Nation in foreign affairs* . . . " Memo at 1 (emphasis added)

And this too:

"As the Supreme Court has explained, '[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (internal quotation marks and citations omitted)." Memo at 6-7.

Sorry AS, you're claim that the administration is not relying on the president's purported role as the "sole" arbitor of how to conduct foreign affairs is contrary to the White Paper.

The administration is absolutely relying on the claim that only the president determines foreign policy.

The Supreme Court flatly disagrees -- or at least it used to.

And I'm not contesting that eavesdropping without a warrant on foreign agents in the U.S.

What I challenge -- as Rehnquist's opinion in Verdugo-Urquidez, 494 U.S. 259 (1990), makes clear -- is the administration's position that it may spy on Americans in the same way it spies on foreigners in the US.
1.21.2006 9:56am
srg (mail):
Medis and John Lederer,

I agree with John that there is at least a case to be made that FISA and the AUMF are incompatible. If this is so, one hopes that the Bush administration made this case at least to the members of intelligence committees and other members of Congress with whom they met. In emergencies it is true that there are rare cases where the President must break the law, as Lincoln did by suspending habeas corpus, but Lincoln's action had the virtue of being open, and, as Medis has pointed out, he was retroactively justified by Congress's actions.
1.21.2006 12:05pm
John Lederer (mail):
Srg:

Granted not completely open, but 14 members of Congress (8 plus successors) and the Chief of the FISA court were briefed on the program. Moreover, Congress has not taken the obvious step of removing financial support, nor, in my estimation, will they.

I think they will be very content to carp and criticize while letting Bush take the considerable political risk.

Perhaps it is a bit like McCain's position on torture-- "we will absolutely prohibit it, but expect the President to ignore the law if absolutely necessary in a ticking bomb scenario".

Neither political bravery nor clarity are survival characteristics for congresscritters.
1.21.2006 1:12pm
Medis:
John L.,

As an aside, are you sure either of those actions (going supersonic and potentially firing on a civilian flight) were illegal? I ask because most laws have some sort of emergency provision.

In any event, I have suggested before that in an unanticipated emergency, it may be lawful for the government to bypass certain procedures (of course, if the emergency in question was anticipated, and law provided for emergency procedures, then those are still binding). I actually don't think that is the same thing as breaking the law (I think such actions are lawful under certain limited circumstances), but that is a side issue.

However, as I also suggested, I don't think that sort of rationale can continue once there has been enough time for the legislative body to act. In this case, I think the absolute last date would be the date of the passage of the USA-PATRIOT Act, because clearly at that point FISA could have been amended by Congress (because it was amended).

As for secrecy: our democratic and parliamentary system of government does not allow for the President to put his own laws in the place of the laws passed by Congress, keeping those laws secret from both Congress and the citizens of the United States. Indeed, as citizens we are entitled to know our rights under the law, and to petition our representatives in government for changes to the law.

Some people think that openess is a weakness of democratic and parliamentary systems. Personally, I think such people are short-sighted (in the long run, democratic and parliamentary systems have beaten all their competitors). Moreover, as is often pointed out, it is in part those aspects of our society that make it worth fighting for.

In any event, that is our system of government, and the President has no authority to change it. Not even if he really really think we would be better off doing things his way.
1.21.2006 2:13pm
Neal Lang (mail):
If a general right to privacy is left to the States, that means a general right to privacy isn't protected by the Fourth. In fact your quoted section is preceded by:

If a "general right of privacy" was truly "left to the States" the decision of the Supremes in Roe v. Wade would not be possible. The fact that the majority in Roe "pinned" the "general privacy right" hat in part on both Olmstead and Katz, only highlights the illogic of this truly monumentaly illogical decision. Of course, I am not trying to justify the unjustifiablem which is exactly what the Supremes did in Katz and Roe. The same goes for how the Supremes "amendeded" the 4th Amendment by judicial diktat to include "surveillance"; "conversations"; "electronic monitoring"; etc. - all words that cannot be found in the Constitution as ratified. The entire NSA Surveillance kerfuffle, as it relates to necessity of obtaining 4th Amendment "probable cause warrants" in order for the Commander-in-Chief to carry out his Constitutionally mandated "duty" to "preserve, protect and defend the Constitution of the United States" (BTW, in the context of the President's Oath of Office, the "term" - "Constitution of the United States" is in actuality the "Republic"), is predicated on Katz overturning Olmstead thus establishing "surveillance" being the same as "search and seizure", "telephone conversations" being the same as "papers and effects" that might be enumerated on a "warrant", and "electronic surveillance" over a "Public Utility" being the same as "physical entry" of a specific "place".

IMMHO, the Supremes' usurped "power" to "divine" the true "spirit of the Constitution" has done much more "harm" to "the People's" human rights than it has "good". I say "usurped" because the primary Framers of this document did not include a "power" of the Federal Judicial to "interpret" the "spirit" of the Constitution beyond what was put on paper and reported out of the Continental Congress to several States for ratification. I believe "Publius" express this best in Federalist 81, to wit:
LET US now return to the partition of the judiciary authority between different courts, and their relations to each other.

"The judicial power of the United States is" (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish."1

That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body.

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.

But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity.

These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended.

It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts,2 and the relations which will subsist between these and the former.

The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or authorize, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits.

But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much "to constitute tribunals," as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. I should consider every thing calculated to give, in practice, an unrestrained course to appeals, as a source of public and private inconvenience.

I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution.

These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union.

The Supreme Court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party." Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.

Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.

Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, "with such exceptions and under such regulations as the Congress shall make."

The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word "appellate," therefore, will not be understood in the same sense in New England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court.

But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.3 This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts.

The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States all causes are tried in this mode4; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.

This view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial.

The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source.

PUBLIUS

1. Article 3, Sec. 1.

2. This power has been absurdly represented as intended to abolish all the county courts in the several States, which are commonly called inferior courts. But the expressions of the Constitution are, to constitute "tribunals INFERIOR TO THE SUPREME COURT"; and the evident design of the provision is to enable the institution of local courts, subordinate to the Supreme, either in States or larger districts. It is ridiculous to imagine that county courts were in contemplation.

3. This word is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law.

4. I hold that the States will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper. From: The Federalist No. 81 - The Judiciary Continued, and the Distribution of the Judicial Authority by Alexander Hamilton

With regards to the "harm" done by the Supremes unconstitutionally "usurping" a "power", not expressed anywhere in the that document, to meet in Judicial "seance" so as to communicate with and report to "the People", the "spirit" of "the People's Consitution - the carnage is long and bloody. However, let's just pick the "highlights":

First, we have Chief Justice Roger Brooke Taney's infamous "Dred Scott v. Sandford" - arguably one of the worst, as the Justice latched onto the compromise of the Constitutional Convention on how to account for slave in the apportionment of Congressional Representatives and used this purely political clause in the divining a "spirit of the Constitution" that completely destroyed the essence of the "Self-evident Truths" which formed the bedrock foundation of our Nation. Mr. Chief Justice Taney "harm" to "human rights" included a "death of toll" of millions, over 500,000 of whom died in the Civil War, a sruggle to "preserve, protect and defend the Constitution of the United States".

Second, while the "harm" to "human rights" are many, I believe that most egregious is the one we are currently discussing - Mr. Justice Blackmun masterpiece - "Roe v. Wade". While Chief Justice Taney's effort merely rearranged the "ordered", Creator endowed, unalienable rights so as to allow the "property (pursuit of happiness) rights" of slave ownes to trump the "liberty (and life) rights" of African blacks whose only sin was being illegally captured in the homeland and sold as "chattel" to various landowners in the New World, Roe truly upset Jefferson "Self-evident Truths" by allowing a woman's liberty rights, in the form of an all-powerful "general right of privacy to choose to murder her prenatal baby" to trump the "right to life" of her innocent, unborn baby. While Dred Scott's "bodycount" was horrible, Roe's is unspeakable, averaging over 1.3 million annually and over 40 million since 1973. In the list of Historical Human Tragedies, the Supremes Roe v. Wade decision (at +/- 42.9 million) would rank "No. 2", just after WWII and before Mao's Communist Revolution in China and the Mongol Conquests, to wit:
(Possibly) The Twenty (or so) Worst Things People Have Done to Each Other:

Rank -- Death Toll ---- Cause -------------------- Centuries
1 -----55 million ---- Second World War -------------- 20C
2 ---- 40 million ---- Mao Zedong -------------------- 20C
3 ---- 40 million ---- Mongol Conquests -------------- 13C
4 ---- 36 million ---- An Lushan Revolt --------------- 8C
5 ---- 25 million ---- Fall of the Ming Dynasty ------ 17C
6 ---- 20 million ---- Taiping Rebellion ------------- 19C
7 ---- 20 million ---- Annihilation the Indians -- 15C-19C
8 ---- 20 million ---- Iosif Stalin ------------------ 20C
9 ---- 19 million ---- Mideast Slave Trade -------- 7C-19C
10 --- 18 million ---- Atlantic Slave Trade ------ 15C-19C
From: The Twenty Worst Things People Have Done to Each Other:

The blooger, whose "noum de net" is appropriately "Defending the Indefensible" inquired as to the "conservative" sources o my Constitutional argument. I found this rather amaing, as first, I don't consider myself a "conservation" and second, that I do consider myself a "liberal". In fact, I truly believe that the vast majority of our Founding Fathers were "liberals", like me. Th problem is that Leftist Elitist (many of whom have found their way onto the Federal Courts, including the Supreme Court, have given "liberalism" a bad name.

