Answering Big Man Questions

Be sure to catch the latest on the debate at: http://garveys-ghost.blogspot.com/2006/02/american-big-man-part-iv.html

The author of the Nooilforpacifists blog has posted a set of questions or rather issues, he has with The Ghosts, position on Presidents Bush's wiretapping. They are reprinted here in case the comment system goes down:

1) The scope of the President's Constitutional power can not be narrowed by statute. Thus the "purpose of FISA" isn't determinative, it's optional. Assuming the "war powers provision" you mention is Article II, Section 2, it's made superior to statute by virtue of Article VI--otherwise you could amend the Constitution by statute.

Absolutely not. FISA is law. The president MUST put all domestic wiretaps through FISA. The President nor any other arm of government does not have, and never did have the constitutional right to spy on citizens without "due process." This is not a narrowing of constiutional power we are talking about it is an expansion of so called constitutional power. Read the argument as given by the Bush admin. They claim that the AUMF gave the president authority to wiretap. in order to give one must not possess to begin with. This was clearly laid out in the American Big Man post. So point no. 1 is out.

2) The facts here make the connection to criminal procedure -- you cite the presumption of innocence and probable cause -- weak. I agree that such rights are "appropriate" in law enforcement. But the Administration's wiretaps have nothing to do with law enforcement. (And if they do, I already agreed they're illegal.) They're actions as commander in chief, and not necessarily subject to identical limits.

What is terrorism but a set of criminal acts. The US is not going after Osama because he spoke ill of America. The US is after Osama because they believe he masterminded the murder of 3000 innocent people. US citizens thought to be aiding Al-Q are believed to have or to be committing treason; also a crime. So yes this is about law enforcement and as such, presumptions of innocence stand. Mind you, in the past decade or so the public's perception of innocent until proven guilty has become unfashionable, but it is still a constitutional guarantee regardless of how often it is disregarded in practice. The Commander in Cheif also happens to be able to pardon convicted criminals at will. This makes him in a sense over the judiciary since he can overturn a sentance ( much like a governor can). It is this dual ability to command the military and to effect the justice system why FISA is even on the books. This too was dealt with in American Big Man.

3) If the authority is as commander in chief, a test based solely on citizenship makes no sense, as RNC Chairman Ken Mehlman said: "Do Nancy Pelosi and Howard Dean really think that when the NSA is listening in on terrorists planning attacks on America, they need to hang up when those terrorists dial their sleeper cells in the United States?"

This point makes no sense. In American Big man III I laid out two scenarios in which the NSA or whomever may operate. Both scenarios shows that the NSA or whomever has ample leeway to continue wiretapping while the proper court documents are procured. So this point is completely irrelevant. I also pointed out in American Big Man II that the wiretapping has been used to target non-criminal, non-terrorist related people and organizations. The blogger at Nooilforpacifists has not taken this position up and explained it.

4) National security eavesdropping's old news. Remember, we broke Japanese and German "Enigma" codes, and that knowledge and won WWII. See, e.g., the Battle of Midway. Assuming some of those messages were received here, would that have required a warrant? The threat to America increases when an enemy is in communication with someone located in the U.S. One can't so easily dismiss the position that warrantless national security wiretapping is both necessary and appropriate.

Like the previous point, this is largely irrelevant. The Ghost has already agreed that the executive has the ability to surveil foriegn transmissions. The Ghost has also presupposed that foreign nationals within the US do not enjoy the same constitutional priviledges as citizens or legal residents. Again as pointed out in the scenarios in American Big Man II, there is ample room for continued wiretapping while the relevant warrants were obtained.

5) Even were citizenship the test, it's possible no citizen has been wiretapped, under 8 U.S.C. § 1481: A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality - . . .

(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States.


Again, even if a citizen was suspected of committing treason against the US, it still would have to be proven in a court of law and the presumption of innocence still applies. I cannot imagine that nooilforpacifists believes that anybody can simply be stamped a traitor by the executive (or any other law enforcement official) and lose his or her citizenship just like that? Well I can imagine it but not under the constitution that the country was founded on.

I would also suggest that nooilforpacifists read the entire law quoted. It reads:

(7) committing any act of treason against, or attempting by
force to overthrow, or bearing arms against, the United States,
violating or conspiring to violate any of the provisions of
section 2383 of title 18, or willfully performing any act in
violation of section 2385 of title 18, or violating section 2384
of title 18 by engaging in a conspiracy to overthrow, put down,
or to destroy by force the Government of the United States, or to
levy war against them, if and when he is convicted thereof by a
court martial or by a court of competent jurisdiction.


So again, There is no legal grounds for the actions of the president.

GG