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Originally posted by Ramo
The point was that you are wrong. The left has not been trying to treat foreign intelligence gathering identically to domestic criminal investigations. Rather, it has been trying to get Dear Leader to accept some sort of judicial review - enshrined in FISA.
And those are Appellate court rulings that are pre-FISA (i.e. Truong). Youngstown spells out that the President, even in prosecuting war powers, is not above the law; his powers are at the lowest ebb when specifically over-ruled by Congress.
FISA says that the NSA program is illegal, and note that no court has seriously argued that FISA is unconstitutional.
The point was that you are wrong. The left has not been trying to treat foreign intelligence gathering identically to domestic criminal investigations. Rather, it has been trying to get Dear Leader to accept some sort of judicial review - enshrined in FISA.
And those are Appellate court rulings that are pre-FISA (i.e. Truong). Youngstown spells out that the President, even in prosecuting war powers, is not above the law; his powers are at the lowest ebb when specifically over-ruled by Congress.
FISA says that the NSA program is illegal, and note that no court has seriously argued that FISA is unconstitutional.
While they dealt with pre Fisa ruling the next most pertinent case is sealed case 02-001 from the FISA review court. There they plainly state that the president has constitutional authority to do warrnatless searches and that FISA is merely a means to amplify that power. In other words to give it force of proper evidentiary consideration. In some cases that might not be the case.
If you want to bring the Youngstown case into the mix and apply the Jackson test you've got issue because then you need to likewise consider sealed case 02-001.
For example Jackson merely wrote a concurring opinion but did not write the court opinion on this particular case (Black did). As a consequence it can't count as dicta on the matter. Likewise the counter arguement I have heard regarding Sealed case 002 is that the passage most often referred is not dicta. I suppose that means you want it both ways.
Moreover the following is more important to the Youngstown case
Fifth, the ground on which the Youngstown court rejected Truman's claim that his powers as Commander in Chief gave him the right to seize steel mills was not the fact that Congress disagreed, but rather, and more properly, the fact that the seizure was a domestic, not a foreign, matter. Justice Black wrote for the majority:
"The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities."
Likewise, when Justice Jackson turned specifically to the President's war powers, he emphasized the domestic nature of the steel controversy, not his own three-part test:
" There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***"
We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence."
"The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities."
Likewise, when Justice Jackson turned specifically to the President's war powers, he emphasized the domestic nature of the steel controversy, not his own three-part test:
" There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***"
We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence."
But the legal issue is less important than the moral issue: that searches ought to be subject to some standard of judicial review. Arbitrary executve power is abhorrent to a free society, and goes against everything that makes this country great.
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.
That's simply amazing.
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