Victory! Illegal Snooping Law Expires!

[nobody_special]

I listed the provision that grants the executive all executive power -- Art II, sec. 1

"Grants the executive all executive power?" -- that's a tautology.

Read Article 2 section 1 again... it doesn't grant power to the executive, it merely states that the executive power is vested in the President, gives the 4 year term of office, provides for how the executive is elected and what the required qualifications are, and that he'll get paid for the job and take an oath of office.

That's all it says. Nowhere does it say the Executive has the power for unlimited surveillance outside the US.

Then what has Jane Harman been doing on the oversight committee?

You mean, aside from criticizing the Protect America Act (the legislation that just expired)? And it's not like the oversight committee has been getting full disclosure...

As for your quote of Robert Turner, it doesn't tell the whole story. For example, the Truong case ruled that warrantless taps were okay only for foreign intelligence, not for criminal cases. Further, Truong pre-dates the original FISA act. The article you're quoting from is really arguing that FISA itself is unconstitutional (as in unitary executive theory); I can't agree with that.

 

[nobody_special]

STAGE 2: I don't think your second point necessarily follows from the first.

Without getting into everything else that was said, if I remember my conlaw correctly, if person A calls person B and person B's phone has been properly tapped, person A has no 4th amendment claim.

Here, a warrant was properly obtained for surveillance on US citizens.

Therefore, if someone in the US calls someone in a foreign country and the US is tapping the phone in the foreign country a warrant is irrelevant as the US citizen has no expectation of privacy in that phone call.

Here, no warrant was obtained for surveillance on a call involving a US citizen. The original FISA law requires a warrant when one party is a "US Person" (includes citizens and legal permanent residents) in the United States. (I could be wrong on this... not sure.) AFAIK your scenario here is not in violation of FISA.

That said, if this were to happen indiscriminately or in lack of reasonable suspicion (e.g. via the "dragnet" taps described by Mark Klein) it's questionable -- certainly unethical IMO and a violation of privacy where an expectation of privacy exists. It would also be a prior restraint on speech.

The big hoopla is really about warrantless domestic wiretapping. I'm not sure what the case law says about surveillance of US persons outside the US -- anyone have a citation? At any rate, IMO the 4th Amendment restraint on US government actions toward US persons shouldn't stop at the border, and there's nothing in the Constitution to suggest that it does.

 

[zukiphile]

Quote:
I listed the provision that grants the executive all executive power -- Art II, sec. 1

"Grants the executive all executive power?" -- that's a tautology.

Read Article 2 section 1 again... it doesn't grant power to the executive, ...

Of course it does. As you note it grants executive power soley to the executive.

Nowhere does it say the Executive has the power for unlimited surveillance outside the US.

If foreign surveillance is an executive power (and I suggest that it is neither judicial nor legislative), then it does in fact vest the power of foreign surveillance solely in the president.

Since you agree that FISA cannot amend the COTUS, you should also agree that to the degree that FISA would purport to limit the exec's powers under the COTUS, FISA would be unconstitutional.

 

[Pat H]

Executive power is the power to execute laws passed by Congress, congressional powers are limited to specific, express areas. The executive branch does not possess any power beyond those areas listed as available to congress, and listed in the US Constitution, I believe there are 8 of these areas.

I'm a bit confused by your use of the term "executive power" could you expand on your concept of what that means, to you?

 

[zukiphile]

I'm a bit confused by your use of the term "executive power" ...

What do you find confusing about it?

Executive power is the power to execute laws passed by Congress,...

Certainly that would not be the full extent of executive power. That would be incorrect for a few reasons not the least of which is that it would make the executive a subsidiary creature of the legislature, rather than a co-equal branch. Under that theory, there would have been no executive power until the congress passed laws. Washington would have had no power whatsoever at the beginning of his first term.

Executive power is the power of the executive branch of the US government.

 

[yomama]

Wow

This has been a great topic, as evidenced by the 106 posts when I checked. Really, this dialogue is why I joined the forum.

Ok, well where to start. CGSteve8718, thanks for your kind reply. I will address false accusations in comparing to many other warrents given without due cause as some like myself would argue. A quick call to a Judge with little more than a hunch or a rat, and bam there on you like hot butter. Please let's not go off topic on this one, was just an example, nothing more.

