Wire tapping the Constitution

Did the President of the United States of America violate the Constitution by authorizing eavesdropping on international phone calls and emails, of US citizens, without a judicial warrant? Interesting question. I've been pondering it myself for the last week or so. Since there isn't a snowball's chance in hell of getting any kind straight answer from the media, I've decided to investigate the matter myself, using the US Constitution.

You are not reading a post that has been thought out beforehand, I have not yet arrived at a position, so think of this post as a play by play of my research on this subject.

The authority conferred to the President is outlined in Article II.

Section 1 outlines the election, installation and removal. That last part is what rabid democrats are salivating over at the moment, with the same perverted glee Republicans had while Bill Clinton held the post.

There is one small part of Section 1 that might apply to our discussion here, so I will include it now, in case we need it. It's the President's oath of office.

Before he enter on the execution of his office, he shall take the following oath or affirmation:--'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 reason I think this might pertain to the circumstances is the part about his promise to faithfully execute the office in order to protect and defend the Constitution. That sentence alone would be enough for any left-leaning liberal Bush-hater to begin impeachment proceedings. Since what Bush is doing, in their opinion, is destroying the Constitution, not protecting it. But there is another way to interpret it. Should America become a nuclear wasteland following suitcase nukes going off in New York City, Los Angeles, San Francisco, Miami, Chicago, Philadelphia, Washington, etc. one could argue, by not doing everything possible to prevent the destruction of America, he is not protecting the country, and thereby not protecting the Constitution.

[Editor's note: It could be argued that protecting the country is not synonymous with protecting the Constitution; if the Founders had intended that meaning, they would have said "defend the Constitution and the United States". The Constitution is the law of the land that dictates what powers the federal government has (leaving the rest to the people and/or the states), and that is what the President should be upholding and defending. That they gave Congress the responsibility to go to war, which back in the day meant war to defend the country (not engage in foreign military actions against those who did not present a direct threat to the US), seems to me they did not intend for the decision to go to one person, the head of the executive branch. Part of the reason for the 2nd amendment is to allow the people the ability to overthrow the US government if/when it reneged on its Constitutional duty - to believe that the president has a duty to protect and defend the country from direct or imagined/potential/improbable threats would mean he could suspend the 2nd amendment (or any other part of the Constitution) if he felt it was warranted. This would seem to be a clear contradiction to the intent of the Founders. But ignoring all that, the modern liberals have no leg (or any other appendage) to stand on when it comes to complaining that the government violates the Constitution, since 99.9% of their political beliefs entail violations when enacted. And many are in existence today.]

Let's continue, shall we?

[Editor's note: Yes, sorry, you can continue. I will try not to interrupt again.]

Article II Section 2 outlines the President's power.

The first paragraph appears to be the only pertinent part for this discussion.

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; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Money line: commander in chief.

Now let's check on what Congress has to do with this mess.

Article 1 Section 8 comes into play.

It's where the constitution EXTREMELY LIMITS CONGRESS' AUTHORITY TO AN ENUMERATED LIST OF POWERS, among them:

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of
the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according
to the discipline prescribed by Congress;

I must admit, I'm a tad surprised. I thought Congress was strictly limited to declaring war and funding the armed services, but it does appear they have a little more game after all.

I have had the debate once or twice with my editor as to what exactly constitutes a declaration of war. Does this require that Congress actually use the phrase "declaration of war", or is a joint resolution authorizing the President to use force sufficient? Personally I don't see a difference, since, if any institution has the legal authority to settle this issue, it would be Congress itself. Seeing as Congress holds the purse strings, if they feel the President is acting beyond the scope of his authority, they can just pull the plug on the credit card. Since they haven't, I take that as proof they are comfortable (at least on record) as feeling a resolution sufficient.

[Editor's note: Just a quick interruption, but I feel there is a difference. Although perhaps not technically violating the letter of the law, Congress not explicitly declaring war but leaving the option to the President would seem to violate the intent of the law. An abrogation of their responsibility, and when it comes to declaring war, the buck should stop with them.]

But this still does not bring us an answer. So lets turn to what the Constitution says about the judiciary and warrants. Article III.

Which sheds no light what so ever on the subject at hand. So I now take my search to the Amendments.

My money is on 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 persons or things to be seized.

Now I must admit, this does appear to be pretty cut and dry. The wording is, perhaps, a bit out of whack. First it says privacy shall not be violated, then it throws in the term warrant afterwards. Which I take to mean, warrants are constitutional.

Amendment V has some interesting text too.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,
except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for
public use, without just compensation.

On first reading, it appears to say that no one can be held with out an indictment, except in cases concerning armed services, while the armed services are in combat, which they are, see the reference above about Congress. But it appears to refer to those in service to America, rather than foes against it. So, we can hold American soldiers in prison with out an indictment, provided they are fighting a war? I guess this is why lawyers get paid so much. They're trained to make sense of this stuff.