The form of "liberal" to I ascribe, and which I truly believe our Founders practiced is "Classical Liberalism",, to wit:
CLASSICAL LIBERALISM: A term used to describe a political philosophy commonly held in nineteenth-century England and France but now undergoing a renaissance in the United States. Classical liberals advocate free markets, a vibrant array of nongovernmental institutions (such as civic groups, schools, churches, etc.), and minimal tax-financed government services. Classical liberals firmly believe that both persons and property should be protected from physical harm. They also emphasize the strict enforcement of contracts. Classical liberals, following Lord Acton, consider liberty to be the highest political value but not to the point of becoming a worldview. Examples of classical liberal thinkers include Frederic Bastiat*, Lord Acton*, Alexis de Tocqueville*, John Locke*, John Stuart Mill*, and Friedrich Hayek*. From: Dictionary of Key Terms for a Free and Virtuous Society

I firmly believe if our Founders would see what the Nation they founded, based on "Self-evident Truths" has metastasized into, primarily because of a "run-away" Federal Judiciary, that they be truly sadden.

While Roe and Dred Scott rank as the worst, other decisions of the Supremes have also done several damage to the "rights (both civil and human)of the People", and also to the government that Framers "instituted to secure these rights".

This can be readily seen by viewing how Leftist Elitist jurists have distorted the Bill of Rights. The Framers of our Constitution understood the difference between "liberty" and "license":
license, n. Deviation from normal rules, practices, or methods in order to achieve a certain end or effect.

liberty, n. Freedom from unjust or undue governmental control.

Take the first Amendment as an example
Article the third [Amendment I]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

- the rights identified as "freedom of speech and of the press", and the rights of the people "to assemble and to petition the Government" are surely political rights, their to insure that "the People" would always have the political wherewithal to influence THEIR government so as to insure THEIR liberty. The Supreme have taken the "civil rights" of freedom of "political speech and press", and distorted to a point where they "protect" the "license" to print, speak and broadcast pornography but do not secure the right of "the People" to create, finance, and run "political ads" directed at insuring the electorate is familiar with the voting records of incumbent political candidatess. Amazing!

The clauses in the First Amendment designed to insure "the People's right" of conscience necessary allow them to worship God (or not) as they please, have been "morphed" into a "Wall of Seperation" designed to belittle "the People's" worship and to remove from the "public arena" the very God that our Founders identify as the "SOURCE" of the "Human Rights" whose "security" is the SOLE reason for which man comes "out of nature" and the gives a portion of his Creator ndowed "sovereignty" in order to institute a government. Amazing!

BTW, this "Wall of Separation" idea comes not out of anything in the Constituion, but instead discovered by Associate Hugo Black in a letter of President Thomas Jefferson, answering a "petition" of the Danbury (CT) Baptists. The Baptists of Danbury apparently wanted Jefferson to have the Federal Government do something about the situation the Baptists of Connecticut were experiencing because the State taxes were being used to promote another Christian denomination, Congregationalist, who happened to be the "official religion" of that State. Jefferson, being a Virginian, understood about "State Religions" where the "official religion" was the Episcopal Christian denomination. Things were so bad in Virginia, that other Christian denominations there, such as Catholic Christians, were denied certain "civil rights", such as jury service, based solely on the brnd of Christian worship.

While the great "civil libertarian", Jefferson, sympathized with the Danbury Baptists, he explained in his letter that the Constitution through the 1st Amendment's "Establishment Clause", prevented him and the Federal Government, from interferring in any way with "the People" of Connecticut's choice of "official State religion", to wit:
Believing with you that religion is a matter which lies solely between man &his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. [Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.]

The Sunday following Jefferson penning this epistle, the President attended Sunday services with the largest church congregation in the District of Columbia, which were being held, temporarily in the Federal Capital Building until that congregation's church construction was complete. Contemporarily with President Jefferson "Wall of Separation" Letter, Christian denominations of all sorts held services in various "public buildings" belonging to the Federal Government. Also, the Congress had and paid an official chaplain who open sessions with prayer, the Congress had established and commissioned chaplains for the Army and Navy, and the Supreme Court, as it still does today, open is public hearings with a prayer, asking "God to save this Court" (I am afraid it is too late). Of course, following Justice Blacks lead, the Supremes have removed prayer and the bible from State schools; removed monuments to the "Law of God" from State courthouses and other public places; banned "student-lead" prayer at all official school activities, and variously have tried to "stamp-out" Christianity anywhere it might raise its ugly head in the public venue throughout United States. What makes this unconstitutional exercise of the Supremes so bizarre is the fact that only Christianity, of all the World religions has developed a culture of real "religious tolerance" in the countries (Western Europe and America) it dominated and is not found in societies where the other creeds reign, such as Islam, Hinduism, and especially atheism. Amazing!

Some of the other Amendments of our Bill of Rights that have received the "Supreme Court Treatment" include the 2nd, where "the people's right" as magically bome "the State's Right", and of course, the 4h Amendment, which we have been discussing.

The worse thing that happened to the 4th Amendment is that it has been changed from a "safeguard" for honest people to a "license" for criminals and now terrorists and "enemy agents" to plot their nefarious deed design to hasten the destruction of our Constituitonal Republic. Of course, if these Leftist Elitists Supreme Court majorities would take a moment to review the record of our Founders regarding the necessity of a "moral and ethical people" in order to insure the continuity of Constitution, the Republic, and society based on true liberty and freedom, the would never seek to ban religious activity from the public arena and facilitate the immoral an criminal activities a a small segment of population.
1.21.2006 2:48pm
srg (mail):
Medis,
You wrote:

"As for secrecy: our democratic and parliamentary system of government does not allow for the President to put his own laws in the place of the laws passed by Congress, keeping those laws secret from both Congress and the citizens of the United States. Indeed, as citizens we are entitled to know our rights under the law, and to petition our representatives in government for changes to the law."

Is this a fair characterization of what the Bush administration did? It kept 14 (if that is the correct number) informed, knowing well that leaks were possible. Furthermore, there is nothing odd about some aspects of laws governing intelligence to be secret.
1.21.2006 3:10pm
Medis:
srg,

There is certainly some information that can legitimately be kept secret by the government. But the actual laws defining what the government can do with respect to the private communications of United States persons (or any similar law which defines the legal rights of United States persons) cannot be kept secret.

As for what the government did in this case: giving classified information to some members of Congress is not the same thing as informing Congress, nor informing the citizens of their legal rights. And, of course, this is not just a point about disclosure--Congress, and ultimately the people, must not only be informed, but they also must have the final say on the laws which define their rights.

Again, there is a great deal of information that need not be disclosed to all of Congress, or to the people. But the rights of the people under the law is one thing that must be fully disclosed.
1.21.2006 3:29pm
Neal Lang (mail):
I am going to try to explain this to you clearly and precisely. The "expectation of privacy" is not the same thing as the "right of privacy." Its clear when you read the words. First, here is Dictionary.com's definition of expectation:

"The act of expecting.
Eager anticipation: eyes shining with expectation.
The state of being expected.

Something expected: a result that did not live up to expectations.
expectations Prospects, especially of success or gain."

Actually, the Supremes saw Mr. Katz's "expectation of privacy" more this way:
expectation, n 1: belief about (or mental picture of) the future

They took the position that when Mr. Katz entered the "Public Telephone Booth" in order to ply his illegal trade of "making book", he had an "expectation of privacy" that extended to his certainty that his illegal activities would not be found out. From this, the Supremes extrapolated that Mr. Katz's expection was, in reality, a "right" formulated from some "general right of privacy" the was part of the "penumbra" they located in the Constitution. The next step was to say that if Mr. Katz "RIGHT" to "general right of privacy" in a phone booth, then they (the Supremes) must "protect" this right by shoe-horning the 4th Amendment "probable cause warrant" requirement to cover "electronic survillance" of all "illegal telephonic conversations" in "public telephone booths". Along the way they overturned Olmstead (de facto) by making the "Brandeis dissent" the majority opinion.

