An
In-depth Perspective on the Constitutional Legality of the Executive’s
War Powers Pertaining to the Current NSA Surveillance
by
John Hartman
“We
have long since made clear that a state of war is not a blank check for the
President when it comes to the rights of the Nation’s citizens.”-Justice O’Conner 2004[31].
Table of Contents:
|
Section I |
Introduction |
|
Section II |
Intent of Framers |
|
Section III |
Wording of Constitution |
|
Section IV |
Judicial Review |
|
Section IV Subsection
A |
Legality of NSA Surveillance |
|
Section IV Subsection
B |
Legality of Surveillance of Predominantly Islamic Sites |
|
Section IV Subsection
C |
Presidential Authority Pertaining to Wartime, Checks and Balances and the Law |
|
Section V |
Legislation |
|
Section VI |
Conclusion |
|
Section VII |
Author Opinion and End Notes |
|
Section VIII |
Sources |
Author John Hartman is a political science major at the
I.
Introduction
“The philosophy that constitutional limitations and legal restraints upon official action may be brushed aside upon the plea that good, perchance, may follow, finds no countenance in the American system of government.”-Justice George Sutherland 1936[28].
In the aftermath of the terrorist attacks that took place on
in
This essay is written with full knowledge and awareness that there is a ruthless enemy lurking and waiting to strike the American people. However the way that the current administration is handling these enemies is potentially as dangerous as the enemy they seek to destroy. Though the Bush Administration is striving to protect American lives it is doing so in an unlawful manner when it is unnecessary. The Foreign Intelligence Surveillance Act provides a proper channel for this kind of covert surveillance and its guidelines were ignored.
Laws created by the United States Congress, wording of the
United States Constitution and rulings by the judicial branch have created
clear examples of the kind of surveillance that is allowed within the confines
the United States. The Bush
Administration, though no bad intention, is endangering American civil
liberties and freedoms by not seeking court warrants when surveying Americans. This essay shows that the
Administrations actions are inconsistent with American government in four
areas: the views of the founding fathers, the wording of the Constitution, the
cases seen before the courts and legislation passed by the United States
Congress. The following twenty-some
pages debunk the administrations claims to limitless Executive war time powers
and the legality of warrentless electronic
surveillance. It is my hope that
any doubts about the legality of administrations recent actions are clarified
with this research as to allow these illegal searches to continue undermines
the very values which the
II.
Intent of
the Framers
“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”-Ben Franklin[4].
When the
Illegal searches, quartering of troops and invasions of
privacy took place during the French and Indian War on behalf of the Red Coats
toward the American Colonists who at the time were under British Rule. When the Bill of Rights was added to the
Constitution it was with the idea and sole intent that certain rights belong to
the people and not to the government.
Neither the Constitution nor the Bill of Rights show any indication that
the President, in a time of peace or war, can break the basic laws and
belief-system of the American people as these rights were written into law to
protect the people from government.
In-fact, the Bill of Rights was written to keep the United States
Federal Government from governing in a similar fashion to the way
The belief system of the framers can clearly be seen in the
first great document of our government, the Declaration of Independence, which
lists grievances against the king of
The founding fathers and authors of the Constitution also had
faith in the concept that the rights of the people should be protected. Ben Franklin’s famous quote “They that can give
up essential liberty to obtain a little temporary safety deserve neither
liberty nor safety,” effectively shows how highly the founding
fathers held the idea of liberty, placing it on an even plateau if not above
safety and further implements the idea that they would be unwilling to give the
President full power to manipulate their rights in a time or war[4].
Furthermore, since the framers
intent was to create a form of government with checks and balances, the idea
that during a time of war the President has unwavering and uncheckable
powers goes against the very idea of the Constitution, the intent of the
framers, and is inconsistent with the eightieth century Republicanism principals
which the United States was founded upon.
To prove this, a simple look at the Federalist papers, articles
published in
In the Federalist Paper #10, author
James Madison speaks about the issue with factions in government and talks
about how the new American constitution will be able to control one faction
from doing its will unchecked.
Madison wrote that under the Constitution their would be so many
interests between the states and the different branches of government no sole
faction would be able to gain control of the federal government and be able to
infringe upon the rights of the minority. The Federalist Paper #10 shows that
the founders are against the kind of action that the Bush administration has
taken as Madison wrote “No man is allowed to be a judge in his own cause;
because his interest will certainly bias his judgment…” which
debunks any claim by the administration that its actions are legal as it doesn’t
have the right to decide that[5]. Without the other branches being able to
check the current administration, we have no way of knowing that they are not
abusing their power, and by Madison’s writings we can see clearly that
the executive branch isn’t supposed to go unchecked as he warned about
one branch being its own judge within the Federalist Paper #10.