So next my search has taken me to the additional amendments. And what a hit I get with number XI.

Amendment XI

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

So, judicial authority does not extend to foreigners. Now that is interesting, because not only does it apply to the subject at hand, it says a truckload about Guantanomo Bay detainees. It also cuts exactly one half of the argument against this particular case in spying, that is, the federal government is not bound by the law when dealing with foreigners. To me that means the foreign persons, on the other end of the international calls, have no legal recourse.

Well, that seems to be about the extent of what the Constitution says on the matter. Let's sum up what we have.

The President must swear an oath that states he will execute his office, to the best of his ability, to protect and defend the Constitution. To me that implies he is limited to the authority of said office, and can not take action beyond the scope of his stated powers. He is also the commander and chief, of the armed services, which means he is the top general. The buck, truly stops with him during war. Congress has the authority to declare war, and apparently has done so to its own satisfaction. The judiciary doesn't seem to have much at all to do with this, from a constitutional standpoint, other than interpret what we've already covered. Americans can not be searched without a warrant, but no such immunity is extended to foreigners.

From the evidence presented so far, it appears the President does not have the authority to do so. Yet, not only has he done so, no FBI agents are raiding the White House to haul him off, so there must be more. My guess is in Supreme Court precedents.

Historically, both Congress and the Courts have given commanders in chief a wide berth during war time. In 1776, the Continental Congress pretty much made George Washington King of America. They granted him unlimited powers to do whatever he deemed necessary to keep the cause alive. George Washington is the American I admire most. He responded in a letter that Congress need not worry, he would more than happy to return the authority to Congress as soon as possible, because he didn't want it any longer than necessary. What a guy. Willingly giving up the crown, and at the soonest possible moment, which he did. They say absolute power corrupts absolutely. Not if you have enough class. Washington had that much class, and then some.

During the Civil War, Abraham Lincoln played fast and loose with Presidential power. Among other things, he suspended the right of Habeas Corpus, which Wikipedia tells us is the right to not be arrested and held without a judicial decree. For example, the police can pick you up, but they can only hold you if a judge says so, a preliminary hearing. At that point, they must either prove something, or else let you go. Quite an important civil right to have upsurped by an elected President. He also deported an Ohio candidate for Governor whom he considered seditious, to the Confederacy (who didn't want him either, and deported him to Canada) because of statements that Lincoln was forcing the Civil War on America in order to create a dictatorship.

Probably the most famous use of extraordinary Presidential power during war has to be Franklin Delano Roosevelt's internment of Japanese (and Italian and German) Americans in concentration camps. In Korematsu v. United States, 323 U.S. 214, the Supreme Court upheld the argument that the need to protect against espionage outweighed Korematsu's individual rights, and the rights of Americans of Japanese descent. Justice Hugo Black argued that race-based compulsory exclusion, though constitutionally suspect, was justified by the government's assertion of wartime necessity. In other words, precedent that during war, the President is allowed extraordinary powers

In 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA), signed by then President Jimmy Carter, which authorizes just these type of actions, albeit with restrictions. So, regardless of the Constitution, both Congress and the Supreme Court have sided with expanding Presidential powers when it comes to matters of national security.

So in conclusion, our little trip through the Constitution sheds almost no light on the subject matter at hand. It appears to be unconstitutional, but at the same time, it appears both Congress and the Supreme Court really don't give a rat's ass. So, unless I uncover additional information, I'd have to say, Bush has the authority. We shall see, as the issue unfolds.

[Editor's note: As an interesting (and probably depressing) exercise, pick a random law/regulation from the Codes, and see if the following sentence from the author applies: It appears to be unconstitutional, but at the same time, it appears both Congress and the Supreme Court really don't give a rat's ass.
I suppose one could have the view: What's one more grain of sand on the pile? One could even have the view: Of all the bad things that are currently being done, this doesn't make the top 1000 list. But I don't know if that really justifies it. Sorry, I think I interrupted too much.]

Author's note: I agree the entire subject is depressing. My little jaunt through the Constitution was to compare and contrast the facts of the Constitution with the realities of today's political world. I was not expecting some grand epiphany which would explain everything. As a matter of fact, I would have been surprised to find one. And I do agree with the Editor's opinion on modern politician's respect for rules. If anyone believes any politician* and/or judge has the slightest respect for the limits of the Constitution, I suggest they discuss the matter with Kelo.

Allow me one last statement: whether Bush broke the law or not, whether the Constitution allows the executive branch any of the authority it has used, or not, it really burns my ass to hear the politicians on the other side of the aisle rise up with such self righteous indignation when I know damn well, if the shoe were on the other foot, they'd be racing to do the exact same thing. God I hate hypocrites.

* - except Ron Paul (editor's addendum)