Those are the facts - and the ONLY reason anyone is even talking about "4th Amendment protections" during the "time of war" for "enemy agents" from "intelligence gathering" by "electronic surveillance" while these "enemies" are plotting acts of terror over the "international telephone system" with their offshore "controls" located in the Hindu Kush.
The "right to privacy" is a different thing. It is the natural right from G-d that a person is free from the government intruding on certain choices and decisions of an individual. This, of course, relates to medical practices. A belief and a right are two very different things in the law. A belief can be violated. A right cannot. Here is a link and the Findlaw definition of the "right of privacy":

I suggest you re-read your Locke on matters of "natural law and Nature's God" and the functions and limitation of "natural rights". NONE - NOT ANY - of our "Creator Endowed Rights" can ever be construed to permit one man to harm another innocent man. You will never find any of our Founders, nor the philosophers over the ages, from whom these Founding Fathers developed that concept of Rights, Freedom, Liberty and Government, that opine that our "human rights" are actually "license" to do "evil". The problem is that we are attempting to make a now secularized "Legal System" to define "rights", which our Founders and the Framers derived from the study of theology and philosophy.

While you may have a "choice" (simply because our Founders believed in the theological concept of Free Will), to have that choice be considered a "right" it MUST ALWAY be a "moral" choice. An "immoral choice" can never be a "right" - at least according to our Founders and the philosophers and theologian they developed concept of rights from. What may be legal may not be moral - and as such would never be considered a right. For instance, the "right to choice abortion" is not an unalienable, Creator endowed, "right", but merely a Supreme Court established quasi-right because it harms another. While it might be "legal", it is Moral", so therefor is not truly a right.

An impossible situation, that is getting worse as the Supremes force higher and higher "Walls of Separation" between our government and laws, and their true source. There actions have built a "Wall of Separation" between our "rights" and "morality". The result is "chaos" where women have a "right" to kill their unborn children and terrorists may ply the "evil deeds" secured a "right of privacy" defended by the very government that they wish to destroy. Amazing!.

That said, this so-called "right of privacy" of which you speak (more a "civil right" than a "Creator endowed unalienable right" - or "human right", IMMHO) can NEVER be considered a "LICENSE" to facilitate harm to any innocent, (as abortion surely does), or as hindrance to the government (instituted amongst man to "secure these rights" of "Life, Liberty, and the Pursuit of Happiness [Property]") from performing its duty (as in the case of NSA technicians ferreting out "enemy agents" plotting their nefarious deeds designed to deny thousands of our countrymen their "right o life" while using a "Public Utilty"). It is really not too complicated - "A right may not never be exercised to do harm the innocent." The "good" and "evil" is not a function of "civil law" but instead "moral law" - abortion is morally wrong, and therefor can never be a "right", no matter what the Supreme Court says. This empirical - it is the "Self-evident Truth" of the morality which is the "Natural Law". Again, reference Locke to see what I mean.

This concept extends to bringing down of a tyrannt by "the People" - despite civil law to the contrary. It is the reason why "the People's right to keep and bear arms" most never be "infringed". However, this 2nd Amendment right can never be exercised to do "evil". It is really common sense, which I am afraid the lawyers complicate. The Supreme Court, who IMMHO see this relationship between Natural Law and our Rights is Associate Justice Clarence Thomas. It is one of the reasons the so-called "legal experts" underrate him and his opinions. They simply don't understand them and their source.
I hope this clears your random connection of this issue with abortion. The problem might be that you assume that the definitions of things are the same in the normal course of language as it is with the legal definitions. This is not the case. I would suggest that you purchase a copy of Black's law dictionary or use Findlaw's dictionary more often, because otherwise you are going to constantly confuse things and not make your points clear. In saying this, I am not trying to demean you. I suffered from the same problem when I was younger and I was corrected of this mistake when I first looked at Black's Law Dictionary.

The connection between the "penumbra" of rights eminating from the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments that permits the murder of innocent unborn babies and also INSURE the undisturbed plotting of murdering terrorists is absolutely one and the same.

The problem is your understanding of a "right" and unfortunately the "Findlaw Dictionary" won't help:

right 'rit] Old English riht, from riht righteous

1 a: qualities (as adherence to duty or obedience to lawful authority) that together constitute the ideal of moral propriety or merit moral approval

b: something that is morally just
Example: able to distinguish right from wrong


2: something to which one has a just claim: as

a: a power, privilege, or condition of existence to which one has a natural claim of enjoyment or possession
Example: the right of liberty
Example: that all men . . . are endowed by their Creator with certain unalienable rights — Declaration of Independence (see also natural right)

b: a power, privilege, immunity, or capacity the enjoyment of which is secured to a person by law
Example: one's constitutional rights

c: a legally enforceable claim against another that the other will do or will not do a given act
Example: the defendant may be under a legal duty . . . to exercise reasonable care for the plaintiff's safety, so that the plaintiff has a corresponding legal right to insist on that care — W. L. Prosser and W. P. Keeton

d: the interest that one has in property: a claim or title to property (often used in pl.)
Example: a security interest is not enforceable . . . and does not attach unless . . . the debtor has rights in the collateral — Uniform Commercial Code
Example: leasing mineral rights
(see also real right)

e pl
: the interest in property possessed (as under copyright law) in an intangible thing and esp. an item of intellectual property
Example: obtained publishing rights

3: a privilege given stockholders to subscribe pro rata to a new issue of securities generally below market price

- which must be congruent with that of the Framers. The Findlaw definition that is closest to how the Framers saw "rights" I have italized and bolden - but is not complete. The bulk of these definitions apply more to LICENSE then to any right which may derive from the Creator.

Rights are as much a "duty" or "responsibility" as they are a "privilege". For example, "the People's Right to keep and bear arms" is an "individual right" closely associated with the "right to Life" (self-defense) and part of the protects for you "right to property". However, it is all part of the protection to your "right to liberty", and as such a "duty" and "responsibility" to train and participate in the militia to defend your country and neighbors from invading despots, rebelling anarchists, and a tyrannical government. It was understood that all able-bodied men would be armed with their own arms because it was their "right" and the "duty" to do so. It was understood that every man would be available to be called (subject to any personal qualm of conscience), with his own arms (that he has practiced using so at be "well regulated"). This "duty" included not only the "militia" call, but also a "posse comitatus" call from the local magistrate (sheriff) or even his neighbor's call for assistance with wild beasts or brigands. It was this "duty" to be armed, which made possible the idea that Virginia could pass an ordinance whereby anyone travel between "builtup areas" must arm themselves, and reasonabbly expect that such would be obeyed.

One may never exercise their rights to do "evil" - again check with Locke to understand what I mean. This is the basis of our "unalienable rights" - which come from our Creator, however which can never be used for "evil". Rights are not "license"! Every one of Founders would agree with that. Most of the Supremes see rights as something permitted by government and divorced from "morality"! That, I am afraid, is the problem - "Rights" can never be divorced from morality ("duty" and "responsibility"), which is the reason that our Founders, to a man, proclaimed that the liberty and freedoms (rights) enshrined by our Constitution can never exist but for a "moral and ethical" people. Unfortunately we are losing our "morality", along with our Constitution and our "rights".

BTW, the Findlaw Dictionary is not "Black's Law Dictionary" but instead:
Merriam-Webster's Dictionary of Law ©1996.
Merriam-Webster, Incorporated.
Published under license with Merriam-Webster, Incorporated.


As for being younger, hope to celebrate my "3 score and 1 year" this next Tuesday, although I admit I learn something new every day. When I stop learning, I hope to be with God and know all the answers.
1.21.2006 5:27pm
Neal Lang (mail):
What we have here folks is the result what happens when a Nation, founded on "Self-evident Truths" is being "governed" as a Republic that was "instituted" by a Constitution, which was written and ratified by "the People", also on the basis of "Self-evident Truths", that has been highjacked by a bunch of "lawyers", who happen to be Supreme Court Justices, who are interpreting "the People's" Constitution on the basis of an "incomprehensible" penubra, instead of "Self-evident Truth".
1.21.2006 5:41pm
volokh watcher (mail):
Neal Lang:

In 215+ years of this Republic, no Congress, no Executive, no Supreme Court, nor the people, nor the history/poli-sci/civics textbooks have adopted the theory of constitutional construction you've offered in this string. This country would look awfully like the a rudderless ship if any of those groups had. But they didnt't and haven't -- yet. Why would that be?
1.21.2006 6:16pm
Defending the Indefensible:
Neal Lang,

I think I am understanding where you are coming from, and I agree with your definition of rights. Rights are contradistinguished from wrongs. But to say that I do or do not have a moral right to do something, does not necessarily give you (or the state) a moral right to do something else.

Let's put aside the textualist arguments, and just talk about privacy in a moral sense. I have the moral right (I hope you will agree) to make love to my wife. There are other things I could be doing in my home that would be morally wrong. Absent a probable cause that I am doing something wrong, do you (or the state) have a moral right to OBSERVE the interior of my home, and therefore to watch me make love with my wife?
1.21.2006 6:27pm
Noah Klein (mail):
Neal:

Then I hope you learn something soon, because if you don't then your desire will not be fulfilled. I was not saying that I was older or younger than you, I was explaining that I suffered from the same misunderstandings that you suffer from now when I was younger.