In the Federalist Paper #57
Madison wrote that the different branches of government “…be the
means of keeping each other in their proper places…” and that “It may be a reflection on
human nature, that such devices should be necessary to control the abuses of
government”[6]. Madison, the
father of our Constitution, further showed that checks and balances are
necessary when he wrote “In framing a government, which is to be
administered by men over men, the great difficulty lies in this: You must first
enable the government to control the governed; and in the next place, oblige it
to control itself,” in this section Madison then went over the advantages
of having different branches of government and the ideas and intentions of each
of the branches[6]. To let a single branch have the
authority the Bush administration is claiming to have, even in a time of war,
goes against the very foundations of the Constitution.
Alexander Hamilton echoed
One of the founding fathers and
our first President George Washington shared these views as well. In his farewell address President
Washington wrote about how checks and balances are essential to protecting
liberty. He wrote that “…liberty is indispensable.
“The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty[9].”
It is Washington’s and the founding fathers idea and
belief that checks and balances will keep public officials from infringing on a
persons liberty and, as it will be proven later in this essay, the Bush
administration bi-passed legislative and judicial checks shows that he has
usurped power that was not intended to the President.
A major argument made by supporters of the administrations
is laid to rest with a look into how highly the founding fathers valued
personal liberty and safety. The
argument that President Bush’s wartime powers allow him to be above the
law and do as he pleases cannot be taken from the same document written and
supported by the before mentioned individuals. Even
In conclusion from the viewpoint
of the founding fathers, the authors of our Constitution, there is no
credibility to the argument that in a time of war they intended for the
President to have uncheckable war powers. In-fact their works, policies, writings,
ideas and examples all show otherwise.
Washington, Franklin, Hamilton and Madison would never endorse the kind
of actions President Bush has taken.
The idea that the Bush administration acted out of its Constitutional boundaries
will further be proven upon examination of the Constitutions wording, the court
cases which define the law through judicial review and laws enacted by Congress
which the President, by law, needs to abide by.
III.
Wording of
the Constitution
“We may be tossed upon an ocean where we can see no land-nor, perhaps, the sun or stars. But there is a chart and a compass for us to study, to consult, and to obey. That chart is the Constitution.”-Daniel Webster 1847[21].
The wording of the United States Constitution is very vague when it comes to the Presidents wartime powers, leaving much room for interpretation on exactly what the framers had in mind. However once someone looks at the Constitution in context as a whole document, linking together the powers given to each of the three branches it is clear that the President is not meant to have the power to be above the laws and be able to do as he pleases with surveillance simply because it is in a time of war, this is not only the logical interpretation but the interpretation of the courts, which will be gone over in detail in section IV of this essay. In his farewell address George Washington warned that we should “resist with care the spirit of innovation upon its principles, however specious the pretexts” about the constitutions powers delegated to the presidency proving that the framers didn’t intend for the presidency to have vast, limitless power[9].
The first three articles of the Constitution clearly set into motion the powers of the three branches of government: the legislative, executive and judicial branches. The wording of the Constitution in Article 1 gives the Legislative branch the power to create the laws, in Article 2 the Executive branch the power to enforce the laws and in Article 3 the Judicial branch the power to interpret the laws. When it comes to war and war powers there is very little wording, however what wording there is shows that the other branches, especially the legislative branch are to be involved in the war making process. In Article 1 of the Constitution it gives Congress the right to declare war, make rules concerning captures, maintain the Navy, makes rules and regulations for land and naval forces, and to organize the army[10]. In Article 2 all that is mentioned about the Presidents so-called war powers is the following “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 the Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment[11].”
When examining the Presidents intended rule in the military
versus the Congress’ rule it is very hard to say exactly where the line
is to be drawn. Edward Greensberg and Benjamin Page, the authors of
Some argue that the surveillance of potential terrorists by
the executive branch of government is the President simply filling his rule of
being commander in chief and that he is simply guarding the citizens of the
country from internal insurrections.
