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Author Topic: Judge Rules Bush's Surveillance Program Unconstitutional
LinuxFreakus
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quote:
Originally posted by Pete at Home:
I think it's singularly dishonest to make a rhetorical question and then accuse someone of "avoiding the question," Linux.

I will use shorter words that you will hopefully understand this time explain why my previous answer did actually answer with your "question:"

if the constitution says the president has power X, and the president uses power X, then the president is not "walking on the constitution."

If Linux still does not understand that, would someone else like to have a go?

Yes, thanks for summarizing the problem again, but you still didn't really say anything.
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Pete at Home
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"first, why do you think that the executive branch should not be restrained by the auspices of the Constitution?"

Ah. I did not mean to say anything about what *should* be. I speak of what the constitution actually says, which is that:
1. The courts cannot prosecute a president for breaking the law unless Congress has impeached and convicted that president.
2. The President's oath of office forces him to interpret by his own judgment, not by the court's. If the constitution meant obey the court, that's what it would have said. The court may be the ultimate arbiter of what the constitution means as far as the court is concerned, but not as far as the president's oath of office is concerned.

"why would giving all prisoners of war 'due process' cause any issue?"
Because process refers to commission of crimes or civil injury and prisoners of war are not generally criminals or committers of civil wrongs. It's rewriting the constitution and violating separtion of powers which puts the congress ultimately in charge of war, through their powers over the president.

Your third question addresses a massive difference too big and complex for me to begin to describe, and I don't think I know enough to answer fully. A citizen that is being held for unknown reasons has rights that can only be diminished by congress' constitutional power to suspend Habeas Corpus. A citizen held for terrorism may or may not have rights to the court depending on underlying laws passed by Congress, whether the act of terrorism was part of a war, where the person was captured, what government is holding him, etc.

For example, if Kurdish forces caught the last of the Munich terrorists holed up in Iran during some border incursion, and it turned out he was a US citizen, and the President told the Kurds to extradite him to allies in Israel without consulting the courts, I think that existing caselaw does not provide an answer whether that was right or wrong. But I think that the text of the constitution gives the executive power to make such decisions, and that the courts would be exceeding their authority to intervene.

Edited to turn what mistakenly looked like impatient SHOUTING into *emphasis*

[ August 17, 2006, 06:24 PM: Message edited by: Pete at Home ]

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Pete at Home
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Linux, it's hard to give an illuminating answer to a foolishly framed rhetorical question. I'd like to see you try to do better. For one who supposedly adheres to strict logic, you seem to have a hard time recognizing it when it pounces on you and shakes you by the shoulders.

[ August 17, 2006, 06:25 PM: Message edited by: Pete at Home ]

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Godot
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Seems like a lot of hypotheticals bouncing around the Pete & Everard show today [Wink] .

I'm just glad *somebody* is finally willing to perform some oversight since the majority in Congress is unwilling to uphold their constitutional duties.

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Pete at Home
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quote:
Originally posted by Godot:
Seems like a lot of hypotheticals bouncing around the Pete & Everard show today [Wink] .

I'm just glad *somebody* is finally willing to perform some oversight since the majority in Congress is unwilling to uphold their constitutional duties.

Godot, if you don't mind if an agency of the government violates the constitution in order to perform some oversight, then what exactly is your objection to the Bush's surveillance program?
[Razz]

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Godot
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Pete,

Sorry, I must have missed something. How did the court violate the constitution?

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The Drake
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quote:
Originally posted by Pete at Home:
I would sacrifice my right to phone privacy in the name of saving lives, yes. It seems astonishingly unethical to place telephone privacy as higher priority than saving human lives.

Everybody probably already knows how I feel about this subject - I'm happy to see this ruling.

Pete, you've drawn a distinction between military actions (the war on terror) and criminal activity. But your justification above indicates that telephone privacy (presumably no less deserving than other privacy, IMO) is not worth lost life.

If that is your criteria, why not apply it to criminals as well? Shouldn't the FBI and the local PD be able to do this? I can guarantee you that if LAPD could monitor calls to foreign nations, they could save some lives also.

