America... Spying on Americans

parados wrote:

Ticomaya wrote:
FreeDuck wrote:
mysteryman wrote:
cicerone imposter wrote:
The president has no authority to supercede laws established by congress.

So,does this mean that Lincoln had no legal authority to issues the emancipation proclamation?
After all,slavery was legal,according to congress.

What federal law did the emancipation proclamation violate?

It was a military order issued by Lincoln in his capacity as the Commander in Chief, which arguably offends Debra Law's Youngstown decision (although it had obviously not been decided back then).
Tico there was no Federal law about slavery to violate. Several states had already outlawed it so how could he have violated a federal law making slavery legal?

I didn't say he violated a federal law.

Do you think the Constitution empowered Lincoln to issue the Emancipation Proclamation?

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Ticomaya wrote:

FreeDuck wrote:
mysteryman wrote:
cicerone imposter wrote:
The president has no authority to supercede laws established by congress.

So,does this mean that Lincoln had no legal authority to issues the emancipation proclamation?
After all,slavery was legal,according to congress.

What federal law did the emancipation proclamation violate?

It was a military order issued by Lincoln in his capacity as the Commander in Chief, which arguably offends Debra Law's Youngstown decision (although it had obviously not been decided back then).

Technicaly,he had no authority to issue such an order,since the south was at that time a seperate country,with its own laws.
But,the fugitive slave clause (Article IV, Section 2),required fugitive slaves to be returned to their owners.
Now,by issueing the emancipation proclamation,Lincoln violated that clause.

This clause explains that no person held in service (which implied slavery) or labor in one state, and under that state's laws, can escape into another state and be relieved of his services. Even if a slave escapes to a free state with laws prohibiting slavery, he still must be returned to his rightful owner to whom he owes his services in the slave state. He is still a slave no matter where he is, as long as he belongs to his master. This point would later be discussed in the opinion of the Supreme Court in the Dred Scott decision. This clause "became the basis for the more notorious kind of federal intervention in behalf of the institution." It provided for the enforcement of returning slaves anywhere in the Union to their rightful master.

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mm et al seems to think immoral, Jim Crow laws are okay, and defends slavery over the moral imperatives. We all know where these racial bigots now stand, and they're the "Americans" of today.

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cicerone imposter wrote:

mm et al seems to think immoral, Jim Crow laws are okay, and defends slavery over the moral imperatives. We all know where these racial bigots now stand, and they're the "Americans" of today.

Huh? What are you reading?

Perhaps a better question is, what are you smoking?

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cicerone imposter wrote:

mm et al seems to think immoral, Jim Crow laws are okay, and defends slavery over the moral imperatives. We all know where these racial bigots now stand, and they're the "Americans" of today.

No,I dont think that,and you are sadly mistaken if you think I do.

I was responding to this post by CI..."The president has no authority to supercede laws established by congress."

I was showing one example where a president not only superceded congress,but the constitution itself.

There ARE times when a president can do that,and it is justified and legal.

But,if you are claiming that the President CANT do that,then I gave you an example of another President superceding congress,and I was wondering if you think that action was wrong also?

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mm, We are talking about a 'specific' law under FISA established by congress on wiretaps of American Citizens; FYI that was only two decades ago - not over 100 years ago. Comprende?

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Ticomaya wrote:

parados wrote:
Ticomaya wrote:
FreeDuck wrote:
mysteryman wrote:
cicerone imposter wrote:
The president has no authority to supercede laws established by congress.

So,does this mean that Lincoln had no legal authority to issues the emancipation proclamation?
After all,slavery was legal,according to congress.

What federal law did the emancipation proclamation violate?

It was a military order issued by Lincoln in his capacity as the Commander in Chief, which arguably offends Debra Law's Youngstown decision (although it had obviously not been decided back then).
Tico there was no Federal law about slavery to violate. Several states had already outlawed it so how could he have violated a federal law making slavery legal?

I didn't say he violated a federal law.

Do you think the Constitution empowered Lincoln to issue the Emancipation Proclamation?

There lies the major difference. Lincoln didn't authorize something he was specifically prevented from doing under the law. Bush violated the FISA law.

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There is no law that even the president can ignore. The president is not "above the law."

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cicerone imposter wrote:

mm, We are talking about a 'specific' law under FISA established by congress on wiretaps of American Citizens; FYI that was only two decades ago - not over 100 years ago. Comprende?

Oh,I get it now...
Only those Presidents of the last 2 decades cannot supercede congress,all the Presidents before that can!!!

That makes things quite clearer and easier to understand.

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You're not only an ignorant American, you are dumber than most.

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Ticomaya wrote:

Debra_Law wrote:
What portion of FISA is unconstitutional? Is that portion unconstitutional on its face or as applied? May the unconstitutional provision or application be severed from the statute consistently with congressional intent?

