niftydrifty

Dear readers, please note how the previous rebuttal posts to my original argument contain no examples and no links. Instead, there are merely incomplete, impartial, Constitutional quotes, and appeals to our opinions. This is telling. For example, you won’t find mention of Probable Cause in my debate opponent’s remarks. This is because to do so, would be to refute himself – this is misleading through omission, indeed.

It is true that I do like to speak of checks and balances while talking about the Constitution. Why do I like to speak about checks and balances? It is because they are there. To say that there are no checks and balances in the Constitution, because those words do not occur there, would be like saying that a novel doesn’t contain a plot because the word “plot” doesn’t occur in the novel. It would be like saying that a sentence doesn’t have nouns or a verb because those words aren’t literally in the sentence.

The founders didn’t use the words “checks and balances” in the Constitution. Instead, they explained them. It was elsewhere that they used the term when speaking about the Constitution, which is exactly what I have done.

The phrase “checks and balances” was more than likely first used in the United States by John Adams in 1787, in “Defense of the Constitutions of the United States,” which was published just before the Continental Congress first convened. Adams wrote, “We shall learn to prize the checks and balances of a free government, and even those of the modern aristocracies, if we recollect the miseries of Greece which arose from their ignorance of them.” (John Adams: Defence of the Constitutions, 1787)

The title of Federalist Number 51 was “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” (The Federalist #51)

“The Federalist Papers remain today as an excellent reference for anyone who wants to understand the U.S. Constitution.” (Federalist Papers) I recommend that my debate opponent familiarizes himself with them, as well as the Constitution itself.

To say that the three branches of Government should or do operate separately is simply wrong. Separation of Powers exists in the Constitution, but so do Checks and Balances. What is a veto? What about when Congress overrides a veto? What happens when a court strikes down a law? Or when Congress investigates the Executive? Or when the President pardons a criminal? The President may not break the law. The President is not above the law. The most important Check or Balance vis a vis this discussion is impeachment! So, just what is impeachment? Is the Constitution un-Constitutional? Of course not, though my debate opponent would have you believe it. These are checks and balances. And they are indeed explained in the Constitution.

"The executive Power shall be vested in a President of the United States of America," however, Congress does indeed oversee that power.

“The American constitutional system includes a notion known as the Separation of Powers. In this system, several branches of government are created and power is shared between them. At the same time, the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about.” (Constitutional Topic: Checks and Balances - The U.S. Constitution Online - USConstitution.net)

End, Civics lesson. Now back to the debate.

This is an opinion, and a rather uninformed one, at that. If the president's inherent constitutional powers give him the authority to order wiretaps of U.S. citizens even when Congress has passed laws forbidding it, I ask to see any case law supporting this view. As far as I know, there aren’t any.

Inherent authority should not be confused with exclusive authority. The president's exclusive powers are only a portion of his inherent powers. As long as Congress does not infringe on the president's exclusive powers, the will of Congress, as expressed through legislation, overrides any inherent executive authority.

The Executive Power vested in the President is to execute the laws. Not to break them.

To say that FISA is unconstitutional is hyperbole, with no legal backing. Please note that when the DOJ wrote justification for the NSA program, no mention was made of FISA being unconstitutional. (DoJ Letter on NSA Eavesdropping) This is because the DOJ knows better.

FISA unconstitutionality is Pat Roberts’ mantra. (http://www.fas.org/irp/congress/2006...erts020306.pdf) Dear readers, please note that I will not make an issue of Roberts’ temperament, or his partisanship. And although my debate opponent likes to paint those in Congress whom he disagrees with as “partisans” not worth his time (more about this later), I will do so, and with facts.

FISA has been law for more than twenty-five years, and has never been called unconstitutional, until now. And even if it were unconstitutional, the President doesn’t have the power to declare a duly enacted statute unconstitutional. This is the role of the Judiciary. The executive branch is supposed to enforce the law, not break it, or strike it down. Even if the president were to have judicial power, President Bush wisely has never exercised it. To do so would be, ahem, unconstitutional.

More misleading through omission. Those nine words are an excerpt. Here is what the Court of Review actually ruled in that case: "Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith*, that FISA as amended is constitutional because the surveillances it authorizes are reasonable." (Foreign Intelligence Surveillance Court of Review Opinion)

*United States v. United States District Court (Keith), 407 U.S. 297, 322 (1972) (FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code)

According to FISA, Congress has authority to regulate electronic surveillance within the United States. Period. Some targets were in the United States. Those targets require a court order. Therefore, the law was broken. I’d like to see the wording in FISA that says that persons being monitored within the United States do not require a court order.

Ok, good, because he did...

This is the gist of the Administration’s argument. However, it is clear that Congress never intended to give this authority through the AUMF. Furthermore, the wording of the AUMF is “necessary and appropriate,” not “expedient and illegal.”

Tom Daschle, who negotiated the post-9/11 Authorization for Use of Military Force with the White House, says categorically that Congress never intended to give the president the power to perform domestic wiretapping:

“On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.”

What's more, Daschle says that even after that language was agreed on, the White House tried to add the following phrase:

“(a) IN GENERAL — That the President is authorized to use all necessary and appropriate force in the United States and against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001....”

Daschle says:

“This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.”

If the intent of Congress means anything at all, this is pretty good evidence that it didn't intend for the AUMF to give the president power to override FISA within the United States. (Power We Didn't Grant)

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"I admit it. The liberal media were never that powerful, and the whole thing was often used as an excuse by conservatives for conservative failures." - Bill Kristol