Sunday, February 12, 2006

Presidential Power: Preserve, Protect & Defend

There is been a great deal of hullaballoo in the press recently about Bush's use of wiretaps on US citizens. Its no secret that I have been an outspoken critic of this administration and republicans in general. I've made my views quite clear. But this new development of electronic surveillance of US citizens without a warrant, should scare the bejeezes out of all US citizens. It is a direct contravention of every value that we hold dear as Americans.

The president defended his action by actually saying publicly, if you're talkin' to terrorists, we ought to know about it. You say to yourself, 'but I'm not talkin' with any terrorists, so I have nothing to worry about,' right?

Alberto Gonzales actually sat in front of congress and said, we believe we didn't have to follow the (FISA) law because the president has an inherent constitutional authority to surveille international phone calls and e-mails of US without a warrant in concordence with the 4th amendment.

Pat Roberts (R-KS) was on Meet the Press and said that the president has a constitutional authority that rises above any law passed by congress to protect our national security.

The president said that the (FISA) law was written in 1978 and does not work for his program, implying that he had the right to ignore it.

The president also said that he fully briefed congress.

And there has been a lot of talk of the authority of the 'unitary executive.'

Sounds like the bush team has real authority to engage in warrantless wiretapping of US Citizens who make and receive overseas phone calls and send e-mail out of the country, right?


The brilliance of our system of government is that no elected official is above the law. The president, every member of congress and every jursit on the Supreme Court is subject to the same laws that every citizen of this country is subject to. And all of those laws must not contravene our inalienable rights. The president does not have an inherent power written into the constitution to ignore any law he chooses.

Don't believe me?

Well, let's look at the constitution, then.

Unitary Executive Power: aka inherent powers of the president

Here is article 1

I will snip a few sections from the 'Executive Branch' section to make my point. I am using snippets for brevity as most of section 1 is about how the president shall be elected and how he shall be paid. Please go to the link that I provided and read the constitution in its entirety. But the most important part of section 1 is the oath he must take:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Here is section 2

The powers of the president in section 2 are:

  • Commander and Chief of the Army, Navy and Militia
  • The power to make treaties with other countries providing he has 2/3 support of the congress
  • The power to nominate ambassadors, ministers, consuls, judges of the Supreme Court, and all other officers of the US with the advice and consent of congress
  • The power to fill vacancies during congressional recesses, but those appointments will expire at the end of their next session

Here is section 3

  • Convening congress to give a state of the union

oh look, and here's an interesting piece of info in section 3:

Here is section 4

This is the entirety of section 4 of article 2:

"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

That's it. That's the entirety of executive power as stated in the constitution of the United States. Don't believe me. Read it for yourself then. The site that I have provided links to even allows you to do searches for specific things within the contitution. I tried searching for 'Unitary Executive Power.' Do you know what I found? A link to China's constitution.

The Fourth Amendment

On Gonzales' insistence that the president acted within bounds of the 4th Amendment to the constitution, I say poppycock. Here is the 4th Amendment:

"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."

I think that's pretty clear. The government must have probable cause to engage in surveillance and then must get a warrant to be able to do so. Period. Doing otherwise is a direct contravention of the constitution.

Old Laws

The president's statement that the FISA law was written in 1978, so therefore it doesn't apply to him is complete crap as far as I'm concerned.

The Constitution was written in 1787 and ratified by Congress in 1789. This makes me nervous because these documents are much older than the 1978 law. I have to wonder if he feels they apply to him.

Now, Bush's primary reason for defending his program is that he is doing so to 'protect' the country. Protection is one of the principles in his oath of office, but in the context of protecting the constitution. I saw nothing in the constitution that explictely gave him authority to protect the country, although I do believe that authority is implied. It is implied because the constitution does not exist in a vaccum and the values therein are the representation of the rights we have as citizens. The law cannot exsist without the people.

But the president is missing the whole picture. The constitution also calls on him to defend and preserve the constitution. If our values and rights are not defended and preserved, I think we have lost a great deal. If we allow our government to take extra-constitutional actions that demean and diminish our rights, values and laws then we have lost the very essence of democracy. What else, then, will be left to protect?

If Richard Nixon can be threatened with impeachment for illegally wiretapping his Democratic opponents in a presidential election and use the full force of the office of the presidency cover up those actions. If Bill Clinton can be impeached because he lied in court about a blow job he received from an intern. Then bush&co should be impeached for their use of illegal wiretaps.

The president is not above the law.

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