The issue is that you are not fully reading things. Furthermore, you are single-minded with such a narrow focus that you cannot view something outside the prism of this tiny world in which you exist. You consistently misread the intents of documents to suit your purposes. You consistently focus on the words in some text that will support your viewpoint to the exclusion of all other words, which demonstrate you are wrong. This is pretty unique, I hope. I have never met someone who can so easily read something that rejects their bias as something that supports their point.

In the definition you cite you do not read all the definitions that reject your understanding, just the denotations that you think are supporting your beliefs. For example, you miss:

"2: something to which one has a just claim: as

"a: a power, privilege, or condition of existence to which one has a natural claim of enjoyment or possession
Example: the right of liberty
Example: that all men . . . are endowed by their Creator with certain unalienable rights — Declaration of Independence (see also natural right)

"b: a power, privilege, immunity, or capacity the enjoyment of which is secured to a person by law
Example: one's constitutional rights"

As you can see, if you read these words that Findlaw (or the Merriam-Webster Dictionary of Law, still a law dictionary and not a normal dictionary) gives, you'll also notice that it shows that the above definitions are the definitions of a natural and constitutional right. Furthermore, as a student of English for 37 years, you will know that words have different meanings for different contexts. The word "right," as in a "moral right" and the "right thing," is different than "a right." This is not the only example of your misreading documents, but it is the most blatant and thus I hope the most easy for you to recognize and understand.

I enjoy debating people of your viewpoint. There are many authorities and experts who promote some the ideas that you promote. And I love to see, if my understanding of an issue is able to "hold water" to these eminent people's presentation of an issue. I think that volokh watcher is correct that your "theory of constitutional construction" is not supported, but many of the opinions that you have stated have been promoted by many intelligent people of great weight and authority. It is the disdain that you express toward your opponents in policy and interpretation of the law. It is the contempt that you express toward those who disagree with you that has provoked this response to you and I believe others' comments toward you.

You do not seem to understand that we all grew up in somewhat different cultures, but we are all Americans. We have studied and learned; we have molded and refined our ideas; everyone here has done each of these things. And I do not think I am going too far to state that all people on this blog love our country. We love the system that those great men created 220 years ago. We love the law and the greatest system so far imagined by man which is doing its best to protect G-d's greatest gift to His children: our "life, liberty and pursuit of happiness."

Our effort to learn and grow, of course, is not complete and we all should be happy to hear new ideas and weigh them with what we have learned throughout our lives. Yet you seem to be unable to do this. You are rigid and bullheaded in your beliefs even when it is demonstrated that your reading or understanding of an issue is wrong. If you go back through this blog, you will notice that I and many others have made mea culpas for facts that we presented that were demonstrated to be wrong. You have never done this, not once. When someone demonstrates that you have misstated a fact or that you have misquoted something or that you have misread something, you have not admitted nor even addressed it. Instead, you move to some tangential point and try to attack their argument from some flank you think is exposed, but the flank is refused and well-defended. Amitting to an incorrect understanding of something is not the sole means to demonstrate that you are not rigid or bullheaded. Accepting something put forth by your opponents' is also another means of showing that you wish debate someone honestly. I have never seen you do this. Not once. I have been blogging on this website for only a couple of weeks and yet I have seen so many, even the owner of this website, do what you appear unwilling to do. Why? Where do you come from that you feel you are always correct and always good? I have felt G-d and I know He is always close, but I have never seen or heard Him. You act as if He speaks in your ear constantly. Please do not read what I write as an admonition, but as a person attempting to reach another. I am trying to see if you are collection of stubborn positions or a person who is willing to grow. Can you see this?

Noah
1.21.2006 10:17pm
Neal Lang (mail):
I think I am understanding where you are coming from, and I agree with your definition of rights. Rights are contradistinguished from wrongs. But to say that I do or do not have a moral right to do something, does not necessarily give you (or the state) a moral right to do something else.

I believe the relationship between "rights", "morality", and the State is not linear. You have a "right" to own and use "property" that you have acquired legally, through your own "sweat". The State must respect and protect (from me or the State itself) your "right" to own and use your property. However, if you use your property for something "immoral" - say a brothel for pedophile sex (thus infringing on the rights of the children you use, your customers corrupted by your operation, and perhaps, on the property rights of your neighbors - to the extent that your brothel reduces the value of their properties). Then you have no right to expect the State (or me, for that matter) to "respect and protect" your "property rights". Your "property rights" only extend to your "moral" occupation and use of your property.

Where the problem comes in is something that is "legal" may not be neccessarily "moral". Morality does not come from a law book or the book of municipal codes. According to our Founders, it comes from "Naturl Law", where all men naturally understand "right" form "wrong". "Liberty" allows men to use their "free will" to "follow their conscience" and do the "right" or "moral" thing.

You and I have an unalienable right to "keep and bear arms". However, we do not have the "right" to "bear arms" in an "immoral" way - a way that interfers with another innocent man's "rights to Life, Liberty, or the Pursuit of Happiness (Property)". Again, I am not referring to Government's "Positive Law" or Common Law (what is or is not legal), but which may or may not be "moral", which is the Natural Law or the Declaration of Independence's "Law of Nature and Nature's God". Allowing for both sanity and maturity, all men know "right" from "right" inituatively from the internal understanding (a.k.a. your conscience) from "Natural Law" endowed us at the same time and in the same way as our "unalienable rights".

Let's put aside the textualist arguments, and just talk about privacy in a moral sense. I have the moral right (I hope you will agree) to make love to my wife. There are other things I could be doing in my home that would be morally wrong. Absent a probable cause that I am doing something wrong, do you (or the state) have a moral right to OBSERVE the interior of my home, and therefore to watch me make love with my wife?


Okay! You may make love with your wife, as long as your love making does not injure your wife (morally, physically or mentally) or anyone else. You have a "martial right" to expect her love making. However, she has a martial right to expect you to protect her and not to do something that might harm her. The traditional understanding of this "martial right" had the moral purpose within Natural Law of child bearing - hence Connecticut's prohibition for Contraceptive Sales, even for married couples that was overturned by Griswold. This was a case of the State making "Positive Law" to support a "Natural Law" morally. The Feds trumped Connecticut "Positive Law" and possibly violation the Federalism contact between Connecticut and the Federal Government, executed by at the Connecticut ratified the Constitution.

The NSA Surviellance Case Privacy argument is bad enough, so I just as soon leave condum use privacy aside. Suffice to say, IMMHO, the Supremes overturned Connecticut's "Positive Law" prohibition on contraceptive sales, immorally to the extent that it may have violated the Federalism Contact. By doing that, contraceptives became available to married (and unmarried) love-makers. In doing this contraceptive use became "legal" in Connecticut. However, although being "legal" contraceptive use (married or otherwise) remains "immoral" under "Natural Law" (which is unchangible - being the Self-evident Truth). Prior to 1930, virtually all Christian denominations (not just the Catholics) in the US held the use of contraceptives to be a sin. Today, only the Catholic Church has such a teaching (and less than 1/2 of the nominal Catholics keep it).

If you are doing something "in the privacy of your home" that is "immoral", you might have a "civil right" (a right extended to you by the State) to expect privacy, as long as it is also legal. You have no "civil right" to privacy to violate "Positive Law" (doing something illegal), even in your home. However, for the State to "invade your privacy", in order to gain evidence to prosecute you for your "Positive Law" transgression, other "Positive Law" (civil rights) requires that the State "jumps through hoops" (in the form of a probable cause warrant) in order to collect that evidence (unlike situation should you be violating the same "Positive Law", on the corner of "Front and Grunt" in full public view). Unlike "Creator endowed human rights", State granted "civil rights" exist at the pleasure of the State and society. The 4th Amendment could disappear completely either by diktat of the Supremes or politically through the Amendment process of Article V. Your rights to life, liberty and pursuit of happiness (property) are "unalienable", even you have no "authority" to give them away. The only way you may "legally" lose such rights, is if you are an unborn baby and the Supremes determine that your mother has a "right of privacy to choose to end your life". Of course, your death would be legal but at the same time "immoral". According to the State, your "right to life" was legally forfeit, however, in reality, your "right to life" had been violated, and your mother was "morally wrong". Interestingly, our Nation was founded on the "Self-evident Truth" of the Equality of men and "Creator endowed, unalienable rights, including Life, Liberty, and the Pursuit of Happiness (Property)". According to the Founders in the Declaration, is an "unalienable right" for men to "institute a government" solely to "secure" for himself and his fellow countrymen these "unalienable rights". Also that, should his government fail in this sole task to "secure these rights", man reseves the right to "abolish that government and establish a new one" that might better secure this rights. Our Constitution was drafted and ratified to serve that singular purpose - "to secure these rights".