This logic is flawed. The
Constitution’s first Article shows that the Congress should be involved
with military operations to a certain extent as they decide what to do with
prisoners and more importantly “…make Rules for Government and
Regulation of the land and naval forces[10].” The Bush administration and its
supporters claim that the National Security Agency(NSA)
surveillance is legal due to the Presidents war time powers; this is not the
case though because that would mean the NSA would be subject to Congress’
rules and regulations. As mentioned
before Article 1 Section 8 gives the government the right to regulate land and
naval forces, if the NSA is acting under the Presidents wartime authority it is
then subject to the Congress’ regulations[10]. The President, in not informing the
congress of their part in the war on terror overstepped his powers as commander
in chief as he picked the regulations for which the NSA, a land operation in
the war, abides by; not the congress.
On top of that, the NSA surveillance of American citizens without use of
the Foreign Intelligence Surveillance Act court shows that the President
by-passed a regulation that congress has set forth for operations similar to
this, however this will be analyzed in greater detail later in this essay[3]. Some may argue that the NSA does not
fall under the jurisdiction of the congress because its
not a land force in the terms that the framers could have ever conceived and
therefore isn’t confined by the limitations set forth on the president by
the constitution. This logic is
also flawed. In the court case
McCulloch v. Maryland 17 U.S. 316, 401 John Marshall wrote that “Its nature(the constitutions), therefore, requires, that only
its important objects designated, and the minor ingredients which compose those
objects be deduced from the nature of the objects themselves[23].” Since the Supreme Court of the
Furthermore, in the less than ninety words which the
Constitution mentions the Presidents war powers it gives no indication that the
President has the ability to ignore the courts. Article 3 Section 2 of the Constitution
claims “The judicial Power shall extend to all Cases…” not
some cases[13].
Since some of the NSA surveillance did involve calls where an American
citizen was on one end of the line those particular searches should have been
taken through the courts to ensure that the rights of the citizens they are
searching are protected and that the fourth amendment is upheld as well as a
constitutional right to privacy that has been established by the courts(see section IV).
The Bush administrations belief that his war time powers make him above
the courts is inconsistent with the wording of the Constitution and goes boldly
against the fundamental eighteenth century republican ideals and principals
which the
IV. Judicial Review
“The judicial power ought to be distinct from both
the legislative and executive, and independent upon both, that so it may be a
check upon both, as both should be checks upon that.”-John Adams 1776[22].
While the legislative branch has the authority to create the
laws and the executive branch has the sole power to enforce the laws the judicial
branch has been invested with the power to validate and judge the laws. Looking into Supreme and inferior court
rulings it is clear that the president over stepped his authority when allowing
the NSA to look into the calls of American citizens without a court warrant. It
will also be made clear that the checking of radiation outside of mosques and
homes of suspected terrorists is also illegal and considered a fourth amendment
search. It will then be proven
through judicial review that the president is not above the law and that his
position is subject to checks and balances even in cases of national security. The rest of the judicial section of the
essay will look heavily into the actions of the executive branch with forms of
electronic surveillance and show that it is inconsistent with the rulings of
the Supreme Court, the final word when it comes to the constitutionality of any
action taken by our government. The
basis of the courts rulings that are cited for the government surveillance are
derived in part from a 1886 court ruling which set a liberal interpretation of
the fourth amendment the way of the land.
The following quote from the Supreme Court Case Boyd v. United States
116 U.S. 616, 635 bared repeating almost one hundred years later in Silverman
v. The
“It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon[26].”
The complexities of the NSA surveillance and detection of radiation from the homes and places of worship of a certain sector of our society make it hard for many people and officials to clearly pin if the government violated the fourth amendment. The Boyd case and court cases that have been built upon its principals help make that more clear and make the conclusion that the government did violate the rights of its citizens clearer as well. With so much information in this section, it shall be broken down into three distinctive subsections hereafter.
(A)
Legality of NSA Surveillance
The legality of the NSA Surveillance is something that has
been of great discussion in the media, among the administration and within the
congress. In section V of this
essay the Patriot Act and Foreign Intelligence Surveillance Act (FISA) will be gone
over in greater detail as well as how the administration bypassed requirements
set forth in those acts. Since this
section deals with judicial review and the courts it is worth noting that the
Second Circuit court of the
If the cases
that have been settled in our Supreme Court are any indication the answer is:
Yes, the administrations electronic surveillance of American citizens, without
a warrant, is a violation of the fourth amendment. The NSA
surveillance encroaches on a zone of privacy which was initially guaranteed by
the courts in Griswold v. Connecticut 381 U.S. 479 in 1965. In the majority opinion Chief Justice
Douglas wrote about how many of the amendments in our constitution have
penumbras and references to a constitutional right to privacy referring to the
First, Third, Fourth, Fifth and Ninth Amendments and how the courts have ruled
on them individually[19]. The opinion of the court was “We
have had many controversies over these penumbral rights to ‘privacy and
repose.’ These cases bear
witness that the right to privacy… is a legitimate one[19].” Therefore based on prior rulings and the
constitutions wording the right privacy has been established by the courts and
surveillance without a court warrant invades that constitutional right. Another court case, dealing with the
fourth amendment holds more significant ground in debunking the idea that the
current administration did not break the law with their searches: Katz v.
