America... Spying on Americans

Even Lincoln knew the entire congress can not be trusted with a secret.

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Even Lincoln knew the entire congress can not be trusted with a secret.

An opinion, has no bearing on law.

Cycloptichorn

It seems rather clear that he has violated his oath. We can discuss whether or not you feel the president should be bound by FISA; we can discuss whether you think FISA is a good law or not; but the fact remains that FISA is established law, and until it is declared unconstitutional by the SC the president does not have the right to break it, for any reason. This is not to say that he cannot do so, but that he will have to face the same kind of punishment that any other lawbreaker would for breaking the law.

The fact that some feel the law should not limit his authority is immaterial.

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I'd like to return to the point of your agreeing with my conclusion that Bush broke the law, in absence of any ruling stating that said law was unconstitutional. Do you deny this?

Do I deny what? I have a sense for what you might be trying to ask, but would you please try and state your question clearly?

Do you deny that, until FISA has been ruled unconstitutional, then Bush does not have the authority to blatantly ignore FISA? That he would be both breaking the law and violating his oath of office?

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on preview: I couldn't find the section in article 2 of the constitution that allows Bush to break the law, for any reason. Can you point it out to me?

I, too, don't find any section in the Constitution that allows him to ignore any laws, for any reason. Do you conclude he cannot do so?

Is that why you have concluded he cannot defend our country against terrorism .... because it isn't listed in the Constitution?

This is a false argument. It is not neccessary to break the law to protect our country from terrorism. Bush's highest priority should be to uphold the law. The only ones arguing that it is neccessary are the Bushies.

Therefore, it is not my conclusion whatsoever that Bush cannot defend against terrorism because it isn't listed in the constitution; just that he cannot break the law.

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The fact that the Prez is the CIC does not give him the power to break the law with impunity, sorry.

Is someone suggesting it does?

It would appear so. Earlier, you mentioned the powers granted in Article 2. Why did you do so, if not to imply that some section of this article grants the Prez. powers? The only applicable section that I found that MIGHT apply was the war powers. Can you help me out with what you were talking about?

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But the Constitution DOES state the the ONLY oath the president has to take, an OATH, is to uphold the constitution. This is without a doubt his primary responsibility, and he has failed in doing so.

I failed to see where in the Constitution it says that is his primary responsibility.

It would seem to me that the fact that only one of the President's responsibilities requires an oath, than that responsibility is the primary responsibility. Otherwise the oath would include the primary responsibility, wouldn't it? Why make the president take an oath for his secondary responsibilities, but not his primary ones? Logic dictates, that given the seperation of powers in our Democratic system, the primary duty of the Executive is to uphold the laws of the nation.

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In any event, assuming a law is unconstitutional, please explain how following that unconstitutional law furthers what you believe to be a President's primary responsibility of upholding the Constitution.

Why assume the law is unconstitutional? There is no reason to do so. If the law was found to be unconstitutional, then there hardly is an issue, is there?

I don't believe that is the case here, and legally, it most certainly is not the case.

An excellent discussion, thanks.

Yes, I deny it. He has the authority to blatantly ignore an unconstitutional law, whether it has been ruled unconstitutional or not.

Because I think the President has the authority to conduct warrantless searches for the purposes of gathering foreign intelligence.

There must be more to it because Bush consulted a gaggle of lawyers that assured him it was legal before attempting to order the NSA wire taps.

When the details become part of the public record, then we will see what the law says and how it relates to the orders given by the CIC.

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Yes, I deny it. He has the authority to blatantly ignore an unconstitutional law, whether it has been ruled unconstitutional or not.

This is a logical error on your part. Bush does not have the authority to decide whether a law is unconstitutional or not. Therefore, he cannot legally decide to break a law which has not been shown to be unconstitutional by a body who is capable of deciding. Until the law has been RULED unconstitutional it can be assumed to BE constitutional. You know this as well as I do.