When the choice is between the "civil rights" of a terrorist, and the lives of thousands, and even the destruction of the Constitutional Republic - a "civil right" of privacy enforced by "probable cause warrants" cannot balance the scales against the potential violence that might be caused by that terrorist, left unhindered do to that "civil right". Unfortunately, we cannot always trust that our government is doing the "right" thing. However, on balance, I think we must give our government the latitude necessary to "secure these rights", and if they should fail our trust in this choice, we should punish them "severally" for their PROVEN transgression.

BTW, making love with your spouse in the privacy of your home is both "moral" and "legal" (unless your wive is also your daughter). Making love with your wife on the corner of "Front and Grunt", could be "moral" but will be most likely "illegal".

Personally I would prefer not do my "love-making" in public (even if I don't know I am being watched). However, if the price I must pay for the security of the lives of my wife and kids is a little "warrantless" window-peeking, as long as our pictures don't make it on the Internet, I am willing to accept that minor incursion into the "sanctity" of my "castle". Of course, being that I am usually armed, any peeker might find out that in Florida we have the "Castle Law", and that it could be problematical for their "health and safety" to be "spooking" around my house in the dark.

BTW, the State does not have "rights", moral or otherwise - they have "authority" and "powers", from the "sovereignty" delegated to the State by men. "Authority" and "power" must always be "moral" - they cannot ever be "neutral" or "evil" (immoral) as then the State loses legitimacy and become a tyranny, activating man's "right" to "change or abolish it". The "right to keep and bears arms" has a direct nexus to this right, and any idea that the State may "infringe" on this right (when exercised morally) is "counter-intuitive" to idea of ordered rights and liberty expressed so often by our Founding Fathers.


Again, man never has a "right" to do "evil". Unless I am responding, as a "good" neighbor, to your wife's cries for help, I have no "right" to invade your "privacy", without your invitation.!
1.21.2006 10:25pm
Jack John (mail):

This key step in this argument is the implied premise--which occurs elsewhere in the paper as well--that if the President determines that something is necessary and appropriate, then legally it is necessary and appropriate. In other words, the paper proposes that the President alone can determine what is necessary and appropriate, notwithstanding any other federal law.



Yes, but you're ignoring how this argument is made. The white paper quotes AUMF, which uses the words "he determines". In other words, the President making such a determination is consistent with the relevant Congressional authorization. He isn't breaking the law, he is enforcing AUMF over FISA. To the extent FISA contradicts AUMF or Article II, it is either repealed, set-aside on an as applied basis, or unconstitutional. Nowhere is the claim made that the President can break the law.
1.21.2006 11:59pm
Jack John (mail):

So, by assuming the President's determinations define what is "necessary and appropriate" for the purposes of the 2001 AUMF, the paper's argument is clearly question-begging.



This is not an assumption: this is what the text of AUMF actually says.
1.22.2006 12:02am
Defending the Indefensible:
Neal Lang:

Sticking with your terminology here, I understand your distinction between the moral rights of individuals and the authority of the state. I think a more consistent way of expressing this idea is that one has rights that do not depend upon any authority, for which one needs no permission from anyone. But I may grant authority to you to do what would be morally rightful for me to do or delegate, this is not a natural right but it is a rightful authority, because it is morally justified. But not all exercise of power is rightful authority, because if you do what you have neither an independent moral right to do something, nor have been delegated someone else's moral right to do it, you are doing something wrong, and wrongs can never be rights. Are we on the same page so far?

Now, I asked the question, absent a probable cause that I am doing something wrong, do you (or the state) have a moral right to OBSERVE the interior of my home, and therefore to watch me make love with my wife?

You gave a long response that went far afield. The premise of my question that I'm just making love with my wife, and you agree that this is both "legal" and "moral". You (and/or the state) don't have probable cause to believe that we are doing anything wrong. We're not on a street corner, we're in our bedroom. My wife is not my blood relative, and she is not a minor, and neither of us are abusing the other, and I'm just trying to get a straight answer to a simple question.

Assuming all of the above, and that we have not granted anyone permission to watch us, does anyone have the moral right to do so, does the state have the moral authority, and furthermore, does anyone have the "civil right" or "civil authority" to do so?
1.22.2006 12:09am
Defending the Indefensible:
Neal Lang:

Just to close a possible loophole in my question, presume that our windowshades are drawn, and that my wife and I have a reasonable expectation of privacy.
1.22.2006 12:22am
Neal Lang (mail):
Then I hope you learn something soon, because if you don't then your desire will not be fulfilled.

So do I. I keep trying.
I was not saying that I was older or younger than you, I was explaining that I suffered from the same misunderstandings that you suffer from now when I was younger.

I don't believe I stated you were older or younger, merely that I was an "old fart".
The issue is that you are not fully reading things. Furthermore, you are single-minded with such a narrow focus that you cannot view something outside the prism of this tiny world in which you exist. You consistently misread the intents of documents to suit your purposes. You consistently focus on the words in some text that will support your viewpoint to the exclusion of all other words, which demonstrate you are wrong. This is pretty unique, I hope. I have never met someone who can so easily read something that rejects their bias as something that supports their point.

My basis of understanding on rights is informed by the thoughts of our Founding Fathers - kindly point out where I have misread their specific words on the subject.

I believe that perhaps it is you who are describing your own short-comings, rather than mine, and then projecting such to me. For instance in an earlier post you referred to Locke. Based on your professed concept of "endowed rights", you obviously missed a large part of what Locke was selling!
In the definition you cite you do not read all the definitions that reject your understanding, just the denotations that you think are supporting your beliefs. For example, you miss:

"2: something to which one has a just claim: as

"a: a power, privilege, or condition of existence to which one has a natural claim of enjoyment or possession
Example: the right of liberty
Example: that all men . . . are endowed by their Creator with certain unalienable rights — Declaration of Independence (see also natural right)

"b: a power, privilege, immunity, or capacity the enjoyment of which is secured to a person by law
Example: one's constitutional rights"

As you can see, if you read these words that Findlaw (or the Merriam-Webster Dictionary of Law, still a law dictionary and not a normal dictionary) gives, you'll also notice that it shows that the above definitions are the definitions of a natural and constitutional right. Furthermore, as a student of English for 37 years, you will know that words have different meanings for different contexts. The word "right," as in a "moral right" and the "right thing," is different than "a right." This is not the only example of your misreading documents, but it is the most blatant and thus I hope the most easy for you to recognize and understand.

Unfortunately if you are attempt to establish the meaning of "rights" and "Natural Law" as they were understood by the Founders, who drafted and signed (putting their lives and fortunes on the line) the Declaration of Independence, the true founding document of our Nation, and the Framers, who drafted and promoted the ratification of our Constitution, thes definitions are worse than inadequate = they are misleading and simply plain wrong. I am sorry to burst your bubble, but there it is.

A "natural right" is not a "power", instead it is a "duty" and "responsibility" that MUST be exercised "morally". It is not a "privilege", as it extends to all men equally, however, it is a "condition of existence". As such, your "rights" and my "rights", and your "unborn baby's rights" exist simultaneously in the same universe, and can never interfer with one another. A "privilege" cannot be "unalienable". You can never exercise a "right" to the extent that it alienates someone else's "unalienable rights", such an unborn baby's "right to life". In fact, our "rights" are both "unalienable" and "ordered" - so a woman's "right of privacy to choose", perhaps derived from the "unalienable right of liberty" can never have precedence over to another's "right to life". The lack of life, and liberty and property are quite meaningless. If you truly read and understood Locke, you would know this, as a "Self-evident Truth".

As for YOUR definition's explanation of "one's constitutional rights" - it leaves much to be desired, as well. Certain Constitutional Rights are granted by the State through "Positive Law", these include "civil rights", like voting rights, and "Common Law" rights, generally defining you rights and standing in court (criminal and civil). None of these, being granted by the State are "unalienable" and may be alienated by the State. Other Constitutional Rights, such as the "right to keep and bear arms", are necessary to your Creator endowed "rights", such as life and property, and may considered to be also "unalienable", as their alienation by the State or anyone else effects these "unalienable rights".

The definition provided by the Findlaw "law dictionary", while perhaps currently the latest "jurisprudently correct" (or politically correct, as the case may be) thinking, are incorrect historically, based on the philosophy and theology of our Founders.

BTW, I am s stickler (some might call me anal) when it comes the precision of the understanding and mutually accepted agreement as to meaning of words - else we cannot get anywhere in our dialogues. When you tell me your source is Black's Law Dictionary (a well recognized standard) it should be just that. In any event, I am afraid that your source for a definition of rights, is, IMMHO, totally inadequate and wrong. Particularly as we are attempting to reach concensus as to the meaning of "rights" as understood by the Founding Fathers, and the Framers of our Constitution. Frankly, what the Supremes tell me my God-given rights mean does not impress me at all, and your chosen source seems to follow their misunderstanding.