The 1967 Supreme Court ruling in
Katz v.
In Katz v. The
“…the
Government’s
position is that its agents acted in an entirely defensible manner:
They did not begin their electronic surveillance until investigation of the petitioner’s
activities had established a strong probability that he was using the telephone
in question to transmit gambling information to persons in other States, in
violation of federal law. Moreover,
the surveillance was limited, both in scope and
in duration, to the specific purpose of establishing the contents of the petitioner’s
unlawful telephonic communications.
The agents confined their surveillance
to the brief periods during which he used the telephone booth, and they took great care to
overhear only the conversation of the petitioner himself.[15]”
The Governments justification for
surveillance in the Katz case is very similar to its justification in the
current situation with the NSA surveillance. In Katz, the government took steps to
ensure that it only heard information pertaining to the alleged crime(illegal
gambling) and only issued surveillance after they felt they could fairly
conclude their was a strong probability that the man using the phone which they
were putting under surveillance was using it for illegal reasons. In the current NSA surveillance the
government claims that it has taken extraordinary measures to ensure that it
protects a citizen’s fourth amendment rights and only does when there is
a clear link to terrorism. Furthermore
the government asserts that each authorization needs to be reauthorized every
forty-five days[16]. Below is from when Secretary of State
Condoleezza Rice was on MSNBC’s Meet the Press December 18th
2005:
“ ...the president has gone to great lengths to make certain that he is both living under his obligations to protect Americans from another attack but also to protect their civil liberties. And that's why this program is very carefully controlled. It has to be re-authorized every 45 days. People are specially trained to participate in it, and it has been briefed to leadership of the Congress and including the leadership of the Intelligence Committee. So in a time when the war on terrorism is not just one in which people carry on activities outside the country but also activities inside the country, the president is drawing on his constitutional authority to protect the country[16].”
In both cases the government, at face value, seems to have good reason for their searches and in both cases it appears that the government has taken the correct precautionary steps to protect civil liberties. That’s at face value. No matter how much restraint the government took in either case, it is missing one thing: a court warrant and therefore is unconstitutional and unlawful. The following is taken from the Katz majority opinion and applies as much to the current surveillance taking place now as it did in 1967:
“It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end… ‘Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,’ United States v. Jeffers, 342 U.S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment[15]…”
Since their was no neutral
magistrate or judge to decide whether the surveillance by the NSA violated the
rights of the accused it therefore fulfills the definition of a search which
ought to be protected under the Fourth Amendment and the Katz decision by the
court shows that the government broke the law in not getting warrants through
the courts. Some may argue that
there is a key difference between the current NSA surveillance and the Katz
case: the availability of a court warrant.
This is a none issue. The FISA act created a secret court in
which the government could attain a warrant and would likely not have impaired
the speed which the government attained information[3]. In fact, former Secretary of State Colin
Powell even said on ABC’s “This Week” that warrants
wouldn’t be hard to obtain, though he did view Bush’s actions as legal[17]. On
that program he said: “My own judgment is that it didn't seem to me,
anyway, that it would have been that hard to go get the warrants. And even in
the case of an emergency, you go and do it," debunking the argument on
behalf of many who unknowingly claim that the FISA act slows down the process[17]. His
assertion, that even in the case of an emergency a warrant can be obtained show
how fast the process actually is and even further implements that, similar to
Katz, the government had the ability to get a warrant but chose not to opting
to believe that it can skip the judicial process altogether. The Katz case, therefore, set the standard
that electronic surveillance applies to the fourth amendment, and proves that
the government broke the law.
Even though Katz v. The
With all the previous rulings of
the court which are based off the ideas and laws set forth from our
constitution the executive branches various electronic searches of Americans is
clearly unconstitutional and should be stopped immediately unless a neutral
court is involved in the process.