Theoretically, under what you are proposing, Bush can declare any law Unconstitutional and decide to start ignoring it at any time. Which is obviously not the case.

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Because I think the President has the authority to conduct warrantless searches for the purposes of gathering foreign intelligence.

The currently existing laws disagree with you.

Your argument that no laws passed by congress can limit the authority of the Prez. holds no water with me, sir.

Until the law itself has been changed, or ruled unconstitutional and stricken, then Bush cannot ignore said law any more than any other citizen can. There really isn't anything more to the issue than this.

Cycloptichorn

Sure he can ... he's the President.

Ticomaya wrote:

Sure he can ... he's the President.

I'm out here since my knowledge about US constitutional law is only rudimentary.
But if you don't mind a question in between: isn't that usually what qualifies e.g. an absolustistic monarchy?

Cycloptichorn wrote:

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Yes, I deny it. He has the authority to blatantly ignore an unconstitutional law, whether it has been ruled unconstitutional or not.

This is a logical error on your part. Bush does not have the authority to decide whether a law is unconstitutional or not. Therefore, he cannot legally decide to break a law which has not been shown to be unconstitutional by a body who is capable of deciding. Until the law has been RULED unconstitutional it can be assumed to BE constitutional. You know this as well as I do.

Bush has the authority to decide whether a law is unconstitutional or not in the first instance, and then pattern his actions based on that decision. Now, the effect of that decision, understandably, is not to effectively and legally decide whether the law is in fact unconstitutional, but whether he will consider it unconstitutional for the purposes of following it or not.

Thus, insofar as you conclude Bush may not decide whether or not to follow a law he has determined to be unconstitutional, I disagree. Whether he is justified in his decision to circumvent the law, I recognize, is an entirely different matter.

And we have accurately nailed the point down here after much discussion. Bush had the ability to make the decision, but not the authority to do so without consequence for breaking the law. This is why he is in trouble at the moment. His determination of the legality of a law means nothing from a legal point of view.

As you have pointed out, Bush was able to do so and did do so; but that doesn't make it either legal or right. Now he has to face the consequences of his decision.

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Theoretically, under what you are proposing, Bush can declare any law Unconstitutional and decide to start ignoring it at any time. Which is obviously not the case.

I disagree. Theoretically that is exactly what Bush could do.

But you are correct when you point out that he is not doing that.

Oh, I think he is doing exactly that. I meant that that theory holds no basis in reality. From a legal point of view.

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Because I think the President has the authority to conduct warrantless searches for the purposes of gathering foreign intelligence.

The currently existing laws disagree with you.

The most recent legal opinion on the subject (the FISCR opinion) disagrees with you. What say you about that?

You are referring to a single line in an opinion, not a decision. The opinion of the court is immaterial. The decision is what is important, and no court has decided upon this case. Until they do, the law can be said to be both legal and constitutional, and the Prez is bound by it. I do believe DL made this quite clear some time ago.

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Your argument that no laws passed by congress can limit the authority of the Prez. holds no water with me, sir.

(At the risk of bringing up another flurry of nonsensical comments about recess appointments from DL, I'm going to do it anyway.)

Given your above statement, since you believe Congress can pass laws to limit the authority of the President, do you believe Congress could lawfully pass a law to limit the ability of the President to make "recess appointments"? If not, why not?

I don't see how it applies to the case in hand. You are comparing a theoretical law which would explicitly limit one of the president's explicitly written powers, to ignoring a law which does not limit any explicitly written power but instead an implied power. Apples and Oranges. Once again, DL made this point quite clearly earlier in the thread.

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Until the law itself has been changed, or ruled unconstitutional and stricken, then Bush cannot ignore said law any more than any other citizen can. There really isn't anything more to the issue than this.

Cycloptichorn

Sure he can ... he's the President.

Whether he is justified in his decision to circumvent the law, I recognize, is an entirely different matter.

Ticomaya wrote:

Cycloptichorn wrote:

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Yes, I deny it. He has the authority to blatantly ignore an unconstitutional law, whether it has been ruled unconstitutional or not.

