| Banned
May True Debate Winner
Join Date: Aug 2005 Last Online: 03-05-08 06:10 AM Location: We can't stop here this is bat country!
Posts: 20,984
Thanks: 169
Thanked 564 Times in 481 Posts
Lean: Very Conservative Gender: 
Current Mood:  | Re: Niftydrifty's Counter-rebuttal, Part 1
Quote:
Originally Posted by 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. | Probable cause? So you don't believe that speaking to known terrorist agents overseas meets the standard of probable cause? Quote:
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.
| Begin civics lesson, the checks and balances you speak of are guaranteed by the seperations of powers, and you are the one who wishes to violate the checks and balances by granting the legislative branch the right to infringe upon the Presidents executive authority as commander and chief. Quote: |
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.
| What U.S. citizens have had their phones tapped without a warrant? Do you have any proof that this has even occurred? Furthermore; the President has used wiretaps without warrants during wartime since Lincoln the authority to do so is found in his executive authority as commander in chief and when FISA comes into conflict with those exclusive powers of the President it is FISA which should be overidden not the Constitution! According to my opponent the Constitution should be allowed to be violated by legislative decree. Quote: |
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.
| Yes but the the executive holds exclusive authority as Commander and Chief, we are at war, the Congress has granted him the war powers through the AUMF to combat terrorism in compliance with the 1973 war powers resolution, and FISA clearly infringes upon his exclusive authority to effectively exercise those war powers. Quote:
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.
| During times of war FISA clearly infringes upon the Presidents exclusive authority as CINC Quote:
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)
| Thanks for making my case for me, you addition to my original statement is much appreciated because it does nothing but further bolster my case that the FISA court itself has already ruled that the NSA program is reasonable, in accordance with FISA, and Constitutional, thanks again. Here's another exerpt from the In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002): Quote: |
"[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . 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.”
| Game set and match, even the FISA court has ruled that FISA can not infringe upon the Presidents Constitutional power which it clearly does during a time of war. Quote: |
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.
| (1) “Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
Now in the cases we are talking about it is overseas communications which were being targeted not those within the United States it is only after the original targets from overseas were found to be communicating with individuals within the United States that persons in the U.S. were put under surveillance. Quote:
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)
| To prove my case you offer a comment from a partisan source that was made after the fact.
Last edited by Trajan Octavian Titus : 01-11-07 at 06:40 AM.
|