Is there some particular reason you and Cyclops desire to rehash this all over again? You've already asked this question ... I suggest you go back and re-read my response.

You evaded then; you're evading now. The fact that you can't answer means you can't support your position.

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Tico, If this is a "rehash," please cut and paste it here. It sounds more like evasion to me also.

Exactly what part of FISA is unconstitutional?

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Debra_Law wrote:

Ticomaya wrote:
Debra_Law wrote:
What portion of FISA is unconstitutional? Is that portion unconstitutional on its face or as applied? May the unconstitutional provision or application be severed from the statute consistently with congressional intent?

Is there some particular reason you and Cyclops desire to rehash this all over again? You've already asked this question ... I suggest you go back and re-read my response.

You evaded then; you're evading now. The fact that you can't answer means you can't support your position.

I did not evade then. You insisted then that the entire statute is either unconstitutional in its entirety and void ab initio, or it is constitutional and the president has no authority to override a constitutional enactment by executive order. However, I believe that if the statute can be read in such a way to remain Constitutional, it should be read that way, but to the extent that it directly interferes with the President's constitutional authority it is unconstitutional. The canon of statutory construction to avoid Constitutional doubt must be followed if there is a fairly possible way to interpret FISA in such a way that would avoid any such Constitutional questions. One way to do that is to construe the AUMF as Congressional authorization for the President's program. And of course under the test in Youngstown the AUMF brought the foreign intelligence surveillance to a Category I, where the President has the most authority.

Of course I'm not alone in my opinion on this matter. Here is a portion of a letter to the House Judiciary Committee from Constitutional Law professor John Eastman, testifying regarding the NSA matter:

Quote:

John Marshall's 1800 statement to Congress dealt with an attempt by Congress to circumscribe the President's powers in the negotiation of treaties, much like the interpretations of the FISA statute being pushed by some in Congress is an attempt to circumscribe the President's power to conduct foreign intelligence surveillance, yet the Supreme Court in Curtiss-Wright was manifestly clear that Congress had no authority to intrude upon the President's constitutional powers in the foreign arena : "Into the field of negotiation [of treaties] the Senate cannot intrude; and Congress itself is powerless to invade it." Curtiss-Wright, 299 U.S., at 319. The reason for the Court's statement is particularly germane to the present controversy: "[The President] has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results." Id., at 320 (emphasis added).

It should be noted that this Administration is not the first to make such claims. Indeed, as the DOJ Report correctly notes, similar arguments have been advanced, successfully, by every administration since electronic surveillance technology was developed. The notion that Congress cannot by mere statute truncate powers the President holds directly from the Constitution is a common feature of executive branch communications with the Congress. Two examples from the DOJ Report are particularly revealing: Griffin Bell, President Jimmy Carter's Attorney General, testified during debate in Congress over the adoption of FISA that, although FISA did not recognize any inherent power of the President, it "does not take away the power [of] the President under the Constitution." DOJ Report at 8 (citing Foreign Intelligence Electronic Surveillance Act of 1978: Hearings on H.R. 5764, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of the House Comm. on Intelligence, 95th Cong., 2d Sess. 15 (1978) (Statement of Attorney General Bell)). President Clinton's Deputy Attorney General, Jamie Gorelick, made a similar point while testifying before Congress when amendments to FISA were being considered: "[T]he Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes . . . ." DOJ Report at 8 (citing "Amending the Foreign Intelligence Surveillance Act: Hearings Before the House Permanent Select Comm. On Intelligence, 103d Cong. 2d Sess. 61 (1994) (statement of Deputy Attorney General Jamie S. Gorelick)).

Granted, some in Congress may think this analysis affords too much power to the President; but their beef is with the drafters of our Constitution, not with the current President who, following the example of a good number of his predecessors, has determined it necessary to exercise the full extent of his constitutional powers in order to defend our nation against attack.

LINK

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cicerone imposter wrote:

Tico, If this is a "rehash," please cut and paste it here. It sounds more like evasion to me also.

Exactly what part of FISA is unconstitutional?

That part which encroaches upon the President's inherent authority to conduct warrantless wiretapping for the purposes of gathering foreign intelligence.

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I remember, Tico, that you pointed rightly - especially recently - quite often to the fact that guilty is someone only after a court decided so.

If and when e.g. a law is unconstitional - that's something everyone can decide according to her/his knowledge or just gusto? (We have Constitutional Courts here, who decide such - until they decided innocent until proven guilty applies analogously.)

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Walter Hinteler wrote:

I remember, Tico, that you pointed rightly - especially recently - quite often to the fact that guilty is someone only after a court decided so.

