Sunday, December 18, 2005

The Constitution says No (so does the law)

Maybe I'm more worked up about the whole secret surveillance of American citizens than others because I actually make trans-Atlantic calls on a regular basis. Ms. TfK is in Luxembourg for a short stint, she has family in Europe, and we both make regular calls to people across the Atlantic. Neither of us has anything to do with al Qaeda, but that's scant protection from the Peeping Tom in Chief.

From, via stranger fruit
Bush has claimed that he acted under his authority as commander in chief. That's Article 2, section 2, for those keeping score at home. That simply states that "The president shall be commander in chief of the army and navy of the United States; and of the militias of the several states, when called into the actual service of the United States." A right to secretly spy on citizens doesn't even enter the penumbra of that phrase (though the Air Force does).
But maybe you could spin the NSA into the penumbra right next to the Air Force, and he has the right to order them to do whatever he wants, right?

Not so much. Article 1, section 8 grants Congress the power "to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions," and also "to provide for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States." That split is entirely unsurprising, since it gives the President power to execute the law, and Congress power to make it. The president's actions are still bound by legislation, and the legislation forbids exactly what he did. It forbade those actions because a previous president tried the same thing when our enemy had nuclear weapons aimed at us, and the Congress didn't like it.

Does anything else bind the President's actions, and those of Congress? Can anything trump the original text of the Constitution?

Of course, a constitutional amendment. The fourth one that passed says "The rights 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."

That provision trumps the President's powers as commander in chief, and Congress's power to discipline the military.

What would the founders have said about Bush? Publius (aka Alexander Hamilton) quotes approvingly from Blackstone in Federalist 84:
To bereave a man of life … or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to gaol, where his sufferings are unknown and forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.
Hamilton's emphasis. This is by way of arguing that the guarantee of habeas corpus is sufficient to encompass much of what we see in the Bill of Rights, and in this instance, that's probably true. It implies a presentation of evidence to a competent authority before seizing property or life. By any standard, the black sites, secret prisons, torture, and secret surveillance of the Bush administration fall within the realm of what Blackstone (and Hamilton through him) decries as despotism and tyranny.

It's never worth forgetting that one of the complaints listed in the Declaration of Independence is that King George "has affected to render the Military independent of and superior to the Civil power." This is exactly and precisely what the "commander in chief" defense would do, and it's as unacceptable now as it was then.

Once upon a time, Josh Marshall proposed the Bill Clinton test, that before you decry something Bush does (Republicans: read "decry" as "praise"), you should ask what you'd say if Bill Clinton did it.

I think Republicans would be demanding impeachment if Clinton tried this. It's the only intellectually honest thing to say when the President proudly admits he broke the law and intends to keep doing it. Instapundit and LGF are united in their desire to make the New York Times pay for telling us about the criminal acts of the President, but don't seem too worried about their civil liberties.

For the slow-witted (and I include Instapundit in that category), the issue is not even the Constitutional issue I raised here. That's broader, but barely relevant. We have a government of limited powers. The president's authority is bounded by laws. If a law forbids him from doing something, he can't do it. And the law forbids him from doing what he did. It really is that simple. As a law professor, I had hoped Insty would realize at least that much.

He makes a big deal about having taught a FISA class once upon a time, but somehow thinks there's no legal remedy for illegal taps, despite the fact that FISA has specific sanctions within it. I'm not a lawyer, and I could figure that much out.

Sins Of My Father” by Tom Waits from the album Real Gone (2004, 10:36).

And no, Capitol Hill Blue is not a credible source.