This is a logical error on your part. Bush does not have the authority to decide whether a law is unconstitutional or not. Therefore, he cannot legally decide to break a law which has not been shown to be unconstitutional by a body who is capable of deciding. Until the law has been RULED unconstitutional it can be assumed to BE constitutional. You know this as well as I do.

Bush has the authority to decide whether a law is unconstitutional or not in the first instance, and then pattern his actions based on that decision. Now, the effect of that decision, understandably, is not to effectively and legally decide whether the law is in fact unconstitutional, but whether he will consider it unconstitutional for the purposes of following it or not.

Thus, insofar as you conclude Bush may not decide whether or not to follow a law he has determined to be unconstitutional, I disagree. Whether he is justified in his decision to circumvent the law, I recognize, is an entirely different matter.

And we have accurately nailed the point down here after much discussion. Bush had the ability to make the decision, but not the authority to do so without consequence for breaking the law. This is why he is in trouble at the moment. His determination of the legality of a law means nothing from a legal point of view.

As you have pointed out, Bush was able to do so and did do so; but that doesn't make it either legal or right. Now he has to face the consequences of his decision.

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Theoretically, under what you are proposing, Bush can declare any law Unconstitutional and decide to start ignoring it at any time. Which is obviously not the case.

I disagree. Theoretically that is exactly what Bush could do.

But you are correct when you point out that he is not doing that.

Oh, I think he is doing exactly that. I meant that that theory holds no basis in reality. From a legal point of view.

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Because I think the President has the authority to conduct warrantless searches for the purposes of gathering foreign intelligence.

The currently existing laws disagree with you.

The most recent legal opinion on the subject (the FISCR opinion) disagrees with you. What say you about that?

You are referring to a single line in an opinion, not a decision. The opinion of the court is immaterial. The decision is what is important, and no court has decided upon this case. Until they do, the law can be said to be both legal and constitutional, and the Prez is bound by it. I do believe DL made this quite clear some time ago.

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Your argument that no laws passed by congress can limit the authority of the Prez. holds no water with me, sir.

(At the risk of bringing up another flurry of nonsensical comments about recess appointments from DL, I'm going to do it anyway.)

Given your above statement, since you believe Congress can pass laws to limit the authority of the President, do you believe Congress could lawfully pass a law to limit the ability of the President to make "recess appointments"? If not, why not?

I don't see how it applies to the case in hand. You are comparing a theoretical law which would explicitly limit one of the president's explicitly written powers, to ignoring a law which does not limit any explicitly written power but instead an implied power. Apples and Oranges. Once again, DL made this point quite clearly earlier in the thread.

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Until the law itself has been changed, or ruled unconstitutional and stricken, then Bush cannot ignore said law any more than any other citizen can. There really isn't anything more to the issue than this.

Cycloptichorn

Sure he can ... he's the President.

He's just a man, like everyone else. Nowhere have you shown that Bush has the ability, or the authority, to decide a law is unconstitutional and ignore it without consequence. You have only stated that he has the ability to do so. Well, you are right; he did ignore the law. But he won't be able to ignore the consequences.

In summary, this line is the crucial one to our argument:

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Whether he is justified in his decision to circumvent the law, I recognize, is an entirely different matter.

It is my contention that until it has been shown otherwise, Bush is not justified in doing so, from a legal standpoint, no matter whether terrorism is inovlved or not.

Cheers

Cycloptichorn

Debra_Law wrote:

Ticomaya wrote:

The fact that you continue to bring up this "recess appointments" matter leads me to conclude you are a lost cause.

I see you're playing your diversionary games again.

You are the one who brought in the irrelevant subject of "recess appointments" into this discussion and repeatedly demanded that I respond. When I respond, you accuse me of "continuing to bring up" the very thing that you demanded that I address. Are you having fun with your silly game?

I have never ... I repeat, NEVER repeatedly asked you to respond to anything regarding "recess appointments," which is but one of many express powers held by the Executive.