You might say that the Constitution allows the former and not the latter. But elsewhere in this thread, you assert that the courts can't tell the executive what to do in such matters.

I'm left a little confused as to how your views prevent an oppressive Chinese-style police state from arising in our great nation.

Catching terrorists is great. So use the FISA courts, and everyone can go home happy and sleep in a warm bed. Don't use the FISA courts, deny court power over the Presidency, and pretty soon we'll have a guy like Musharraf in charge.

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Pete at Home
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quote:
If that is your criteria, why not apply it to criminals as well? Shouldn't the FBI and the local PD be able to do this? I can guarantee you that if LAPD could monitor calls to foreign nations, they could save some lives also.
If you think so, then change the constitution. 4th amendment bars police that kind of activity.

It doesn't bar military from repelling an invasion or catching sleeper agents. See cites above.

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TomDavidson
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quote:
If you think so, then change the constitution.
I think he's asking if YOU think so.
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Pete at Home
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When the military taps phones, and finds stuff that does not affect national security, like pot, or someone cheating on taxes, or pirated music, they don't haul the guy in and bust him. They are looking for national security stuff. Their job, unlike the FBI and LAPD, is not to keep the prisons full.

When judges relax constitutional standards for cops, and allow stuff like random highway stops to test drunk driving, the cops always turn it into a fishing expedition, and see if they can catch you breaking any law, regardless of whether it's a public safety or simply a breach of the social order.

So NO. If you want my advice, keep the 4th amendment, and don't change it to compromise national security during an invasion, and don't water it down to allow cops to pretend that a crack pipe in someone's pocket is a matter of national security.

Consider the possiblity that the framers weren't idiots.

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Pete at Home
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And like I said before, Justice Jackson's dissent to Korematsu explains why courts should not be placed in charge of military expediency decisions. Because national security requires choices that would create court rules, that would like around like an "unloaded gun" during peacetime, and because the courts always expand principles "to the limit of their logic."

Whether you hand the courts over to the military, or the military over to the courts, expediency kicks in and the end result is the same. Permanent martial law.

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kenmeer livermaile
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One of the complaints after the Patriot Act was passed was that the relaxtion of privacy laws were being applied to civilian matters -- racketeering, et cetera -- that weren't affecting national security.

The source and cause and effect of this seems pretty clear.

It is the argument via the Justice Department under Ashcroft and then Gonzales, whereby things like the definition of 'enemy combatant' and related definitions have been held under several different lights at once in a manner that expanded the shadowy grey areas affecting them, where the more damaging ambiguities have been achieved, I believe.

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Jesse
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"We're only scanning your papers quickly, to see if we come across phrases like 'God Save the King'. You could be a Tory agent, for all we know."

I wonder just how cool the framers would have been with that.......

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The Drake
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Cite all you want, I'm sure it is quite accurate. I'm not a lawyer. I am a citizen and a patriot, and I say that I want this internal surveillance stopped now. I don't care who does it. I don't know if it requires a new law, a new amendment, a court order, or simple executive restraint.

I certainly don't trust the CIA and NSA any more than I do the LAPD or the FBI. They all say "government" to me, and I want them all to stay out of my private correspondence and personal conversations - at the very least until such time that they announce that all citizen calls may be monitored such that we can all react at the ballot box to such a step.

Tell the guys who get incarcerated that the CIA and NSA weren't on a fishing expedition when they decided to question them about their private phone call. On the bare face of it, it must be a fishing expedition, else the FISA court could simply issue a warrant.

It is disingenuous to call this a wartime exigency. At what time will we not be at war? At what time will the alert level turn blue, and the government climb back in a box? There will be no V-ME day to celebrate in this conflict that is being called "the Long War".

Americans have a clear choice at this juncture. Hand the government absolute power so that they can combat the permanent threats to our citizens, or contine to ask government to act with restraint, reason, and respect for the rights of individual citizens - while accepting that this means greater risk from terrorists and madmen bent on destruction.

Is it really so easy to give your life up into the hands of the government to do with as they please? To know all they can about you, and to trust them to only use it for the purposes that you expect and anticipate?