Since the courts rule on the Constitution and it’s the supreme law
of the land, any actions or laws contrary to its meaning is unallowable within
the
(B) Legality of Surveillance of
Predominately Islamic Sites for Radiation
Shortly after the government’s
NSA surveillance program was leaked to the media and the public by the New York
Times, the media started reporting on another disturbing invasion of privacy
that the federal government has allowed since 2002, surveillance of
predominately Muslim sites for radiation to see if those individuals are
attempting to create bombs. Though
a noble cause, the lack of a warrant shows without a doubt that the federal
government is breaking the fourth amendment.
Officials on behalf of the government claimed
"You do not need to be on anyone's property to get radiation levels, how
close you need to be depends on search techniques, the equipment used and the substance
you are looking for,” as justification for the legality of the searches[24]. This justification does not hold once
the 2001 Supreme Court Case Kyllo v. The
A spokesperson for the Justice Department Brian Roehrkasse offered the Associated Press a more convincing
argument that attempted to pull the governments surveillance for radiation
outside the protections established by the Kyllo
case. Roehrkasse,
in a statement to the Associated Press, said that it was the stance of the
government that Kyllo didn’t refer to air
monitoring, an interesting hypothesis, though one unlikely to hold in court[25]. A
more in-depth look into the decision of Kyllo will
provide why Roehrkasse’s interesting hypothesis
isn’t valid.
Kyllo was growing illegal drugs in the basement of his house and police who suspected this used thermal imagining goggles to notice that heat was radiating off part of his household was consistent with the amount of heat that would emanate from the kind of lamps associated with marijuana growth. The police obtaining this information than got a warrant using this information from their initial electronic surveillance. The Supreme Court ruled that the surveillance which was used to get the warrant in the first place was an unconstitutional search for the reason that the government, as stated above, used technology not in the general public use to obtain information about someone’s household that previously would not have been known[18]. The reason why Roehrkasse’s defense holds no validity is the writing within the majority opinion of the court which explicitly states the following:
“The
Court rejects the Governments argument that the thermal imagining must be upheld because it detected only heat radiating
from the homes external surface. Such
a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device
in question picked up only sound waves that reached
the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing
technology including imaging
technology that could discern all human activity in the home[18].”
The above exert from Kyllo v. The
(C) Presidential Authority Pertaining to Wartime,
Checks and Balances and the Law
Though earlier in the essay the intentions of the framers when it comes to the Presidents war powers has been gone over in depth, for many that holds little to no importance as it doesn’t take much to omit quotations that aren’t favorable to ones cause and use suave wording to cover up objections presented. That, on top of the wording of the constitution being vague about the Presidents supposed war time powers leave many to conclude that the President has acted within his “War Powers”. It in-fact is almost the sole defense that was used by Condoleezza Rice when she appeared on Meet the Press[16]. Though, the works and writings of the framers is valid for many, nothing refutes the idea of the President having almost limitless wartime powers more than the rulings of the Supreme Court. One sentence from the Supreme Court’s majority opinion in Hamdi v. Rumsfeld (2004) refutes all the arguments proposed by the current administration on its use of surveillance under the Presidents constitutional war time powers: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens[31].” The before mentioned quote by itself refutes the executive branches claims in the NSA surveillance entirely.
Various rulings in the Supreme and inferior courts show that
the president has expanded authority when it comes to issues pertaining to war
but that those authorities are not out of the reach of constitutional checks
and balances and that they certainly are not limitless. In Greensberg
and Page’s text
“For
example, the Sixth Circuit Court ruled in 2002 that the government could not hold
deportation hearings for Middle Eastern men behind closed doors. Additionally,
two federal appeals courts separately ruled in 2003 that American citizens
arrested on
As mentioned earlier the Supreme Court ruled that the president doesn’t get to do whatever he wants simply because America is at war; in the same court case, one of the two that Greensberg and Page called a stunning defeat, the court ruled various other limits on the Presidents wartime powers. Most importantly the court affirmed checks and balances several times throughout the majority opinion:
“Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake” and “Moreover, as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat[31].”
The court upholds the idea of checks and balances found throughout the United States Constitution as something found even during wartime and clearly shows without a doubt that the president cannot go unchecked.
These questions on the Presidents wartime authority were clearly answered because this case involved the military holding an American citizen as a military combatant and not allowing him access to due process of law. The courts ruled that that action is unconstitutional and made several remarks on the president’s wartime powers which now reside as the law of the land due to the power of the Supreme Court to interpret and judge the constitution. The recent court cases mentioned by Greensberg and Page are not the only court cases which limit the president’s authority to do as he pleases.
