NSA Surveillance Part Dos

In response to ARM and Abe:
I agree with you ARM, this is a constitutional question. If ARM would have put on his listening cap (instead of his partisan cap) he would have noticed that I am not attacking the "Bush Administration" on this issue. I believe they are doing what they think is best for the country at a time of imminent threat. Even good intentions do not allow us to ignore the constitution.

ARM, you state that “congress cannot limit presidential powers”. See Con. Law 101. Bravo! Now what the eff does that mean? Your response does not show the thinking of one trained in the law. You sound like a political hack, honest. Reread my post. If anything, that is the entire point of it. You say that Congress cannot limit presidential powers. I agree. But what are the presidential powers? You can’t just say, “we are at war, therefore the president has his wartime powers”. Your statement is correct, but what do wartime powers include? Unlike Abe’s imperceptible position(A persisting problem with Democrats), I do believe we are at war and we need to look through that lens when debating this issue. The answer to this question is important. Article II is rather vague and likely purposefully so. You might say that the reason the framers left it as such is because they were giving the president tremendous powers during time of war. I take a different approach by looking at the constitution as a whole.

There is also a “judiciary Power of the United States” created by Article III Section 1. “The judicial Power of the United States, shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States..” Art.III Sec. 2. This allows our courts to decide by circumstances of the times what Article II means. Even if you are a “strict constructionalist” as many conservatives claim to be, you would have conflicting constitutional language in this case, the 4th Amendment against Art II.

Therefore, the constitution, by necessity, must be interpreted by the judiciary in many circumstances. This is one of the greatest checks and balances and why the framers left the constitution so vague. An ambiguous constitution allows for situations just like this NSA surveillance debate.

If you look at Article II, the so called war powers of the president, you will notice no mention of “war time powers”.

The President shall 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..

Cite me to other language if you disagree. So how does this clause give a president the power to intercept communications between two Americans, one being overseas and the other in the United States? The 4th Amendment is also a part of the constitution, for those who choose to cherry pick constitutional wording for disingenuous debate. Why does Article II trump this protection against unreasonable searched and seizures as the Bush Administration essentially argues? The Supreme Court should settle this issue, as I trust them to protect my rights as an American against governmental intrusion. (They have a pretty good track record) One last point, the FISA and Wiretapping statutes, although relevant, will not answer this issue as the constitution is authoritative over statute.