Alos CGSteve, my hat goes off to you. Thank you from the bottom of my heart for your service, and without you, we would not be having this conversation. End of story, you are a hero.

Marko Kloos, I guess my belief at this point in my life is it really doesn't matter who is in the White House. Really, when has a president given us a gun right in the last few decades. Bush only let the AWB expire, didn't protect us for the future. Regan was not a friend for guns either. We all know what Clinton did. Carter, ha. My point is that is now up to our Legislators and Judicial system.

ZeSpectre, they still love it when they can kill as many of us as possible while scaring the rest of us. They didn't win, and we will continue to kick the hell out of them.

ssilicon, you have given me some thought . I really have to gather more thoughts to respond, but safe to say your posting was extremely well put together, and a debate with you would be difficult at the least. I think many other comments made here would have to be organized for me to have any sort of chance, but safe to say I have strong belief in my feelings.

ZeroJunk also you have my thoughts written simply. We are free, very free. In fact so free we are able to speak about this still. I didn't see anyone fall off this post, which then I may worry someone was taken out for political speach.

WildAlaska, I always enjoy your dialogue. I also think you show incredible restraint in your language, and are a kind soul.

To end my post I also want to point one last idea out, only truly flushed out from 106 posts for this thread. We have FISA, COTUS, 1st, 4th, 10th ammendments, Executive power, Judicial review, Legislators, Patriot act, Bill of Rights. All of these contributed to our dialogue. In the end, some of us believe these are in existence to justify our belief that the original topic is in our belief systems. Some of us have the opposite belief system. However, in the end, we all have learned more about the opposing side, and I feel I have made growth. I hope you all agree.

 

[nobody_special]

Certainly that would not be the full extent of executive power. That would be incorrect for a few reasons not the least of which is that it would make the executive a subsidiary creature of the legislature, rather than a co-equal branch. Under that theory, there would have been no executive power until the congress passed laws. Washington would have had no power whatsoever at the beginning of his first term.

Legislative control is a check on executive, much like the judiciary can strike down laws of the legislature. The Executive has no power without Congress, at the very least, because it has no funding without Congress.

Beyond that, please tell us where the additional powers of the Executive are described.

Executive power is the power of the executive branch of the US government.

"You keep using that word. I do not think it means what you think it means."
-- Inigo Montoya

You keep repeating this statement, but it is a tautology; it has no meaning. It's like saying 3=3.

 

[zukiphile]

Certainly that would not be the full extent of executive power. That would be incorrect for a few reasons not the least of which is that it would make the executive a subsidiary creature of the legislature, rather than a co-equal branch. Under that theory, there would have been no executive power until the congress passed laws. Washington would have had no power whatsoever at the beginning of his first term.
Legislative control is a check on executive, much like the judiciary can strike down laws of the legislature. The Executive has no power without Congress, ....

Emphasis added. If you believe that the exec only has powers as delegated to him by congress, I think you have an idiosyncratic view of the COTUS.

The Executive has no power without Congress, at the very least, because it has no funding without Congress.

Funding and constitutionality of authority are fully distinguishable. Conflating the two does nothing to untangle you view of their functions.

Executive power is the power of the executive branch of the US government.

***
You keep repeating this statement, but it is a tautology; it has no meaning. It's like saying 3=3.

Actually, I don't. That is my part of my reponse to your purported confusion about the meaning of the term "executive power". I have asked you what you find confusing about the term, but you haven't responded.

You can protest that defining something involves tautology, but unless you are more specific about what confuses you, a more specific response merely represents a guess at what you intend to ask.

The range and scope of presidential power is a matter of considerable writing some of which I have already cited. The point of Art II sec. 1 is that it vests in the president, not congress or the courts.

If foreign surveillance is an executive power (and I have suggested here without contradiction that it is neither judicial nor legislative), then it does in fact vest the power of foreign surveillance solely in the president.

Since you agree that FISA cannot amend the COTUS, you should also agree that to the degree that FISA would purport to limit the exec's powers under the COTUS, FISA would be unconstitutional.