After the civil war, a case came before the Supreme Court based on martial law. Lambdin P. Milligan, a citizen of a Union state was arrested by Union solders and put to military trial and sentenced to death. The Supreme Court heard the case and made several important rulings about martial law, the military and executive power. Justice Davis wrote how important the court decision is on this topic claiming “…it involves the very framework of the government and the fundamental principles of American liberty[33].” The decision by the Supreme Court in this case made many observations and rulings that apply directly to the Presidents so called “war powers.” It ruled that “..it is the birthright of every American citizen when charged with a crime, to be tried and punished according to the law” limiting the President in its authority to do as it pleases during a time of war as he cannot hold citizens without pressing charges, something that had to be reaffirmed in Hamdi v. Rumsfeld over one hundred and fifty years later[33]. Perhaps the strongest statement against the Presidents wartime powers is the following:
“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances[33].”
The Supreme Courts acknowledgement of “equally in war and in peace” does detrimental damage to the claim that the President has such a broad authority because of his war time powers, because the courts have long ruled that that is not the case[33]. In-fact between the rulings of Ex Parte Milligan and Hamdi v. Rumsfeld the courts show that the Presidents war time powers are not unlimited. President Bush’s assertion that he’s allowed to skip getting a warrant as provided by the FISA act in his authorized NSA surveillance clearly violates a citizens constitutional rights, and since that assertion is derived from a false belief in constitutional sphere which his war powers reside the president is in error. In light of the courts rulings in Ex Parte Milligan and Hamdi v. Rumsfeld the Bush administration is subject to the laws and the Constitution as much now as he and his administration was prior to 9/11 and Congress’ authorization to use military force. Both of these court cases are of extreme importance for they both take place during a time of national crisis and/or emergency. Ex Parte Milligan takes place after one of, if not the most brutal war in American history: The Civil War. Hamdi v. Rumsfeld occurs a few years after 9/11/2001 and shows that the courts and laws still limit the President even in a time of military action.
It is highly unlikely that President Bush has any malicious
intent with his authorized surveillance but checks and balances insure
“This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate[33].”
The above exert is largely the reason for the courts decision not to allow the President such a broad authority. This civil war case and the more recent cases that have proven to be obstacles for the Bush administration are not the only Supreme Court cases in which the power of the executive is challenged. Another case where the President’s authority was challenged was in Nixon v. The United States, 418 U.S. 683 where President Nixon claimed that his executive privilege allowed him to keep information from a court order. The Supreme Court rejected this writing “…we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege[34].” The decision in the Nixon case, though not as relevant as some of the before mentioned cases, significantly limited the Presidents powers in even times when national security is possibly at risk.
From the judicial point of view, the Bush administration clearly has went into gray areas concerning its surveillance which possibly trample on the rights of our citizens and their defense that the President’s wartime powers allow this have very little if any validity thanks to the rulings in the Supreme Court as recent as 2004 and as long standing as Civil War Reconstruction. It bears repeating one more time, even in a time of war the President is not above the law.
V. Legislation
“A law is valuable, not because it is law, but because there is right in it”-Henry Ward Beecher 1858[30].
The laws of the
Any law in contradiction of the Constitution cannot be
considered a valid law as established by the Supreme Court in Marbury v.
An important thing to note about
the Foreign Intelligence Surveillance Act, USA Patriot Act, War Powers Act and
Intelligence Reform and Terrorism Prevention Act is that none
of them over shadow or cancel out the other, unless it is specifically
stated in that legislation. These
laws together, with various others, make up the rules and regulations which
searches can be conducted and should not be viewed in conflict with each
other. For example, the Foreign
Intelligence and Surveillance Act was amended by the Intelligence Reform and
Terrorism Prevention Act to include provisions to help find and eliminate Lone
Wolf Terrorists which helps keep the FISA act up to date and be a better tool
to prevent terrorism in changing times[35]. It is important to note that the Foreign
Intelligence Surveillance Act was amended as recent as 2004 to show that it is
in-fact still a current law, otherwise its provisions would have been ignored
and eclipsed by new laws instead of amending it.
As mentioned earlier in various
parts of this essay FISA sets up a secret court which has the ability to issue
warrants against people who are involved in terrorist activity against the government[3].
FISA does set up certain
provisions for when the executive branch may do warrantless
searches. However these exceptions
really do not help the administration as they were violated. TITLE 50 CHAPTER 36 SUBCHAPTER I § 1811 allows the President to authorize warrantless surveillance for up to fifteen days after a
declared war[36].