That's what I've been saying, Ticomaya. Your argument that the statute is constitutional except when its not constitutional--when the president straps on his "inherent powers"--is nonsensical.

FISA is constitutional. Accordingly, it is a crime for the president or any other government official to violate it. The president doesn't have any "inherent powers" to override, ignore, or evade a duly enacted federal statute.

Debra_Law wrote:

That's what I've been saying, Ticomaya. Your argument that the statute is constitutional except when its not constitutional--when the president straps on his "inherent powers"--is nonsensical.

It's not constitutional to the extent it encroaches upon any inherent power possessed by the President.

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FISA is constitutional. Accordingly, it is a crime for the president or any other government official to violate it. The president doesn't have any "inherent powers" to override, ignore, or evade a duly enacted federal statute.

Talk about nonsensical ... you need to reread that last sentence. If Congress "duly enacts" a statute that, for instance, makes it illegal for the President to make recess appointments, that statute is unconstitutional, and the President has every right to make recess appointments in spite of it. And if that statute is part of a larger legislative act, the remainder of which does not encroach upon any power granted to the President, the remainder of the act is not unconstitutional. The President need not "strap on" anything.

But what I have repeatedly asked you to do, and what you have repeatedly failed or refused to do, is answer the following question:

Where in the Constitution do you find any authority for the President to invoke express powers as a means to circumvent duly enacted laws that Congress has the legislative power to enact?

Since I have asked that question of you about 4 times now, I'm starting to think you don't want to answer it.

. . . the entire Act is unconstitutional. Now, let's assume you are incorrect: In that case only a portion of the Act is unconstitutional. In either case, as I argue it, the portion that attempts to impede the President's inherent authority to conduct warrantless searches for purposes of foreign intelligence during a time of war should be found unconstitutional. . . .

Whether he is in "trouble" or not is yet to be seen. You and I appear to disagree on whether or not he had the authority to do what he did. You seem to think he had no authority, and I am saying he had the authority if the law is unconstitutional.

I agree with you that his determination of the legality means nothing from a legal point of view.

It appears he has done that with exactly one law. You are aware of more?

A "decision" is an "opinion," Cyclops. Don't start defining words with your own "special" meanings, because we won't get anywhere. Why not just go with the normal and customary use of the word? But since you probably doubt my word -- cause that's just the kind of guy you are -- here is the Blacks Law Dictionary (5th Ed.) definition of "Opinion":

"[i]The statement by a judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based. An expression of the reasons why a certain decision (the judgment) was reached in a case. A majority opinion is usually written by one judge and representes the principles of law which a majority of his colleagues on the court deem operative in a given decision; it has more precedential value than any of the following. A separate opinion may be written by one or more judges in which he or they concur in or dissent from the majority opinion, A concurring opinion agrees with the result reached by the majority, but disagrees with the precise reasonaing leading to that result. A dissenting or minority opinion disagrees with the result reached by the majority and thus disagrees with the reasoning and/or the principles of law used by the majority in deciding the case. A plurality opinion is agreed to by less than a majority as to the reasoning of the decision, but is agreed to by a majority as to the result. A per curiam opinion is an opinion "by the court" which expresses its decision in the case but whose author is not identified. A memorandum opinion is a holding of the whole court in which the opinion is very concise.[/i]"

No link ... that's straight out of the book on my desk. Sorry for any typos, I was typing quickly.

DL was trying to minimize that language in the FISCR opinion by calling it "dicta," which means an opinion of a judge that goes beyond the facts before the court. I agree that it's dicta ... but it's dicta that agrees with me and not you or DL.

So refine your statement, instead of leaving it inaccurate. You said you disagreed with my argument that "no laws passed by congress can limit the authority of the Prez." Yet you appear to admit that if -- hypothetically speaking, of course -- Congress were to pass a law limiting an express power, that would be unconstitutional. (I say appear in italics, because you didn't come right out and say it.) Are you instead saying: "Congress may limit an implied power of the President, but not an express power"? Please clarify.

