Co-worker's "Constitutional" justification for NSA spying - help me reply:

[Skip Intro]

Please help me reply to this:

The NSA actions are legal but to prevent activists judges from trying to hijack the executive constitutional autority to do these activities. Executive authority is granted under Article II Section II (Comander-in-chief) and the legisilative authority under Article I Section VIII (Necessary & Proper Clause) that has historically given the government the right to conduct foreign and domestic intellegence gathering in national security circumstances (non-law enforcement).

The Fourth amendment protections against searches and seizures is not triggered because it is not a law enforcement activity; therefore, no warrant is necessary. The historic constitutional perspective on this was that this in conjuction with presidential authority spelled out in Article II Section II of the constitution giving the president the position of Commander-in-chief gives the executive intellegence gathering powers, both foreign and domestic.

In fact, Congress tried to limit those historically acknowledged powers by passing the FISA Act; however, the constitutional authority of the executive branch of government is not curtailed by legislation. The Constitution is the supreme law of the land (Article VI) and legislative acts are inferior to Consitutional mandates and authorities. Example is in William Jefferson Clinton v. City of New York (1998) the Supreme Court ruled in a 6 to 3 vote that the US Congress cannot give power to the President to veto line items in a bill. The powers granted in the consitution to each branch of government can only be changed by an amendment to the Constitution; therefore, the FISA Act is unconsitutional.

That is the legal argument. Now an activist court can surely find a way around this. To make it clear, you can amend the FISA Act to allow this activity and avoid a legal dispute while our country needs this intellegence to fight the war on terror.

[Avalux]

1. There is no war. Article II Section II does not apply.

When he says this isn't a law enforcement activity and therefore the fourth Amendment doesn't apply, it's bullshit. Ask this person for legal precendence on that one.

FISA is the law of the land. Collecting personal data in such a manner without a warrant is illegal - period. It's also illegal according to FCC laws.

[Davis_X_Machina]

2. Go over to Greg Greenwald's blog...

..he has addressed these legal argument in exhaustive detail.

[Nickster]

5. Yes, excellent advice. n/t

[heart of darkness]

6. I was going to post, but Glenn has detailed everything much better

than I would have, even if I had the time.

EDIT: I would add that the original poster should read the Youngstown case that is clearly on point here with regard to presidential power.

The Clinton case cited by your freeper has little to do with the issue. The holding in that case was simply that congress can't give it legislative powers to the executive branch. In fact, one could argue the president has seized legislative powers in this case by arbitrarily deciding that he will spy on Americans without express consent (and even with consent it would be illegal under the 4th amendment).

[Clovis Sangrail]

7. great site thanks

/nt

[Clovis Sangrail]

3. demand to know exactly what part

of Article II Section II and the Fourth.

All II II provides that he is commander in chief of the Army and Navy (thank god not the Airforce :eyes: )
and the Fourth says NOTHING about only being a protection against law enforcement activities.

http://www.law.cornell.edu/constitution/constitution.articleii.html#section2

http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentiv

[Nickster]

4. Here's a few thoughts.

"The Fourth amendment protections against searches and seizures is not triggered because it is not a law enforcement activity; therefore, no warrant is necessary."

So by his logic, going on a fishing expedititon is a-ok. It's not a law enforcement activity until they find something that they can use to bust you on? Why do the warrantless searches unless they were looking for actionable intelligence? Kind of circular logic no?

Where exactly does the 4th Amendment call for exceptions to a citizen's reasonable right to privacy as long as it doesn't involve law enforcement? Doing a search should only be something that's done with a reasonable belief that you're bring the person to trial, why else do it?

"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."

[Warpy]

8. The executive branch has NO CONSTITUTIONAL AUTHORITY

to VOILATE THE FOURTH AMENDMENT.

His argument is utter GARBAGE.

It's called a WARRANT. The executive branch has to get one along with everybody else in the system.

No WARRANT, no AUTHORITY.

Simple, aint it?