Wednesday, January 04, 2006
Commander in Chief:Bush and his supporters use the argument that since the president is the Commander in Chief, it allows him to do pretty much anything he wants in the way of defending the nation - including authorizing the NSA to wiretap without court oversight. You know, the classic John Yoo position. However, a closer look at the U.S. Constitution reads thustly: 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; Which is our understanding. The president commands the armed forces of this country, to do as he sees fit for defense. The Constitution does not say the president is the Commander in Chief of the entire executive branch. He is not allowed to order anything he pleases - in terms of operations - with other parts of the executive branch (Interior, CIA, Justice, NSA, etc.) without authorization by Congress. The next time a Bush supporter talks glibly about the Commander in Chief, the correct response is to say, "No, you mean the Commander in Chief of the Army and Navy." The full title. So that claims like: The Commander in Chief has the authority to direct the NSA to wiretap without a warrant. Turn into: The Commander in Chief of the Army and Navy has the authority to direct the NSA to wiretap without a warrant. Which clearly indicates a "boundary crossing" of power; and - correctly - sounds wrong as a point of basic logic. Yeah, it's a strict, textual interpretation of the Constitution. Ya gotta problem wid dat?
posted by Quiddity at 1/04/2006 09:59:00 PM
6 comments
You are correct, but the meme is already out the gate. Good luck tracking down and killing it.
Shag has a good point. Let's end feminism, return African Americans to 3/5 status, AND abolish the Air Force.
How about the Marines for that matter?
The argument is simply that the President has the authority, to conduct the actions of war. Wiretapping the communications between declared enemies abroad and enemy spies and American traitors on U.S. soil is a major aspect of waging war against the enemy.
The main reason that Bush's smart opponents are going to let this slide is that they know full well that if they force the issue, and make the Supreme Court settle the matter, the entire FISA system will be thrown out as unconstitutional. When this whole thing broke, I speculated that the real reason that Bush bypassed the FISA court was that he didn't trust the FISA judges -- that one of those judges was secretly talking to the media. That was confirmed by the NYT article -- that one of the FISA judges was one of the sources of the leak. Then, suddenly, out of the blue, James Robertson resigns from the court, giving no reason for his resignation, and refusing to make any comments to the media about it. Sure, the mainstream media tried to spin it as "resigning as a protest", but where's the protest? I suspect that it was more a matter of resigning to avoid indictment or impeachment.
Perhaps now that Robertson is gone from the FISA court, Bush will be more inclined to trust the FISA court with the most important national security matters. Of course, if this is the case, we will never know. Nor should we -- a point that the left will never, in its self-absorbed "right to know" mentality, comprehend.
Well, by the same logic, the various States are allowed their own Militias, as in "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The Air Force as a branch of the armed services originated with the Army, as the Marines with the Navy. Other organizations which originated with the military are still part of the executive branch (e.g. CIA), and clearly the President as the head of the executive branch is the commander-in-chief of these organizations.
As far as FISA's constitutionality, I'm no Scalia or anything, but doesn't the court offer due process as in "
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."
Lefty -- at the time the Constitution was written (and for a long time after), "Well-regulated" referred to the weapons themself, and had the same sense as a "Smith and Wesson .32 Regulation revolver. (1917)" A "well regulated firearm" is a firearm that shoots straight and is reliable. A "well regulated militia" meant an effective militia -- a militia that had effective firearms that functioned properly and knew how to use them.
The drafters were worried that if states were allowed to restrict the rights of citizens to own and maintain their own weapons, the militia -- ("the people") would be ineffective. They wouldn't be properly trained in firearms usage and would not have become familiar with their own weapons. (Remember that in the 18th century, firearms were handmade and very individual. Parts were not interchangable and if you wanted to become a good shot, you had to select a particular gun and practice with it.)
Thus, they guaranteed the right of the general population keep and bear arms, so that the private citizenry -- the Constitutional militia -- would be in the best position to maintain their guns and practice using them.
So the states are not only allowed militias by the Constitution, they are guaranteed militias -- in the sense that in the case of attack or insurrection the militia ("the people") stand ready to rise up and defend themselves, by virtue of the fact that they are guaranteed the right to arm themselves and maintain and practice with their own weapons.
Also, you bring up the 4th amendment, but the 4th amendment does not prohibit warrantless searches. It prohibits warrantless *unreasonable* searches, leaving "reasonable" open to constant interpretation. In our legal tradition, "reasonable" has always been a judgement call made by the judicial branch. It's one of their most important responsibilities.
For instance, you may be compelled by law to present yourself at a courthouse (for example if you are indicted or subpoenaed). Upon arriving at the courthouse, you may be compelled to pass through a metal detector to enter. In other words, you may be punished by law (contempt of court for not appearing) if you fail to submit to a warrantless search of your person and effects, with no probable cause, unsupported by any oath or affirmation.
How can this be legal under the 4th amendment? Quite simply, because in the context of defending the courthouse against physical attack, the search is not unreasonable.
Similarly, the lower courts have held multiple times that using wiretaps to prevent enemy attacks against the United States by intercepting communications between enemies of the United States is not unreasonable.
So the 4th amendment doesn't help your case.
The term of art for military weapons such as cannons, mines, bombs, hand grenades, shoulder-held missile launchers, and suitcase-contained dirty bombs is "ordnance", not "arms."
"arms" was commonly understood in colonial times to mean hand-carried weapons, including swords, knives, rifles and pistols.
As far as pikes (militarily obsolete by colonial times against firearms), pitchforks and rocks, they are certainly viable weapons of last resort -- exectly the sort of weapons that citizens would have to resort to if they could not defend themselves properly with arms.
But then, that was the entire point of the 2nd amendment -- to ensure that when confronted by invasion or insurrection, American citizens would not be facing men armed with firearms with nothing but rocks and pitchforks to defend themselves, because the government had forbid them from bearing proper arms.
There was certainly no expectation that the "people" would be expected to maintain cannons and bombs, and the 4th amendment recognizes no right to "keep ordnance." It recognizes exactly what the founders though the public needed -- the right to defend their lives and property with handheld weapons -- arms.
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