Frankly, when you are descrbing "Self-evident Truths", neither the time, nor the context changes the meaning of words. Truth is unchangeable and incorruptible. That has been our problem, as "well regulated" to our Founders meant a militia that could shoot straight and recharge their "firelocks" in quick and orderly fashion. It did not mean that the State had the "power" to infringe upon "the People's right to keep and bear arms", when such is "morally" exercised by "the People". Those are the facts - it is the "Self-evident Truth". Any other meaning or definition is quite simply wrong.

Hmmm! You have 37 year as a student of English - you would think by now you should be beginning to understand it. I minored in English and dabbled in Journalism in College. I was even President of the Indiana Collegiate Press Association some 40 years ago. My how time flies when you are havng fun! Majored in logistics, with accounting and law minors. I drove my Constituional Law professor nuts, BTW - and he made J. Egar Hoover's Masters of Deceit required reading for his classes. Imagine that.
I enjoy debating people of your viewpoint. There are many authorities and experts who promote some the ideas that you promote. And I love to see, if my understanding of an issue is able to "hold water" to these eminent people's presentation of an issue.

It's mutual! Well when you take the position of the "Self-evident Truth", it pretty hard to argue with your position, however, I am hardly "eminent". In fact, I think that most folks who consider themself such, aren't. Like asses, everyone is entitled to their opinion. I even fight for your right tobe wrong.
I think that volokh watcher is correct that your "theory of constitutional construction" is not supported, but many of the opinions that you have stated have been promoted by many intelligent people of great weight and authority. It is the disdain that you express toward your opponents in policy and interpretation of the law. It is the contempt that you express toward those who disagree with you that has provoked this response to you and I believe others' comments toward you.

Since today's "theory of constitutional construction" is what the Supremes say it is, I don't that I disagre with it. After all, the Supreme "usurped" the "authority" to tell "the People" just what "the People's" Constitution really means. In that I am supported by none other than Publius. Too bad Hamilton didn't survive the Jefferson Administration. He was a true gentleman and a real statesmen. Had he not been killed, I believe he may prevented the Supreme Court's "silent coup". As for disdain, I guess like Lt. Gen. Russel Honore, I have a problem when folks "get stuck on stupid"! I try to be kinder, but it is truly hard. Again, the result of my believe in the "Self-evident Truth", perhaps. I suppose that compared to Aaron Burr, I am really a "pussy cat"!
You do not seem to understand that we all grew up in somewhat different cultures, but we are all Americans. We have studied and learned; we have molded and refined our ideas; everyone here has done each of these things. And I do not think I am going too far to state that all people on this blog love our country. We love the system that those great men created 220 years ago. We love the law and the greatest system so far imagined by man which is doing its best to protect G-d's greatest gift to His children: our "life, liberty and pursuit of happiness."

All that is wonderful, and I celebrate your magnaimous optimism. However, there are people that do not wish our country well, and many here can't figure who side they are on. That is really too bad, because if we had continued to present a united front, as we did immediate post 9/11 this thing might be close to being won by now. The asymmetrical war we are fighting require a nearly unanimous backing of "the People" is more important to victory than smart bombs "electronic wizardry". I am afraid the Democrats have put partisan politics ahead of National Security - it isn't the first. In fact, Aaron Burr is a historical example of this sort of politics. It is a shame, really, as it will cost lives and suffering. I, too, love this country, however, if we do not return our political, phisophical, and moral roots, we are, as all our Founders observed - doomed to follow the Roman Empire onto the "dustbin of history". As for different origins - well that is what is so remarkable about "Self-evident Truths" - the don't change because of culture or education. The are simply the Truth. This is why we lasted as long as we have. An also way, in the words of Neil Diamond: "From all around the World, they are coming to America!"
Our effort to learn and grow, of course, is not complete and we all should be happy to hear new ideas and weigh them with what we have learned throughout our lives. Yet you seem to be unable to do this. You are rigid and bullheaded in your beliefs even when it is demonstrated that your reading or understanding of an issue is wrong.

Again, when you base you concepts, as did the Founders on "Self-evident Truth", compromise is not possible, accept perhaps at the margins. I enjoy hearing all ideas, however, what I believe is ageless. Again, the "Self-evident Truth" does not change, no matter what MR. JUSTICE BLACKMUN might think. Denying the "Self-evident Truth" has consequences - you might ask the 40+ million dead babies that adorn the altar of the "right to choose death" if you could, and I am sure tell you the real meaning of "rights" and "Truth". I am sorry, but I cannot - will not, compromise the Truth.
If you go back through this blog, you will notice that I and many others have made mea culpas for facts that we presented that were demonstrated to be wrong. You have never done this, not once. When someone demonstrates that you have misstated a fact or that you have misquoted something or that you have misread something, you have not admitted nor even addressed it.

Unfortunately, you seem to see those that agree with you as being right. That is your fault, not mine. Frankly, I am not aware of any misstatemen of fact, nor have misread any source. Just because you want me to be wrong does not make it so. That is the funny thing about the "Truth" - sometimes it hurts and is hard to accept.
Instead, you move to some tangential point and try to attack their argument from some flank you think is exposed, but the flank is refused and well-defended.

Wanting something to be so does not necessarily make it so. Again, like asses everyone is entitled to their opinion. Unfortunately in the immeiate case you happen to be incorrect.
Amitting to an incorrect understanding of something is not the sole means to demonstrate that you are not rigid or bullheaded. Accepting something put forth by your opponents' is also another means of showing that you wish debate someone honestly. I have never seen you do this. Not once.

"Oh Lord how it is hard to be humble, when you are perfect in everyway!" Just kidding! In fact I admit I am far from being perfect - before the computer, I probably used more eraser the most. However, in this case your are wrong, as your position denies the "Self-evident Truth". Apparently "You can't handle the truth!" This is comman, but I sure you can beat if you simply work on. I good place to start is read Locke with an open mind - then do not acception what the Supremes opine as "Gospel". In today's academic World - a "jurist's eminence" increases geometrically with how far"off the wall" his opinions are. If only the law was about finding the "Truth", instead of one person idea of justice.
I have been blogging on this website for only a couple of weeks and yet I have seen so many, even the owner of this website, do what you appear unwilling to do. Why? Where do you come from that you feel you are always correct and always good? I have felt G-d and I know He is always close, but I have never seen or heard Him. You act as if He speaks in your ear constantly. Please do not read what I write as an admonition, but as a person attempting to reach another. I am trying to see if you are collection of stubborn positions or a person who is willing to grow. Can you see this?

Again, the "Self-evident Truth" is uncompromisable. I get my take on this from the plain language of the Declaration of Independence. There are no penumbras - just the plain truth. Again, I am sorry if "you (and others) can't handle the truth!" Don't take my word for it - read the Declaration of Independence and then read the Roe decision. If when you finish that exercise, you don't see this "Self-evident Truth" of which I speak than "you simply can't handle the truth!" BTW, if you listen, you may even hear God's words in Jefferson's efforts. Folks look at our Constitution (a great but terribly distorted document) and make a case for a God-less secular State based on the fact God does not appear anywhere in that document save the "signature", to wit:
done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

However, this was merely the instrument by which the Framers "instituted the government" that they believed would "secure their God-giving rights"! This is the far more important document, as it is based entirely on a loving God and His "Self-evident Truth". The foundation of our rights is not our Constitution - which is merely blueprint for a unique Republican form of government. This is the reason the Framers left out a "Bill of Rights", and merely added same as an "after-thought" in order reach unanimous acceptance the charter by all the State. The primary author of the Constitution and the Bill of Rights, believed that it was wrong to delineate these rights in the Constitution until the day he died. Based on his reasoning and subsequent events (such as using the phrase "well regulated militia" to change "the right of the people" into "the power of the State") I believe he was right.

Unfortunately, our downfall is divorcing "morality" from our government - a scheme of the Leftist Elitists beginning in the mid-19th Century in concert with the "Enlightenment". My rights and your rights can not exist outside morality, and this shall be our epitaph. Our only possible salvation will be our ability to first see, then understand, and finally accept - the "truths" which are "held to be Self-evident".
1.22.2006 1:27am
Neal Lang (mail):
Just to close a possible loophole in my question, presume that our windowshades are drawn, and that my wife and I have a reasonable expectation of privacy.

I really don't not believe this alters anything. I assumed your "windowshades are drawn", else - if your "circular bed with its mirrored ceiling" had a ceiling to floor, wall=to=wall plateglass window that faced a busy street with open curtain - one could hardly "have a reasonable expectation of privacy". In fact, depending on your locale, you could be convicted of "public indecency" or possibly be Tortiously liable for any injuries incurred by passing motorists or bicyclists who attribute their accidents to the distraction caused by you and your better half.
1.22.2006 1:41am
Neal Lang (mail):
In 215+ years of this Republic, no Congress, no Executive, no Supreme Court, nor the people, nor the history/poli-sci/civics textbooks have adopted the theory of constitutional construction you've offered in this string. This country would look awfully like the a rudderless ship if any of those groups had. But they didnt't and haven't -- yet. Why would that be?