If and when e.g. a law is unconstitional - that's something everyone can decide according to her/his knowledge or just gusto? (We have Constitutional Courts here, who decide such - until they decided innocent until proven guilty applies analogously.)

Allow me to clarify your misunderstanding of my position: If someone is guilty they are guilty before trial, but they are entitled to the presumption of innocence in the US prior to be found guilty in a court of law.

If a law is unconstitutional, it is unconstitutional before being declared unconstitutional by a court. Just because Congress passes legislation and the President signs it doesn't mean that it is Constitutional. There is historical precedent for a US President unilaterally deciding a law is unconstitutional and refusing to follow it. One relatively recent example is when Clinton unilaterally determined that a section of the Communications Decency Act -- which he signed into law, BTW -- which restricted abortion-related information on the internet was unconstitutional, and he directed the Justice Department not to enforce it. (LINK)

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Ticomaya wrote:

If someone is guilty they are guilty before trial, ... .

I even didn't know this Embarrassed

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Walter Hinteler wrote:

Ticomaya wrote:
If someone is guilty they are guilty before trial, ... .

I even didn't know this

I apologize for confusing you further when I was trying to clarify. Maybe we ought to define "guilty." I am, of course, talking about reality and not legal presumptions or findings. I'm not talking about "guilty" in the sense of having been adjudged to have committed a crime, but in the sense of being responsible for the acts that constitute a crime. Of course in the context of criminal law an accused person is entitled to a presumption of innocence, and will not be considered guilty until found to be guilty in a court of law. But if they are in fact guilty of a crime, they are guilty before the pronouncement by the judge, because they committed the crime before the finding.

For example, if Joe Sixpack takes a gun and runs down to the corner bank, tells the teller to give him all the money, and leaves with $10,000, he has committed a robbery, and he is guilty. He is presumed innocent until found guilty by a court, but the finding of guilt has not altered the facts of his actions, which consituted a robbery.

Similarly there is a presumption that a law is constitutional, and Joe Sixpack cannot ignore a law because he thinks it is unconstitutional. He may think the prohibition on robbery is an encroachment upon his civil rights, and the statute is unconstitutional. He may raise that as a defense at his trial, and there is a presumption that the law is in fact constitutional, and he will bear the burden of proving it is unconstitutional. But if the law is determined to be unconstitutional by a court, it was unconstitutional at the time Joe walked into the bank.

But the US President is not Joe Sixpack, and as I've said there is historical precedence in this country for a President to interpret the Constitutionality of laws, even though it is primarily the purview of the Judicial Branch.

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Ticomaya wrote:

Walter Hinteler wrote:
I remember, Tico, that you pointed rightly - especially recently - quite often to the fact that guilty is someone only after a court decided so.

If and when e.g. a law is unconstitional - that's something everyone can decide according to her/his knowledge or just gusto? (We have Constitutional Courts here, who decide such - until they decided innocent until proven guilty applies analogously.)

Allow me to clarify your misunderstanding of my position: If someone is guilty they are guilty before trial, but they are entitled to the presumption of innocence in the US prior to be found guilty in a court of law.

If a law is unconstitutional, it is unconstitutional before being declared unconstitutional by a court. Just because Congress passes legislation and the President signs it doesn't mean that it is Constitutional. There is historical precedent for a US President unilaterally deciding a law is unconstitutional and refusing to follow it. One relatively recent example is when Clinton unilaterally determined that a section of the Communications Decency Act -- which he signed into law, BTW -- which restricted abortion-related information on the internet was unconstitutional, and he directed the Justice Department not to enforce it. (LINK)

That's pretty misleading Tico. Care to point to the specific part of the CDA that requires prosecution of those putting abortion material on the web? Prosecutors have always had the ability to decide which crimes to pursue based on resources. They do NOT have the ability to break laws as they see fit. There is quite a difference between failing to prosecute a crime and committing one.

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Tico, this is a tautology:

Quote:

If a law is unconstitutional, it is unconstitutional before being declared unconstitutional by a court.

Laws are not inherently constitutional or not, given the level of interpretation which is neccessary to decide that status. It is interpretation and decision of the SC which determines whether or not the law is unconstitutional, unless it blatantly violates the constitution, which FISA obviously does not.

Your argument and defense of the Presdient's actions rests upon an interpretation of the Constitution, not on pre-existing law, not upon factual evidence. That is why Bush will be in big big trouble over this one: not many senators agree with his interpretation that he can do any damn thing he wants in the name of waging war, and most Citizens don't either.

MM, Lincoln had no more authority to do what he did then Bush does; the only question is whether or not Congress and the people of America let him get away with overstepping his authority or not. They let Lincoln get away with it; I doubt Bush will get off so easy.

Cycloptichorn

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