Bush, the NSA, and our Police State
Saturday, December 17, 2005
"This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States," ~President Bush, defending a post-Sept. 11 secret eavesdropping program in the U.S. by the National Security Agency without obtaining warrants from a court.
Do you see the flaw in his words and with his logic? The portion of Mr. Bush's brain that formulates sentences understands the scope in which Mr. Bush, as President, is suppose to operate. The rest of his brain, unfortunately, is out to lunch. What "power" does Mr. Bush have? What "law" does he operate under? What part of the Constitution does he refer to? And what does he mean by, "...protect them and their civil liberties"? Let us look, keeping to the subject of surveillance.
His Power
50USC36§1811 Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
The authority that empowers the president to surveil persons turns on a declaration of war by the Congress. No declaration of war, no authority. To the best of my knowledge, Congress has yet to declare war on anything.
The Law
50USC36§1802(a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.
Put simply, the President cannot order surveillance of a United States person without a court order.
Our Constitution
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 person or things to be seized.
This Amendment is a broadly-worded restriction on government to not infringe on individuals' rights to privacy, liberty, and property. It provides an outline to our government in acceptable methods of investigating individuals. In it's most basic sense, the government can never surveil citizens without first getting a court order.
His Duty
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish the Constitution for the United States of America.
As a representative of the United States Government, he has sworn an oath to uphold and defend the Constitution. The Constitution created our government to protect the rights and liberties of the people. For the President to authorize the illegal spying on American citizens is contradictory to the function and purpose of our government.
The American Expectation
What do we expect from our President and the rest of our government? We expect our government to do its job to the very best of its ability. The American people expect that, while doing its job, the government will not violate the rights of the people. To do so would be counterintuitive to the purpose of government. Our Declaration of Independence best articulates this concept: "[T]o secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."
posted by Don Bangert | 3:17 PM
3 Comments:
The Constitution requires that an elected President take the following oath: "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."
The problem is that, although the Constitution requires a President to preserve, protect and defend it, nowhere does it require him to obey it.
We also should limit a President to one term; make every one a lame duck.
If you haven't seen it, I would refer you to the press breifing by Att. Gen. Gonzales.
http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html
Here he basically agrees with you by stipulating that a court order is necessary unless "otherwise authorized by statute or by Congress." A declaration of war would be an example of that. He then contends basically that part is satisfied by the Authorization to Use Force given to the President after September 11th, by Congress.
As far as including a US citizen, I guess they are playing the enemy combatant card. Gonzales refers in the briefing to Justice O'Connor's plurality opinion in Hamdi vs. Rumsfeld. http://teaching.law.cornell.edu/faculty/drwcasebook/updates14.htm
"The AUMF [Congress's Authorization for the Use of Military Force] authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. "
"We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use."
From that, the Bush administration gathers that a member associated with Alqaeda or terror group associated can be labeled an enemy combatant and may be detained or be an object of surveillance. The administration holds that surveillance is even more an "incident to war" than detention. That's how they try to justify it.
I would agree that their logic is consistant enough there. However, I contend that 50USC36§1811 by not requiring a court order before or retroactively to the 72 hr. limit is Unconstitutional. In an unconstitutional manner, judicial oversight is removed and power is shifted from the Judicial Branch to the Legislative Branch. The President has authorized the use of this Unconstitutional legislation. Congress can not just legislate the Court or our Bill of Rights into obliveon. Likewise, the courts should not legislate from the bench. Hopefully, this abomination to our liberty will soon come to a deserved demise.
By the way, I really like your blog and have linked to it.
Britt, thanks for the comment... and compliment. I'm getting a post together for this morning that hopefully will crack the shell of electronic surveillance and also shed some light on the roll each actor plays on this stage.
Stay tuned...
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