I suppose the Framer Alexander Hamilton got it wrong then in Fderalist 81. Well what did he know? He merely help write the damn thing and sell to the people of New York! Talk about a "hard sell"!
1.22.2006 1:45am
George W. Bush:
Neal:

You have not clarified your answer to my question. If my wife and I have a moral right to make love in the privacy of our bedroom, and having drawn the blinds and otherwise have a reasonable expectation of privacy, do you have a moral right to surreptitiously watch us do so? Again, given lack of probable cause of any wrongfulness on our part, does the state have rightful authority to watch us?

Do you deny that in this circumstance, denying our privacy is immoral, wrongful and unrightful?

Textual appeals to the Fourth Amendment are quite beside the point, because this privacy interest is not derived from any grant. Bills of Rights do not create rights. Rights, as you have defined them, do not come from the state.

And yet, privacy, however limited in scope, is such a right.
1.22.2006 2:49am
Neal Lang (mail):
Sticking with your terminology here, I understand your distinction between the moral rights of individuals and the authority of the state. I think a more consistent way of expressing this idea is that one has rights that do not depend upon any authority, for which one needs no permission from anyone. But I may grant authority to you to do what would be morally rightful for me to do or delegate, this is not a natural right but it is a rightful authority, because it is morally justified. But not all exercise of power is rightful authority, because if you do what you have neither an independent moral right to do something, nor have been delegated someone else's moral right to do it, you are doing something wrong, and wrongs can never be rights. Are we on the same page so far?

Pretty close. Just understand that the State's "Authority" has its source from the "sovereignty" delegated to it by "the People". Per Locke, in the "Natural State" (a.k.a. a "State of Nature") we all, individually retain our own "sovereignty" and the State does not exist. When man decides to "institute a government" (the State) to "secure his rights" from "brigands and beasties", and even his fellows - he reliquishes some of his "sovereignty" to the State, typical to provide "collective security" and to negotiate with the "brigands", etc. The "right" of "exacting retribution" for wrongs typically passes from the individual to the State. Depending on the complexity, the grant of personal "sovereignty" may be large or small. The "sovereignty" equates to the "authority" and "power" given to the State. Obviously man must have this "sovereignty" before delegating it. And the State must always "morally" exercise its "sovereignty" in the form of "authority" and "power". Leaving the "State of Nature" to "institute a government" does not affect man's "Creator endowed, unalienable rights" - as the government is formed SOLELY "to secure these rights". The government owes its existence to man's need to "secure these rights", and must function solely to that end. Should the government fail to secure these rights, typically becoming a threat to man's rights by immorally exercising its delegated "authority" and "power" (power corrupts) man retains and reserves his right to "change or abolish" his government, and institute another that is more conducive to the "security of man's rights". This was exactly the theory and philosophy that the United States of America was founded upon, and the Constitution was instituted. In the case of the Constitution, however, "We, the People", were not living in the "State of Nature", the 13 Colonies having already declared and won their independence from England, and "the People" having delegated some of their "sovereignty" to their newly independent States. The Constitution involved a delegation of "sovereignty" from both the 13 States and "We, the People". Interestingly, I do not believe that States could have delegated a part of their "sovereignty" which had been delegated to them by "We, the People". "Sovereignty" differs, IMMHO, from "Authority" in this respect.
Now, I asked the question, absent a probable cause that I am doing something wrong, do you (or the state) have a moral right to OBSERVE the interior of my home, and therefore to watch me make love with my wife?

I have neither the "right" nor the "authority" to do anything on your property (with the possible exception of lending assistence to someone there that might be in distress) without your or your wife's express invitation and permission. This understanding is part of your "property right". As for the State, it has no "rights" at all, IMMHO, and only the "authority" and "power" granted it by "the People". Does the State have the "authority" to OBSERVE your making love with your wife? It depends on what "authority" you and your neighbors have allowed the State through you elected/appointe representative, although I cannot see anyone delegating such "authority" (unless they were simply kinky).

In parts of New England, all the eligible people get together and decide. In New York City, you elect a commissioner or councilman to represent you - who, along with other representatives of the people put together the "Positive Law" that you and your neighbors, through your particition in the process, have agreed to accept.
You gave a long response that went far afield. The premise of my question that I'm just making love with my wife, and you agree that this is both "legal" and "moral". You (and/or the state) don't have probable cause to believe that we are doing anything wrong. We're not on a street corner, we're in our bedroom. My wife is not my blood relative, and she is not a minor, and neither of us are abusing the other, and I'm just trying to get a straight answer to a simple question.

Sorry, but I suppose that is just the way I am. I look to be complete and hopefully cover all the bases. Ask your simple question - which I thought had already answered.
Assuming all of the above, and that we have not granted anyone permission to watch us, does anyone have the moral right to do so, does the state have the moral authority, and furthermore, does anyone have the "civil right" or "civil authority" to do so?

As I said, my "moral rights" end at your (or my) property line. I cannot "invade your castle" (accept for specific and moral situations) without your specific permission. A "Peeking Tom", whether your neighbor or a uniformed cop, commits a violation of the law most everywhere. There is no "moral right" or "moral authority" to practice voyeurism. In fact, it is a crime, even for a cop to practice it. The only question (and a pretty hard one for me to decide) is whether you call the cops and have the pervert arrested, or do you simply "punch his lights out". I sort of lean towards "punching his lights out", although I realize that such a solution is only proper in a "State of Nature". "Civilize folks" are suppose call the magistrate, and let them handle it - that is why we all left the "State of Nature" and instituted a government. Not as satisfying, but "politically" and "morally" correct.
1.22.2006 2:56am
Defending the Indefensible:
Neal Lang:
I cannot "invade your castle" (accept for specific and moral situations) without your specific permission. A "Peeking Tom", whether your neighbor or a uniformed cop, commits a violation of the law most everywhere. There is no "moral right" or "moral authority" to practice voyeurism. In fact, it is a crime, even for a cop to practice it.
Agreeing then, that it is a crime to violate privacy in at least some circumstances, can you step away from the impertinent abortion issue, and recognize that this privacy interest is properly reflected in the Constitution and laws made pursuant to the provisions thereof?
1.22.2006 3:42am
John Lederer (mail):
"As an aside, are you sure either of those actions (going supersonic and potentially firing on a civilian flight) were illegal? I ask because most laws have some sort of emergency provision."

Short answer: no. My example was more illustrative than precise.

Almost all the FAR's provide authority for the FAA administrator to waive them. The prohibition on supersonic flight per se, is for civil aircraft, but there are general regulations on aircraft speed by altitude and area that likely were violated on 9/11 (there is a general exclusion for designated "Restricted Areas" which is where the miltary normally and legally can go supersonic).

FAA controllers do have a variety of laid out emergency plans, approved by the Administrator,for lots of things from earthquakes and power failures to nuclear war, and there might well be something that would apply.

I have not touched the FARs for twenty years, so I am not a good source on current law. I will note as a lawyer that there is substantial truth in the pilots' lament that "you are always in violation of the FARs"
1.22.2006 10:09am
Medis:
John L,

My point, of course, is that the law is generally not so inflexible that it cannot accomodate the need to bypass procedures when unexpected emergencies arise. And in any event, starting with the USA-PATRIOT Act as the very latest date, the Administration could no longer claim that Congress had not had the opportunity to reevaluate FISA in light of 9/11.
1.22.2006 10:41am
srg (mail):
Jack John,

The obvious problem with your argument is that the President could use the same argument - that the AUMF supersedes FISA, since they are mutually contradictory, according to your logic -- to claim the right to kill or torture anyone he wants by saying that he cannot fulfill the AUMF without being able to kill or torture at will. Who determines when a previous law makes it impoossible for him to fulfill the AUMF? What are the legal grounds for making this determination?
1.22.2006 11:01am
Neal Lang (mail):
Agreeing then, that it is a crime to violate privacy in at least some circumstances, can you step away from the impertinent abortion issue, and recognize that this privacy interest is properly reflected in the Constitution and laws made pursuant to the provisions thereof?

Actually, I think the murder of some 40 innocent unborn to be pretty "impetinent". Quite frankly, your "privacy" concerns regarding some "peeping Tom" pervert ogling (clandestinely or otherwise) your manly prowess with your wife in bed not withstanding, pails in comparison. Of course, your nexus to the NSA Surveillance program (the purpose of the immediate thread) and some governmental "field operative" - "sneaking and peeking" in your bedroom window, is somewhat strained, IMMHO. In fact, I believe your attempt at an over-stretched "moral equivalency" is rather transparent. That said:

As I said, I, myself, would object (vigorously) to anyone (writ in hand or no) invading my marital intimacy. However, if in order to end the genocide of abortion I must suffer that sort of indignity, well, I suppose I am prepared to do just that.

Apparently you do not understand the genesis of Roe and the "slaughter of innocents" that so riles my ire. Interestingly, there is a "bright line" connection between the "privacy" of "nuptial bliss" and the "general right of privacy", including the woman's privacy "right to choose to murder her unborn child", and the "opined" "privacy right of a enemy agent terrorist in the US to plot murder and mayhem with his control in the Hindu Kush free from the 'prying ears' of the NSA" - all you need do is look for it.