 

[nobody_special]

I have asked you what you find confusing about the term, but you haven't responded.

I have, repeatedly, and so has Pat H. You haven't responded:

Beyond that, please tell us where the additional powers of the Executive are described.

In addition to that, it'd be handy to know from where the authority for that power derives, if not enumerated in the Constitution or provided by an act of Congress.

Edited to add: I suggest you read the Wikipedia entry on the Executive branch, then search for secondary sources. I think you'll find that the Executive Powers are simply those granted by Congress, plus those given in Article 2.

 

[zukiphile]

First, my apologies for confusing Pat H and Nobody with one another.

Quote:
I have asked you what you find confusing about the term, but you haven't responded.

I have, repeatedly, and so has Pat H. You haven't responded.

I will be happy to discuss executive power further if one of you could tell me what isn't apparent from the words themselves.

Quote:
Originally Posted by nobody_special
Beyond that, please tell us where the additional powers of the Executive are described.

In addition to that, it'd be handy to know from where the authority for that power derives, if not enumerated in the Constitution or provided by an act of Congress.

Is the source of the confusion that executive powers are not fully enumerated?

Would you both agree that foreign surveillance is in fact an executive rather than legislative or judicial function?

 

[nobody_special]

I will be happy to discuss executive power further if one of you could tell me what isn't apparent from the words themselves.

Zukiphile, I appreciate that you're engaging in a good and honest discussion. I'll try to write clearly here in order to avoid misunderstandings. To me, what's not apparent from your posts is the scope of "executive power" beyond what is written in Article 2 of the Constitution; what those powers may be, and from where the authority is derived.

Is the source of the confusion that executive powers are not fully enumerated?

My position is that the executive powers are fully enumerated in Article 2 Sections 2 and 3. You appear to be arguing that there are more powers granted to the executive branch; if so, I have never seen supporting evidence for them.

Would you both agree that foreign surveillance is in fact an executive rather than legislative or judicial function?

I agree that the act of surveillance falls under the domain of the executive branch; but only insofar as it executes the law. This doesn't mean the executive branch can unilaterally engage in foreign surveillance. The power to do so is not granted to the executive in Article 2, except by the provision that "he shall take Care that the Laws be faithfully executed." So foreign surveillance can only be done through an act of congress, i.e. as prescribed by law.

The details and scope of such laws should be limited to fall within the Constitutional authority given to Congress, and further such laws should not violate the rights of the people - enumerated or not. Note the use of should here is to acknowledge that political and legal reality often doesn't meet my expectations.

 

[zukiphile]

My position is that the executive powers are fully enumerated in Article 2 Sections 2 and 3. You appear to be arguing that there are more powers granted to the executive branch; if so, I have never seen supporting evidence for them.

That explicit statement is appreciated. I will attempt to address reasonably succinctly below, but if I miss something in your position on which you would like more, let me know.

The details and scope of such laws should be limited to fall within the Constitutional authority given to Congress, and further such laws should not violate the rights of the people - enumerated or not. Note the use of should here is to acknowledge that political and legal reality often doesn't meet my expectations.

We are both discussing constitutional theory which allows for minority opinions. It is not a valid objection to such a theory that there is some opposing case authority somewhere that is inconsistent with the proposed theory. I would note that the further a theory departs from conventional analysis and case law, the more susceptible the theory is to being accurately described as a marginal or incorrect view.

On the other hand, holding a minority view of constitutional power is not a rock solid basis for concluding that a practice contrary to one’s own views is illegal.

I agree that the act of surveillance falls under the domain of the executive branch; but only insofar as it executes the law. This doesn't mean the executive branch can unilaterally engage in foreign surveillance. The power to do so is not granted to the executive in Article 2, except by the provision that "he shall take Care that the Laws be faithfully executed." So foreign surveillance can only be done through an act of congress, i.e. as prescribed by law.

Except that faithful execution of laws is only one of the executive powers specifically mentioned in the COTUS, so it cannot be the only executive power. He is also specifically empowered to make treaties, receive ambassadors and other public ministers, and serve as CIC. So, the COTUS itself doesn’t support the idea that the exec is merely a administrator of congressional laws.