I refuse.

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Storm Saxon
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I want to have Drake's babies.
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Storm Saxon
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In a very manly, non-girly way, of course. *ahem*
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Pete at Home
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"Tell the guys who get incarcerated that the CIA and NSA weren't on a fishing expedition when they decided to question them about their private phone call. On the bare face of it, it must be a fishing expedition, else the FISA court could simply issue a warrant."

By that standard, you'd call Ahab's jaunt a fishing expedition.

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Pete at Home
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You can play hero to Storm Saxon, but do try to understand what a fishing expedition is.

Fishing expedition is when cop goes into your house looking for one a lost kid, and then nails you for weed. That's what the 4th was supposed to prevent, and courts routinely allow it.

Here, we're talking about quickly chasing connections down to find sleeper agents. You want to go chase them down and commiserate with the sleepers, then be my guest.

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kenmeer livermaile
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Godot, if you don't mind if an agency of the government violates the constitution in order to perform some oversight, then what exactly is your objection to the Bush's surveillance program?

Um, if I understand Pete's constitutional analysis of this issue, the President doesn't have to OBEY the court ruling per the Constitution...

but, if so, that doesn't mean the Court is violating the Constitution in telling the President that IT thinks the President is violating the Constitution.

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The Drake
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A fishing expedition, as I understand the usage, is coming up with a pretext or minor point to find something incriminating. This may, or may not, be something specific or just any wrong doing. Like when you pull over that car full of teenagers for a "broken taillight" so you can see if they are drinking or holding illegal substances.

I use the term here, because I don't believe that there was substantial cause. I make that statement, because I assume that if there was substantial cause, there would have been no problem in getting such surveillance approved - after the fact, with no delay in the gathering.

When our government goes after the White Whale of terrorist sleeper cells, they do indeed become like Ahab - obsessed with destroying their enemy and unconcerned with the danger and burdens they place on their crew - that is to say, "We the People"

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kenmeer livermaile
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In a very manly, non-girly way, of course. *ahem*

Like while wearing cowboy boots and a torn t-shirt?

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Pete at Home
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quote:
Originally posted by The Drake:
A fishing expedition, as I understand the usage, is coming up with a pretext or minor point to find something incriminating. This may, or may not, be something specific or just any wrong doing. Like when you pull over that car full of teenagers for a "broken taillight" so you can see if they are drinking or holding illegal substances.
...
When our government goes after the White Whale of terrorist sleeper cells, they do indeed become like Ahab - obsessed with destroying their enemy and unconcerned with the danger and burdens they place on their crew - that is to say, "We the People"

That is true. There is a danger to war, and it's exactly what you described in paragraph 3. On the other hand, I don't recall Ahab's crew coming triumphantly back from the whale hunt with a bunch of innocent bass and tuna.


What you describe in paragraph 2 has nothing to do with war whatsoever, and you've mangled the concepts of police work and war.

quote:
I use the term here, because I don't believe that there was substantial cause. I make that statement, because I assume that if there was substantial cause, there would have been no problem in getting such surveillance approved - after the fact, with no delay in the gathering.
That has NOTHING to do with a fishing expedition. You're talking about probable cause and other police arrest issues. Violation of privacy rights have ZIP to do with the question of whether the CIA in this case went after sleepers, or settled for tax evaders. (THAT would be a fishing expedition.}

If we'd let the modern FBI handle the Nuremberg prosecution, they'd have let Himler and crew walk in exhange for damning testimony against Seargeant Schultz. But that's another problem that doesn't have a name yet, IIRC. Call it Gallardi syndrome.

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kenmeer livermaile
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If we'd let the modern FBI handle the Nuremberg prosecution, they'd have let Himler and crew walk in exhange for damning testimony against Seargeant Schultz.

Doesn't the hierarchy of who walks in order to proecute more important figures work the other way around.

In building cases of criminal prosecution, doesn't **** roll UP hill?

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The Drake
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I certainly won't try to defend or even address plea bargains.

Whether what the government is doing is fishing or not, we can't intelligently argue about, Pete.