I suggest that you read the Griswold decision in order to see "how you get there from here". (At: GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)
2. The Connecticut statute forbidding use of contraceptives violates the right of "marital privacy" which is within the "penumbra" of specific guarantees of the Bill of Rights. Pp. 481-486.

I am not exactly sure how the State of Connecticut's regulation of devices in drug stores (and bar and truckstop bathrooms) reaches a level where the Feds may violate their Constitutional limitations - which apparently applies only to Congress, as the Federal courts seem to have usurped an unlimited reign to regulate in all things legislative. Of course, Griswold (an ACLU "setup" case) had the perfect "strawman" for the Feds to knockdown. (See Lawrence for another example. - I am beginning to think that "Sex makes for bad law", at least to the extent that the Supremes decide to get involve.) Connecticut's "condum ban law" had not been enforced for sometime, so a vigorous defense of it was not expected. Of course, by getting the Supremes to "cipher" a brand new "penumbra" formed around a "general right of privacy" (again a term the Framers did think to use in the Constitution). What other "cryptic rights" attached to this "penumbra" might conjured up in future "test cases"?

Along comes Roe in 1973. (See: ROE v. WADE, 410 U.S. 113 [1973]) This time the Supremes take on State regulation of medical practice, which had always been on the prerogatives of the State government in of Federal system. (As an asides: the Supremes recently saw that while Texas (or any other State) regulation of abortion was subject to a "veto" by the Supremes - the Executive, through the Attorney General using "authority" extended him in an Act passed by Congress, could not regulate how Oregon allows its physicians to assist their patients to kill themselves. Obviously, the Federal Judiciary is the most powerful Branch of Government in the US - if not the World. Funny how the Framers didn't know this when they wrote and sold the Constitution.) Ooops, not after the discovery of the "penumbra" in Griswold. Now anything that might possibly be described as being "privacy related", especially having to do with SEX was fair game for the Super Legislature, the Supremes had now become.

Keeping with the "sexual" theme that you initated with your "bedroom" query - I believe the "judicial theory" the Supremes are now using, at least in the area of "unlimited privacy rights" might be accurately described as "incestuous method" of legal precedent development. In this case, the Supremes are the "sperm donor", who fathered the "penumbra" of "general privacy rights" in the "mother case" , Griswold. In order to birth another of "penumbra" - the "woman's general privacy right to choose to murder her unborn child" - the Supremes, in Roe "incestuously" used the "new law", that they "fathered" in Griswold. In addition to the "father - daughter relationship" that was Roe/Griswold, the Supremes also let other "privacy related" uncles, aunts and cousins contribute to the expanding "penumbra", citing Katz and dissenting opinion in Olmstead. In the end, all these cases lent some "DNA" to the "incestuously conceived child" which was the "penumbra" privacy "right" that "kicked-off" the "abortion genocide".

Please forgave my angst with this entire subject. However, unlike some, I truly believe that the unalienable "right to life" trumps the "penumbra" - "privacy right", and not the other way 'round. Frankly, this entire NSA Surveillance kerfuffle, as it is being related to the "understood" privacy aspect of the 4th Amendment, is exactly the balancing act (although perhaps not the scale) as that of the "abortion vs. privacy" controversy.

Again, I come down on the side of the primacy of the "right to life" over the a "penumbra" generated "general right of privacy". On the "moral scales" -"life out-weighs privacy", and if your believe, as I do, that the prime and only reason that man comes out of the "State of Nature" and "institutes a government" is to "secure these these", then the "right to life" must always come first, as the "rights of liberty and the Pursuit of happiness (property)" quite meningless to a dead person!

As I stated, I don't deny the existence and importance of a "privacy right", I merely object to raising it to a level where it threatens lives (especially those of myself and family). Even agreeing that the "right of privacy" is a Constitutional right (despite it not appearing anywhere in the text of that document), I believe the Constitution is not a "suicide pact". To the extent that this "constitutional right of privacy" is recognized, in some situations (abortion, for one, and "operational combat intelligence" gathering on murdering terrorists, for another) it must be subordinated to the "right to life". Theoretically and philosophically, I value my "right of privacy" very highly. Practically, however, I must value my and others' "right to life", much higher. I totally believe in a "Culture of Life". Unfortunately, "Privacy", as applied by the Supremes in Roe, is the worst example possible of a "Culture of Death".
1.22.2006 3:50pm
Defending the Indefensible:
If you don't know what a word means, please look it up.

Impertinent \Im*per"ti*nent\, a. [F., fr. L. impertinens,
-entis; pref. im- not + pertinens. See {Pertinent}.]
1. Not pertinent; not pertaining to the matter in hand;
having no bearing on the subject; not to the point;
irrelevant; inapplicable.
[1913 Webster]
1.22.2006 4:11pm
Neal Lang (mail):
I did:
im·per·ti·nent adj. 1. Exceeding the limits of propriety or good manners; improperly forward or bold: impertinent of a child to lecture a grownup.
1.22.2006 10:18pm
Neal Lang (mail):
From: The American Heritage® Dictionary of the English Language, Fourth Edition
Copyright © 2000 by Houghton Mifflin Company.
Published by Houghton Mifflin Company. All rights reserved.

Apparently yours is dated!
1.22.2006 10:21pm
Some Guy:
I think the real question is simply, is surveillance of a communication between a U.S. person and a foreign person foreign surveillance or domestic surveillance? Note that the administration is trying to take the rhetorical high ground on this question; that should be a big clue that they know how important the question is.

Consider a communication such as the one I've described. Now imagine two cases: one where the executive (without a warrant) has sought out the foreign person for surveillance, and one where the executive has sought out the domestic person for surveillance. The latter I think is constitutional; the former, however, is probably not. Even with today's technology, I think that clear lines can be drawn between the two situations.
1.26.2006 3:08pm
Neal Lang (mail):
Consider a communication such as the one I've described. Now imagine two cases: one where the executive (without a warrant) has sought out the foreign person for surveillance, and one where the executive has sought out the domestic person for surveillance. The latter I think is constitutional; the former, however, is probably not. Even with today's technology, I think that clear lines can be drawn between the two situations.

Apparently surveilling foreigners outside the States is always constitutional - no warrant required. Surveilling domestically always requires a warrant. The real question is simply: when was the 4th Amendment amended to add "surveillance" to "search and seizure" as police/military functions requiring a "probable cause warrant"?
1.26.2006 6:51pm
Some Guy:
My guess would be: whenever the telegraph was invented :) but I can't cite precedent to demonstrate that, so...

But your argument would seem to run the other way as well--if surveillance isn't a police/military function, how could the Chief Executive posess it as a constitutional power?
1.27.2006 12:49am
Neal Lang (mail):
My guess would be: whenever the telegraph was invented :) but I can't cite precedent to demonstrate that, so...

I suggest you check Olmstead v. US, a 1928 case, that the 4th and 5th Amendments didn't apply to telephone calls, to wit:
The amendment itself shows that the search is to be of material things-the person, the house, his papers, or his effects. The description of the warrant necessary to make the proceeding lawful is that it must specify the place to be searched and the person or things to be seized.

It is urged that the language of Mr. Justice Field in Ex parte Jackson, already quoted, offers an analogy to the interpretation of the Fourth Amendment in respect of wire tapping. But the analogy fails. The Fourth Amendment may have proper application to a sealed letter in the mail, because of the constitutional provision for the Postoffice Department and the relations between the government and those who pay to secure protection of their sealed letters. See Revised Statutes, 3978 to 3988, whereby Congress monopolizes the carriage of letters and excludes from that business everyone else, and section 3929 (39 USCA 259), which forbids any postmaster or other person to open any letter not addressed to himself. It is plainly within the words of the amendment to say that the unlawful rifling by a government agent of a sealed letter is a search and seizure of the sender's papers of effects. The letter is a paper, an effect, and in the custody of a government that forbids carriage, except under its protection.

The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants. [277 U.S. 438, 465] By the invention of the telephone 50 years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place.

The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office, any more than are the highways along which they are stretched. From: OLMSTEAD v. U.S., 277 U.S. 438 (1928)

It until the Warren Court in the 60s that the Supremes discovered a "right of privacy" to make telephone calls in the Constitution.
But your argument would seem to run the other way as well--if surveillance isn't a police/military function, how could the Chief Executive posess it as a constitutional power?

To the extent that the Executive Branch (i.e. the President) is charges with the "responsibility" to "execute" the laws of the Nation and to "preserve, protect and defend the Constitution of the United States, to wit:
Article. II. [Section 1.] The executive Power shall be vested in a President of the United States of America.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: -- "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

[Section 2.] 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;


These "responsibilities" assumes the "authority" to perform both police and military functions which include "surveillance".
1.30.2006 10:43am