Another provision of the act allows the President to gain warrantless surveillance for up to one year if the attorney
general certifies by oath that the government limits the searches so that
“there is no
substantial likelihood that the surveillance will acquire the contents of any
communication to which a United States person is a party,” along with
other technical provisions[37].
The admission
by the Bush administration that American citizens have been under surveillance,
no matter how limited in scope, goes against TITLE 50 CHAPTER 36 SUBCHAPTER I § 1802(B) of the
Foreign Intelligence and Surveillance Act and therefore makes it
illegal[37].
The Bush administration has taken the stance that it doesn’t matter if American citizens are under surveillance or not because it is acting within scope of his war powers, which was debunked in section IV. The other defense of the administration is that the FISA act was formed to combat agents of foreign powers and that since these terrorists aren’t acting on behalf of a foreign power the Foreign Intelligence and Surveillance Act has little to no validity and is a mute point when it comes to the current NSA surveillance. When Secretary of State Condoleezza Rice appeared on Meet the Press she downed the importance of the FISA act claiming “…the circumstances of FISA relate to rather more stable targets, people who are principally acting on behalf of governments[16].” Her point has very little validly though, for FISA was amended in 2004 by the Intelligence Reform and Terrorism Prevention Act to allow the government to track lone wolf terrorists who have no affiliation to any group or country[35]. The provision allowing the government to have the authority that Condoleezza Rice suggests that it doesn’t under the current act is found here: TITLE 50 CHAPTER 36 SUBCHAPTER § 1801 (b)(1)(C) as subsection “C” was added in 2004 thanks to the Intelligence Reform and Terrorism Prevention Act. The previous mentioned subsection amends the meaning of the word “foreign power” in the act to include people who engage in international terrorism. Therefore, whenever the FISA act mentions foreign power, it has an expanded definition to include people working for terrorist groups[39].
The USA Patriot Act and other acts
of congress do not give the President the kind of authority that he claims that
they do. No where in the Patriot
Act is warrantless surveillance condoned or
allowed. It does give the President
expanded ability but is a law that stands as an equal to the Foreign
Intelligence Surveillance Act as both cover different areas. Though it appears the executive branch
did not break any of the provisions of the Patriot Act every indication shows
that it did break provisions of the Foreign Intelligence Surveillance Act by
surveying American citizens without a court warrant.
In conclusion Perhaps
the Bush administrations searches go against the laws set forth by congress,
specifically the Foreign Intelligence Surveillance Act. Pennsylvania Republican Senator Arlen
Specter may have said it best “It's inexcusable to have spying on
people in the
VI. Conclusion
“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”-Justice Louis D. Brandeis 1928[29].
After an in-depth analysis of the intentions of the framers of the constitution, the constitutions wording, judicial review and legislation passed through congress it is clear that the current administration’s actions are without a doubt unlawful. From John Jay to George Washington the framers of our Constitution were adamant that checks and balances be found in government and that the powers of the branches be restricted to that specific branch. Furthermore the Constitution doesn’t set forth clear war powers, as suggested by the Bush administration, but gives each branch of government its own respective war duties showing that both the legislature and the president have their part in the decision making of regulations and actions taken by the government. The Constitution also limits the government in its ability to search individuals without a warrant. The courts have upheld a liberal definition of the fourth amendment which has been upheld in various court cases, and no doubt shows that the government’s surveillance is an encroachment of the fourth amendment. The courts have also struck down the idea of limitless presidential wartime powers various times dating back as far as the days of the American Civil War. Finally the laws made by Congress, specifically the Foreign Intelligence Surveillance Act, set forth limitations in the Executives ability to search American citizens with electronic surveillance. The research and details entertained in these four areas (founding fathers, constitutional wording, judicial review, legislation) prove that the Bush administration, without a doubt, acted outside of its Constitutional authority.
VII. Author Opinion
and End Notes
“He that would make his own liberty secure must guard
even his enemy from oppression; for if he violates this duty he establishes a
precedent that will reach to himself.”-Thomas
Paine[40].
This article on the legality of
the Bush administrations NSA surveillance started after a political debate with
my uncle on Christmas eve. I felt so strongly about my stance that
I asked if he would allow me to write a written rebuttal as he had initially
won the debate. My strong opinions
about the government upholding certain rights comes from a strong fear of
government that was instilled in me when I was pulled over by the Pittsburgh
police when I was seventeen years old and accused of being a heroin addict and
dealer. The police violated many of
my Constitutional rights and searched me and my car, threatening me with what
would happen if I did not sign them permission to search my car. In the end, the police found nothing on
me or in my car as they were in error.