Yes ... he's just a man ... flesh and bone. But the President of the United States is not just an ordinary citizen. He has powers that ordinary mortals don't have.

You have not shown me where Congress has the authority to enact a law that infringes upon a power held by the President.

No, he will not ignore the consequences, and it will certainly be interesting to see what they are.

It is my contention that whether Bush is justified in doing so, from a legal standpoint, remains to be decided.

"Terrorist surveillance program" is more accurate than "domestic spying program." It doesn't sound as sinister, or sound as negatively towards Bush, so we all understand why you dislike the term.

But please keep it up. You keep showing the American people why they are correct in believing the country is more secure with the current party in charge.

Ticomaya wrote:

Debra_Law wrote:

Ticomaya wrote:

The fact that you continue to bring up this "recess appointments" matter leads me to conclude you are a lost cause.

I see you're playing your diversionary games again.

You are the one who brought in the irrelevant subject of "recess appointments" into this discussion and repeatedly demanded that I respond. When I respond, you accuse me of "continuing to bring up" the very thing that you demanded that I address. Are you having fun with your silly game?

I have never ... I repeat, NEVER repeatedly asked you to respond to anything regarding "recess appointments," which is but one of many express powers held by the Executive.

You're LYING.

You presented a hypothetical law that prohibits the president from making recess appointments and you presented a question based on your hypothetical. You repeatedly asked me to respond to your question which was based on your hypothetical law that encroached upon the president's EXPRESS constitutional authority to make recess appointments.

When I repeatedly answered your question by addressing the hypothetical that you posed, you attacked me for continuing to bring up the very thing that you repeatedly asked me to answer.

Not only are you a diversionary game player, you're a liar. And round and round we go around Ticomaya's mulberry bush.

SEE ABOVE, Ticomaya. This is example of your diversionary game playing.

You did indeed bring the irrelevant subject of "recess appointments" into our discussion that led us down your diversionary trail of express powers (as set forth in your hypothetical) vs. inherent powers.

It is telling that the President has never claimed that FISA is unconstitutional and thus void ab initio. The president considers FISA to be a CONSTITUTIONAL enactment and he uses FISA procedures extensively to obtain FISA court approval to conduct domestic electronic surveillance of United States persons.

When I previously asked you, "Are you arguing that FISA is unconstitutional," you replied:

"No, I'm not. The FISCR opinion I've been citing didn't find it unconstitutional . . . . "

OKAY THEN, if FISA is constitutional, and you agree that FISA is constitutional, then the president must faithfully execute FISA in the manner established by Congress.

But, you have taken a ridiculous and nonsensical position that FISA is constitutional to the extent that the president chooses to use the procedures established by Congress and SIMULTANEOUSLY unconstitutional to the extent that the president autocratically chooses to evade the procedures established by Congress.

As I have repeatedly pointed out to you, you can't have it both ways. A statutory law cannot be constitutional on its face or applications and unconstitutional on its face or those same applications AT THE SAME TIME. It's either constitutional with respect to regulating governmental electronic surveillance of United States persons--or it's NOT.

Based on the foregoing, I have repeatedly pointed out that your argument that FISA is constitutional, except when its unconstitutional, is nonsensical.

That's akin to saying it's constitutional when the president wants to obey it; but it's unconstitutional when the president straps on his "inherent powers" and decides he doesn't want to obey it. You can't have it both ways.

You tried to defend your nonsensical argument by comparing FISA to a hypothetical statute that makes it illegal for the president to exercise his "recess appointment" power. I have repeatedly informed you that your comparison is without merit.

The president has EXPRESS constitutional authority to make recess appointments. If the president makes a recess appointment in spite of the hypothetical statutory prohibition, the president is acting in accordance with his EXPRESS constitutional authority. He is not acting in accordance with some undefined inherent power to violate federal laws. In the Youngstown framework, Congress would be excluded from having power to pass a law prohibiting the president from exercising his express powers. The president's recess appointment made in accordance with the president's express constitutional authority to make recess appointments would prevail.

