This started out as a comment concerning SAWB's last article, and it grew up. You see, he's more libertarian than anything else. From what he said, I take it that he has a problem with what the Administration in Washington is doing, as many Americans who rightly fear too much government and the Imperial Presidency tend to do. On this, he and I are usually in agreement.
What I wonder about, however, is his line of reasoning. That we gentle Americans ought not get ourselves worked up by the Administration's activities because of Presidents in the past, and their activities concerning our Civil Liberties, have been similar. He quotes a National Review article that draws comparisons to what Clinton did back in 1995, and what Abraham Lincoln did back in 1862.
I wonder how much water these arguments hold every time I hear the right (like the National Review or Townhall) invoke the "well, Clinton did it..." defense on any topic, and especially when they bring up Abraham Lincoln's activity that the Supreme Court later declared violently anti-Constitutional.
When these words come from Libertarians I wonder if I am worked up enough about this Administration. Two quick things: alarm bells are ringing, and I thought we were supposed to at least try not to repeat history.
We'll start with the oldest history, and work our way back.
First thing's first. Define irony. We are actually a nation today because we got fed up with a guy named George violating our civil liberties, among other things.
Second, we’ll touch on this "Lincoln did it, it must be OK" thing. (I'm getting a lot of this from Cornell Law Schools' online US code archives, as they are the folks that the FISA links actually take me to...)
The Constitutional Rights Foundation actually has class on just this topic. From this:
The actual right of habeas corpus is not stated anywhere in the Constitution or the Bill of Rights. The authors of these documents apparently believed that habeas corpus was such a fundamental liberty that it needed no further guarantee in writing. The only mention of the writ of habeas corpus in the Constitution relates to when it can be taken away from judges. In a section limiting the powers of Congress (Art. I, Sec. 9), the Constitution states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in causes of rebellion or invasion of the public safety may require it."
Though SCOTUS didn’t touch this until after the War, they were pretty clear on what they had to say about it in the Ex parte Milligan decision. This from Cornell Law School's archive presenting text of the case itself:
Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.
The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances.
Not a lot of wiggle room there.
A more easy to read definition can be found in Wikipedia.
The Supreme Court decided that the suspension of habeas corpus was unconstitutional because civilian courts were still operating, and the Constitution of the United States only provided for suspension of habeas corpus if these courts are actually forced closed. In essence, the court ruled that military tribunals could not try civilians in areas where civil courts were open, even during wartime."
Well, I reckon that pretty much sums up the problem with 'enemy combatants' as well. Who needs to worry about the Geneva Convention when US law already has precedent?
Now back to the future. First of all, I have severe issues with the damn media not doing their jobby jobs, National Review and otherwise, by not actually reading the law to us. The same can, in interest of balance, be said about the Democrats attacking this Adminstration by saying he's being 'bad' and the Republicans defending the Administration by saying "it's perfectly legal."
I know the law is big reading, fellas, but that's why you get paid.
I have a severe issue with this Administration running rampant concerning our laws. Why folks like me worry about this sort of thing is because the law he is breaking (at least as far as I read it) is this subchapter of the Foregin Intelligence Surveillance Act. (again, I couldn't find any site outside Cornell's very fine LII archives with this text readily available, I'll have to keep looking to replace this, but I'll go with it now.) The law of the land.
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
I guess the Administration's wishing they'd a got that 'Declaration of War' thingy now, 'cause the 'Authorization of Force' bill is looking pretty thin.
As for Clinton’s application of physical searches, executive order linked for us by SAWB, those were a completely different Chapter, and it don't look like what he did (at least in this instance) would be illegal. I would direct you to Chapter 36, Subchapter II “S” 1822.
What this Administration has to worry about now is the penalty for violating FISA:
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
Federal Jurisdiction over the offense if the person committing the violation was an officer of the United States at the time the offense was committed......nice speech last night, by the way. I guess now we get to find the statute that authorized this Administration to act in the ways it did.
But don’t take my word on any of this, (as we saw with the Tocqueville quote) you can view the incredibly extensive Foreign Intelligence Surveilance Act archive by clicking here.