Beyond that, there is also the unqualified and general grant of executive power in the office of president. In the presence of a general grant and several specific examples of the power, no generally accepted rule of construction would construe those examples as limitations.

The difference between the legislative and executive grant is instructive. “All legislative powers herein granted shall be vested in a congress of the United States.” He executive grant contains no such limitation. “The executive power shall be granted in a President of the United States.” The executive’s power within government is not limited by enumeration.

This view is not novel. "The pre-eminent responsibility of the president for the formulation and conduct of American foreign policy is clear and unalterable," Fulbright said. "He has, as Alexander Hamilton defined it, all powers in international affairs 'which the Constitution does not vest elsewhere in clear terms.'"

Despite his bitter disagreement with Jefferson on many other issues, drawing on this same clause three years later, Alexander Hamilton remarked that "as the participation of the Senate in the making of Treaties, and the power of the Legislature to declare war, are exceptions out of the general 'Executive Power' vested in the President, they are to be construed strictly — and ought to be extended no further than is essential to their execution."

http://www.virginia.edu/cnsl/pdf/TurnerChronicleHigherEducationop-ed2006.pdf

The power of the president to undertake all constitutional tasks is inherent in his position as the exec.

When FISA was enacted, Congress established not only the Foreign Intelligence Surveillance Court, but also a Foreign Intelligence Surveillance Court of Review to hear appeals from the FISA Court. In its only case, decided on November 18, 2002, the unanimous FISA Court of Review observed that every court to have decided the issue has, and I quote, "held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information," and concluded: "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." (My emphasis.)

http://www.fas.org/irp/congress/2006_hr/033106turner.html

You may personally disagree with Marshall in Marbury, but it is a widely recognised authority on the distribution of federal powers. Marshall wrote,

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. . . . [A]nd whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.

In other words, in certain areas of executive power such as foreign affairs, there is no check whatsoever except the next election.
Any legislation, such as FISA, that would purport to limit those powers would be unconstitutional. Marshall wrote that, "...an act of the legislature, repugnant to the constitution, is void."

So, the president’s inherent power to conduct foreign affairs is plenary as granted by the COTUS. Any grant of power by congress in this area is redundant, and any limitation of it is void.

 

[nobody_special]

Before I get into the "meat" of the argument, one thing to point out:

the COTUS itself doesn’t support the idea that the exec is merely a administrator of congressional laws.

Surely not exclusively; my previous posts recognized the powers enumerated in Article 2 section 3. But what is of particular interest to me, for this discussion, is any powers the executive might hold beyond those authorized by law or enumerated in Article 2. The main point of our disagreement stems from this:

The executive’s power within government is not limited by enumeration.

The primary basis for that statement is the lack of the term "powers herein granted". I submit that this argument is a bit weak, as the Presidency is defined by Article 2, and nowhere does Article 2 suggest that there are executive powers beyond those enumerated there. The lack of a limiting clause ("powers herein granted") is not, in itself, evidence for unrestricted powers beyond the scope of those enumerated in Article 2.

In fact, I find the view that the executive powers are not limited by enumeration to be dangerous... much like the neo-conservative "unitary executive" theory, it allows for an executive power grab.

Beyond that, there is also the unqualified and general grant of executive power in the office of president. In the presence of a general grant and several specific examples of the power, no generally accepted rule of construction would construe those examples as limitations.

It's not so much a "rule of construction" (by which I presume you mean interpretation of the language). The Constitution created the government and defined the roles of the 3 branches. It's a presumption to assert that one of the branches has powers beyond those described by the document that created it.

As for your citation of Fulbright, the assertion that "foreign policy" is in the domain of the executive is supported by Article 2 section 3, especially e.g. in the role of CiC and the ability to make treaties. The quote from Marbury again discusses constitutional powers subject only the the discretion of the executive, but I don't see any reason to construe from that quote powers beyond those enumerated.

Also, even granting (for the sake of argument) a general power to conduct "foreign affairs" to the executive, it could still be limited in application by the Bill of Rights, or other unenumerated rights. I'm not saying that a warrant should be necessary for surveillance of foreign enemies, but at least U.S. persons (as defined by FISA) should have protection against arbitrary US government intrusion, regardless of geographic location.