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But what I have repeatedly asked you to do, and what you have repeatedly failed or refused to do, is answer the following question:

Where in the Constitution do you find any authority for the President to invoke express powers as a means to circumvent duly enacted laws that Congress has the legislative power to enact?

You have repeatedly asked me to respond? But, you just said that you DIDN'T repeatedly ask me to respond. Round and round we go around Ticomaya's mulberry bush . . . .

YOU presented a queston based on your hypothetical law that prohibits the president from exercising his EXPRESS constitutional power to make recess appointments, you mischaracterized that hypothetical law as one that Congress has the legislative power to make, and you HAVE REPEATEDLY ASKED ME to address your question.

AND, despite your lying diversionary game playing, I have repeatedly addressed your question. I just addressed your question at length above. AGAIN, Congress does not have constitutional authority (the legislative power) to enact a law that prohibits the president from making recess appointments. The Constitution itself gives the president EXPRESS authority to make recess appointments. Accordingly, the president would be invoking his express constitutional authority to make a recess appointment in spite of the hypothetical law in the hypothetical example you gave. The president would not be invoking some undefined inherent authority to violate a federal law.

The fact that the president may exercise his EXPRESS constitutional authority, e.g., to make recess appointments, in spite of a hypothetical law that prohibits him from doing so does NOT mean that the president has undefined INHERENT power to circumvent FISA when Congress clearly has constitutional power to enact FISA.

How many times do I need to answer you question?

NOW, I assume you will continue your diversionary game playing, yell at me for "continuing to bring up recess appointments" to address your question based on your hypothetical about recess appointments. I expect you will accuse me of NOT answering your question again, even though I have answered your question repeatedly. Are you having fun with your diversionary, thread derailing game?

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. . . the entire Act is unconstitutional. Now, let's assume you are incorrect: In that case only a portion of the Act is unconstitutional. In either case, as I argue it, the portion that attempts to impede the President's inherent authority to conduct warrantless searches for purposes of foreign intelligence during a time of war should be found unconstitutional. . . .

Accordingly, CONGRESS has express constitutional authority to make rules for government--even to make rules for government in good times and in bad times--in peace and in war--and to make rules for government concerning the conduct of war--to make rules for the detention and humane treatment of prisoners--and to make rules for spying on the American people on American soil to ensure compliance with the Fourth Amendment--etc.,

And even though CONGRESS has that EXPRESS constitutional authority,

You somehow believe that the president holds vast undefined INHERENT power to displace Congress in the exercise of Congress's EXPRESS CONSTITUTIONAL power and to institute an autocracy ruled by secret executive orders?

Not only do you go round and round the mulberry bush, you live in Disneyland full time. You're delusional . . . and your beliefs are scary. Where in the hell do you draw the line?

Inasmuch as the "war on terror" is a war into perpetuity, you apparently subscribe to an unprecedented theory that Congress has no ability to make rules for the government that the president isn't free to ignore during a time of war--meaning, the president is a power onto himself, an autocrat, forever and ever and ever because terrorism will never be squashed from the face of the earth. There will always exist some nut somewhere on this earth threatening to bomb us to hell . . . .

Defending Spy Program, General Reveals Shaky Grip on 4th Amendment
By E&P Staff
Published: January 23, 2006 10:05 PM ET
NEW YORK

. . . .

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

I'm not arguing that it is. It is unconstitutional to the extent it attempts to limit the President's authority to conduct warrantless searches for purposes of foreign intelligence. There is absolutely nothing inconsistent with that whatsoever.

But where does it say that in the Constitution? Earlier in this thread you seemed to be of the opinion that the president could not "invoke some undefined inherent authority" to violate a federal law, because the Constitution did not say he could. Yet you admit the President is authroized to ignore a federal law by invoking an "express" authority. yet you have not pointed to where the Constitution says he can.