The police observed me asking someone for directions, unknowingly, I
asked a drug dealer for directions, and for all intents and purposes it looked
like I was in business with this gentleman. I still cringe when I think of the
methods the local police used on me, and cringe even more when I think that our
federal government has the ability to do the same thing without any protections
to the liberties and freedoms that men and women died for in the American
Revolution.
I completely agree with President
Bush when he says that there is an enemy out their, and that that enemy is
waiting to strike defeat everything that is American at any cost. The thing is, when we compromise our
values and compromise the protections to liberty and other fundamentals of our
government we are letting the terrorists win, as they are changing
The laws of our legislature make
many justified compromises to help the executive catch terrorists and protect
the lives of American citizens. These
laws should be followed or else we are doomed to have history repeat
itself. It is not to long ago that
the federal government was surveying civil rights activists who protested
within their constitutional rights, without proper checks and balances; how are
we to ensure that the government, with the claim of catching terrorists, will
not spy on political enemies or members of our countries minority. I feel it bares repeating that its not
that I do not trust the Bush administration because of who runs it, its that I have a distrust for government without checks and
balances.
After over twenty-five hours of
researching and writing this essay I have found that my convictions and ideas
are strongly supported not only by our laws, the courts rulings and the
constitution, but by our founding fathers.
My issue with the
To repeat Patrick Henry
“Give me liberty or give me death.”
VIII. Sources:
[1]
Declaration of
[2] TITLE 50 CHAPTER 36 SUBCHAPTER I § 1802 (A)
[3] TITLE 50 CHAPTER 36 SUBCHAPTER I § 1803
[4] Quote
by Ben Franklin <http://www.quotationspage.com/quotes/Benjamin_Franklin/31>
[5]
Federalist Paper #10 by James Madison
[6]
Federalist Paper #51 by James Madison
[7]
Federalist Paper #78 by Alexander Hamilton
[8]
[9] George
Washington’s Farewell Address
[10]
[11]
[12]
[13]
[14]
[15] Katz v.
[16] MSNBC Meet the Press December
18th. Guest Secretary of
State Condoleezza Rice. <http://www.msnbc.msn.com/id/10479765/page/3/>
[17] “Powell OK with NSA Eavesdropping” by Associated Press <http://www.foxnews.com/story/0,2933,179733,00.html>
[18] Kyllo v.
[19] Griswold v.
[20] Marbury v. Madison 5 U.S. 137 (1803) Opinion delivered by Justice John Marshall
[21] Daniel Webster, Speech,
[22] John Adams, Thoughts on Government, 1776, in Works of John Adams 4:198 (Charles Francis Adams ed. 1851): This quote was taken from page 377 of The Oxford Dictionary of American Legal Quotations by Fred Shapiro.
[23] McCulloch v.
[24] Officials: Muslim sites subject to secret monitoring for radiation. CNN. By Kevin Bohn and Jeanne Meserve. December 24th 2005. <http://www.cnn.com/2005/US/12/23/nuke.monitoring/index.html>
[25] FBI Monitored Muslim Sites for
Radiation. AP.
Saturday, December 24, 2005. <http://www.foxnews.com/story/0,2933,179630,00.html>
[26] Boyd v. United States 116 U.S. 616, 635 (1886) Majority Opinion written by J. Bradley
[27] Silverman v.
[28] Jones v. SEC, 298
[29] Dissenting Opinion from Jones v. SEC, 298
[30] Henry Ward Beecher, Life Thoughts Page 206 (1858): This quote was taken from page 294 of The Oxford Dictionary of American Legal Quotations by Fred Shapiro.
[31] Hamdi v. Rumsfeld (2004) Opinion delivered by Justice O’Connor
[32]
[33] Ex Parte Milligan 71
[34]
[35] <http://en.wikipedia.org/wiki/Patriot_act>
[36] TITLE 50
CHAPTER 36 SUBCHAPTER I § 1811
[37] TITLE 50
CHAPTER 36 SUBCHAPTER I § 1802 (B)
[38] Bush defends NSA spying program. CNN. January 1st 2006.
<http://www.cnn.com/2006/POLITICS/01/01/nsa.spying/index.html?section=cnn_latest>
[39] TITLE 50 CHAPTER 36 SUBCHAPTER § 1801 (b)(1)(C)
[40] Quote by Thomas Paine < http://www.quotationspage.com/quote/3508.html>
[41] Patrick Henry.
Speech: Give Me