If they start listening to a guy's phone calls because his last name begins with "Al-" or he lives next door to a mosque - I'm going to label it a fishing expedition.

Do we know that this is the case? We can't, neither of us is cleared for the information. When I said substantial cause, I possibly should have said "no cause" or "picking people at random". We know that there are people who have been wrongly accused (the tuna) who have been chucked back into the ocean while the government continues its search for the Whale.

Of course, there will not be a triumphant result to the war on terror, any more than there was to the cold war. But even in the cold war, against a much more advanced and organized enemy, no President felt pressured to the point where they decided to monitor all phone calls made by Cuban-Americans.

If I'm mangling the cause of police work and war, it is because we are defining the juxtaposition of those two concepts as we speak. When war is continuous and combatants do not identify themselves, it becomes indistinguishable from policing your population. On the one hand, you can choose to apply the concepts of war. This has been a disaster to citizen rights in the "war on drugs". On the other hand, you can choose to apply the concepts of domestic policing. Which could have disastrous consequences, like the loss of ability to spy on satellite conversations following the first WTC bombing trial.

When the government comes to the people, and soberly asks us to sacrifice some freedom to gain greater security, perhaps people will respond with stoic solidarity. But that hasn't happened, has it Pete? Instead, we have a government that insists they've not done anything that any citizen should be concerned about. That they have done nothing wrong. That will not explain why they won't use the FISA courts.

Some people are now clamoring for laws like those in the UK.

quote:
Control orders are used where there is not enough evidence to prosecute.

The Court of Appeal upheld the decision made by a judge earlier this year that orders made against six suspects were too severe and should be quashed.

The orders, which kept the men inside for 18 hours a day, are being changed but the government is to appeal again.

The court did allow one part of Home Secretary John Reid's appeal against an earlier ruling which said another suspect had not been given a fair hearing when put on a control order.

Earlier this year, Mr Justice Sullivan ruled that control orders on six suspects were so strict that they broke Article 5 of the European Convention on Human Rights, which outlaws indefinite detention without trial.

The six men, who cannot be identified, are all Iraqi nationals who were arrested under anti-terrorism laws and later released without charge.

Instead, control orders were made against them which forced them to stay indoors between 4pm and 10am every day.

Do we want this here? Do you, Pete?

Let's not forget the UK conviction of the Guildford Four.

This is where it starts. This is where we decide. Who are we to be as a nation as we firmly step foot in the 21st century?

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kenmeer livermaile
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Somewhere in this debate is the point where we stop discussing Constitutional fine points, however fundamental they are to our lives under Rule of Law, and we address our trust or lack thereof in those whose actions are hidden behind the powers over us with which they've been entrusted.

We have two threads currently running discussing these two aspects.

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Pete at Home
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quote:
Originally posted by kenmeer livermaile:
If we'd let the modern FBI handle the Nuremberg prosecution, they'd have let Himler and crew walk in exhange for damning testimony against Seargeant Schultz.

Doesn't the hierarchy of who walks in order to proecute more important figures work the other way around.

In building cases of criminal prosecution, doesn't **** roll UP hill?

Run a search on the name Michael Gallardi. Big stinking Las Vegas stripclub pimp extraordinaire who cut a deal with prosecutors just like I describe. Rather than taking Gallardi for tens of millions of dollars and decades in prison, they let him sell his strip clubs to his dad, where Gallardi continues to run them, and let him and his dirtiest cronies testify against 2 vegas city councel members, one of whom got free romps with strippers, and the other one a counsilwoman who got her son free trips to a strip club, and got her son free ski lessons.

They gave up Himmler for Seargeant Schultz

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Pete at Home
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quote:
Originally posted by The Drake:
I certainly won't try to defend or even address plea bargains.

Whether what the government is doing is fishing or not, we can't intelligently argue about, Pete.

We could, if you'd try to undertand what the term meant, rather than trying to pin it on anything you think is a government abuse of power. See above. There are terrible abuses of investigation power, dentention without trial, which ARE NOT "FISHING EXPEDITIONS."

