Why President's eavesdropping without warrant is unconstitutional

[JDPriestly]

The Constitution Prohibits The President From Eavesdropping Without A Warrant.

The President's Oath of Office as set forth in the Article II, section 1.<8> of the Constitution requires him to "preserve, protect and defend the Constitution of the United States." The Bill of Rights limits and restricts the rights of all branches of the government including the President. The Fourth Amendment states that "The right 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."

The Fourth Amendment clearly applies to the President. The power to write the laws is vested in Congress. U.S. Const., Art. I, section 1. The power to interpret the laws is vested in the judiciary. U.S. Const., Art. III, section 1. The power to enforce the laws, including the power to search and seize citizens or property is an executive power, which is, under Art. II, section 1.<1> of the Constitution vested in the President. Because only the President has the power to search and seize, and because the Fourth Amendment specifically concerns that right, it follows that the Fourth Amendment's restrictions on the conditions under which a search or seizure is lawful applies to the President.

It is my understanding that the President claims that Section 2 of Article II of the Constitution, which appoints him to 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 should be interpreted to entitle him to disregard or set aside the limitations of the Fourth Amendment (and the rest of the Bill of Rights?) during time of war.

The President's interpretation of the Constitution is erroneous. It is a fundamental principle of statutory interpretation applied in courts across the nation on a daily basis that a provision is to be interpreted according to the intent of the legislature or body that enacted it. Legislative intent can be difficult to determine. Therefore courts have developed rules of interpretation to apply when interpreting statutes. One such rule provides that if a legislative body specifically includes limiting or permissive language in one provision but omits it from another similar or related provision, the omission was intentional. The statute is then read or interpreted without the limiting or permissive language.

Applying that rule to the Bill of Rights, the Third Amendment states:

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

This wording of this Amendment is interpreted as demonstrating the intent of those who adopted it to prohibit the housing of a soldier in a private home without the owner's consent in times of peace, but to allow it in time of war, provided that the housing of the soldier is done in a manner that complies with a governing statute. Thus, in drafting and adopting the Bill of Rights, the legislature knew how to exclude the guarantee of a particular right during time of war.

With that in mind, we look at the language of the Fourth Amendment to determine whether, in drafting and adopting it, the legislature similarly intended to permit an exception in time of war. The Fourth Amendment states as follows:

"The right 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."

Clearly, the language of this Fourth Amendment differs from that of the Third Amendment in that the Fourth Amendment does not contain language creating an exception to its provisions for any reason or at any time including during time of war. Under the usual rules of interpretation explained above it must be assumed therefore that the intent of those who adopted this Amendment (it was actually adopted not just by Congress but by the vote of 11 of 14 States <1789>) was to allow no exception to the limitations on the executive imposed by the Fourth Amendment in time of war or for any other reason. Had the legislature intended to allow such an exception in the Fourth Amendment, it would have included language similar to that included in the Amendment that immediately precedes it -- the Third Amendment.

It is true that courts have closed their eyes to violations of the Constitution by previous presidents in times of war. Their mistakes do not justify further violations of that kind. The perspective of history has taught Americans that, constitutional violations that seemed so necessary at a moment of national emergency, such as the internment of innocent Japanese during World War II, were not just cruel and unfair but also unnecessary. Our government pays a price in terms of lost trust and integrity for violations of the Bill of Rights. Later generations have often condemned presidents who, in times of war. succumbed to fear and panic, disregarded their duty under their Oath of Office and exercised powers specifically denied them by the Bill of Rights.

Had the drafters and adopters of the Fourth Amendment wished to give the President the power to search and seize without a warrant issued on probable cause in time of war, they would have said so. They did not. Therefore, the President does not have that power.

[Nickster]

1. Excellent job. Very well written.

[HereSince1628]

2. True, but truth is also this pResident is being protected by partisans

in Congress. The handful of loyal Republicans who are committee chairs control the game by virtue of their positions.

I doubt if anyone can convince a Congressional Chair to hold an honest hearing on the criminal and unconstitutional nature of Bush's domestic spying.