[ August 19, 2006, 01:25 AM: Message edited by: Pete at Home ]

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Pete at Home
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What you're doing is kind of like calling any kind of battery a "rape." A rape is a specific form of a battery. Not all batteries are rapes. And not all abuses of investigation power are fishing expeditions.
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kenmeer livermaile
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Well, Nevada is a world unto itself. The opposite occurred in Chicago with the taking down of Al Capone, and that is the prevailng pattern.
(Doesn't anybody watch Miami Vice reruns anymore?)

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kenmeer livermaile
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And not all abuses of investigation power are fishing expeditions

Aye. There's framing, for example.

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The Drake
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Okay, its not a fishing expedition. I've misused the term. It is investigating someone with no evidence of wrong doing. Does that help? Are the semantics really the interesting part?
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Paladine
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quote:
Okay, its not a fishing expedition. I've misused the term. It is investigating someone with no evidence of wrong doing. Does that help? Are the semantics really the interesting part?
No. More interesting is this:

quote:
Cite all you want, I'm sure it is quite accurate. I'm not a lawyer. I am a citizen and a patriot, and I say that I want this internal surveillance stopped now. I don't care who does it. I don't know if it requires a new law, a new amendment, a court order, or simple executive restraint
The fact that you, like so many Americans, are happy to see rulings that make things the way you want them, regardless of whether or not they're legitimate and correct from a Constitutional standpoint, is concerning to me. We need to start caring about how things get done in this country, or else we risk losing those same protections and rights patriots like you want defended.
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DonaldD
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That's not what The Drake said, Paladine.

He said that if the surveillance is found to be currently legal, that doesn't make it right, and he would like to see, in the absence of executive self-control, a new law in place, even something up to a constitutional amendment, that would rein in the president.

That is in no way "regardless of whether or not they're legitimate and correct from a Constitutional standpoint". That is making proposals to limit the executive within the current consitutional framework. Or do you believe that any proposed new law would be anti-constitutional and concerning?

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kenmeer livermaile
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I thought the Consitution was written to be flexible to the needs and wishes of the people. The DRake mentioned "a new law, a new amendment, a court order, or simple executive restraint".

Are these unconstitutional?

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LinuxFreakus
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quote:
Originally posted by Pete at Home:
"first, why do you think that the executive branch should not be restrained by the auspices of the Constitution?"

Ah. I did not mean to say anything about what *should* be. I speak of what the constitution actually says, which is that:
1. The courts cannot prosecute a president for breaking the law unless Congress has impeached and convicted that president.
2. The President's oath of office forces him to interpret by his own judgment, not by the court's. If the constitution meant obey the court, that's what it would have said. The court may be the ultimate arbiter of what the constitution means as far as the court is concerned, but not as far as the president's oath of office is concerned.

"why would giving all prisoners of war 'due process' cause any issue?"
Because process refers to commission of crimes or civil injury and prisoners of war are not generally criminals or committers of civil wrongs. It's rewriting the constitution and violating separtion of powers which puts the congress ultimately in charge of war, through their powers over the president.

Your third question addresses a massive difference too big and complex for me to begin to describe, and I don't think I know enough to answer fully. A citizen that is being held for unknown reasons has rights that can only be diminished by congress' constitutional power to suspend Habeas Corpus. A citizen held for terrorism may or may not have rights to the court depending on underlying laws passed by Congress, whether the act of terrorism was part of a war, where the person was captured, what government is holding him, etc.

For example, if Kurdish forces caught the last of the Munich terrorists holed up in Iran during some border incursion, and it turned out he was a US citizen, and the President told the Kurds to extradite him to allies in Israel without consulting the courts, I think that existing caselaw does not provide an answer whether that was right or wrong. But I think that the text of the constitution gives the executive power to make such decisions, and that the courts would be exceeding their authority to intervene.

Edited to turn what mistakenly looked like impatient SHOUTING into *emphasis*

So what is wrong with this ruling then, you still didn't say anything that explains why the ruling shouldn't have happened. Did I miss you point maybe?
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LinuxFreakus
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I mean sure the president could choose to ignore the courts, congress, etc, etc, but he merely does so at his own risk. If he does something people don't like, and the public creates enough pressure, he could be impeached for his careless disregard for the law/constitution.

No?

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FiredrakeRAGE
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Pete -

I think you're missing the point. The Constitution can say that the President has a specified set of powers. However, the 'Declaratory and Restrictive' clauses of the Bill of Rights apply to both the President as well as the Congress.

The Executive may, of course, tell the courts to go hang. The Executive does answer to the Congress (which, imo, was more effective when the States were represented as well). However, that does not make the actions of the President righteous. A criminal may get away with his crime; that does not absolve his guilt.

I agree wholeheartedly with The Drake. The worrisome part of this issue is not simply the actions undertaken in the name of security, but the expectation on the part of the Administration that none of these actions are worthy of comment. While the President has been under partisan attack over the last several years, that is not an excuse to simply dismiss real issues when questions arise.

The Administration should encourage questions with regard to these very important questions. Appropriate length sunset clauses should be implemented with the more worrisome measures; while we want the law to be stable, a stable form of tyranny is not desirable.

--Firedrake

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Pete at Home
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quote:
Originally posted by The Drake:
Okay, its not a fishing expedition. I've misused the term. It is investigating someone with no evidence of wrong doing. Does that help? Are the semantics really the interesting part?

No. But bad semantics were obstructing communication between us. Once we eliminate fishing expeditions as the type of purported abuse, we can talk about whether this is an abuse of power.

Picture this: you're in a drive-in, in a big city where kids dissapear and ugly things happen. There's an adolescent girl missing, and witnesses say they heard her screaming for help somewhere in the drive-in, just 5 minutes ago. "HELP ME! DON'T LET HIM TAKE ME!" 2 cars have left, and witnesses took the plate numbers, because they'd heard the screams. Some might say that the most reasonable thing to do is for police to dispatch other cops on the street to try to look for those cars, ID who drives them and possibly get warrants, and then block the drive in off and search car to car for the kid.

What do you say? Abuse of power? You know there's a kid missing, and probably in one of those cars. Say that the last 20 disapearances like that in your city over recent years,
3 ended up to be misunderstandings (the kid that yelled wasn't even the one missing, or actually parents taking a loud reluctant kid away),
2 were a practical jokes,
3 were domestic kidnappings, i.e. divorced noncustodial parent wanting his kid back against a court order.
13 involved molestation or rape,
4 involved murder,
1 involved mutilation and cannibalism.

(Note the numbers don't add up to 20, since one of the noncustodial parent molested his kid, and 4 of the molestation/rapes also involved murder, etc.)

The 4th amendment requires probable cause for search warrants, but emphasizes that the whole point is to make people safe from UNREASONABLE searches and seizures. Given the stakes involved, some might say that a car to car search for this girl would be manifestly reasonable, even though with 150 cars in the lot, the probability of any one car containing the girl is less than 1%.

What do you say?

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Pete at Home
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quote:
I think you're missing the point. The Constitution can say that the President has a specified set of powers. However, the 'Declaratory and Restrictive' clauses of the Bill of Rights apply to both the President as well as the Congress.

The Executive may, of course, tell the courts to go hang. The Executive does answer to the Congress (which, imo, was more effective when the States were represented as well). However, that does not make the actions of the President righteous.

I agree. But the 4th Amendment is not a simple restriction. AFAIK, in the common law, the word "reasonable" has always been interpreted to create a balancing test. The rights violated, v. the rights protected by a particular search or seizure.
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Pete at Home
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quote:
Originally posted by LinuxFreakus:
I mean sure the president could choose to ignore the courts, congress, etc, etc, but he merely does so at his own risk. If he does something people don't like, and the public creates enough pressure, he could be impeached for his careless disregard for the law/constitution.

No?

That is correct, Linux. FDR responds that the fact that an unimpeached president can get away with something does not mean that it's the right thing to do, and he is also right. I have said that it's the president's duty to interpret the 4th amendment for himself when executing his oath of office, e.g. while repelling an invasion on US soil. So far I don't believe anyone has contradicted that, but Paladine created a special thread for that topic, and I have not checked it this morning.
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