Posse Comitatus Violation in NSA Eavesdropping
The current concern over the constitutionality of the President's authorization of the National Security Administration (NSA) to gather intelligence--read, spy--on U.S. citizens without warrants doesn't tell the whole story.
Executive order cannot contravene constitutional requirements of the 4th Amendment's search and seizure restrictions. But this is not my focus; this issue should be challenged in Federal court, and in an ideal world should reach the U.S. Supreme Court. The rightness or wrongness of said move on a constitutional basis is a question for the courts and the legislature. Surely Congress has reason to address the issue, but as always since 9-11, the President is being given a free pass to interpret his "wartime" powers in a loose manner. Never mind that a state of war does not exist in any legal sense of the word.
Rather, my opposition to the NSA spying is not based upon the 4th Amendment; it is based on the fact that the President is ignoring and violating the Posse Comitatus Act that is U.S. law concerning the use of the military to enforce civilian law.
Since the conceptualization of the USA, there has been a fear of military domination of society. The 4th Amendment was adopted by our founders due to British Army excesses, such as searching colonial homes often based upon less-than-reasonable cause.
The Posse Comitatus Act of 1868 prohibits the use of the army (or air force) to execute civil law unless "expressly" authorized by the Constitution or Congress. Posse Comitatus was authorized as law due to the unconstitutional use of the U.S. Military to enforce civilian law in the south after the Civil War. Without a history lesson, suffice it to say the excesses and flagrant violations of the Constitution caused the passage of this law. Since then, use of the military to enforce civilian law has been strictly overseen by the legislative branch, and rightly so.
Congress may authorize exceptions, as has been done in the "War on drugs", and these exceptions are usually acceptable to the U.S. public since they are viewed as necessary to counter a grave threat. But using the military in the drug arena has made further exceptions to Posse Comitatus easier to authorize. (How appropriate that the leader of that particular pursuit is known by the moniker, drug "czar".) Unfortunately, Congress has not authorized the long-term use of the military (=NSA) to conduct signals intelligence without warrants, nor does the President have the Constitutional authority to do so.
The U.S. military is designed to protect the U.S. citizenry from external threats and enemies. The military cannot police our citizens. Nowhere does the Constitution authorize this passage, and this limitation has not been abrogated nor abridged by subsequent amendments.
As a Department of Defense(DoD)agency, the NSA is military, yet the President is being given a free pass to utilize these military assets to fulfill a purely police function. The NSA is not a police or a federal law enforcement agency; it is purely an intelligence agency of the combined armed services.
One of the reasons we eliminated Saddam was because he misused his military to suppress his civilian population. How is the NSA spying without warrants upon U.S. citizens any better than Saddam's actions?
Please don't think that 9-11 can be an excuse to allow the U.S. military free range to suppress U.S. civil rights on a long-term basis. And make no mistake: that is exactly what is happening. Of all the millions of personal calls monitored, where is even one subsequent conviction in federal court?
As a nation of law, fair and open trials are afforded to even the most dastardly. NOTHING CHANGED ON 9-11. Neither the Constitution, the Geneva Convention, International law, nor the moral positions of Americans was altered one iota as a consequence of the terrorist attacks, which happened to occur this time in the United States.
The beauty of democracy is the ability of the system to overcome and moderate hysterical responses in crisis environments. Osama bin Laden and Saddam can improvise, but the U.S. system must respond in a legal and reasoned manner. In the post 9-11 world, one must wonder if courts are now secret (i.e., rarely turning down requests for warrants.) And if everything is so secret that the electorate cannot be trusted with the information, then are we still a democracy? What is next--secret police?
The mantra of Bush as wartime Commander-in-Chief exercizing his legitimate and implied area powers does not work. Authorizing exceptions is the domain of Congress. While the President admittedly has the construed latitude to authorize short-term quick fixes that are technically legal and utilize military assets, it must be emphasized that these are short-term, until another agency can assume command of those tasks. NSA wiretapping is not a short-term fix.
An example of this was the use of military guards employed in civilian airports throughout America following 9-11 until an appropriate civilian law enforcement reply could be organized. Specifically, Title 18, US code, states: military personnel may not make arrests, participate directly in searches or seizures of evidence, or PARTICIPATE DIRECTLY IN INTELLIGENCE COLLECTION FOR LAW ENFORCEMENT PURPOSES, unless such action is necessary for the IMMEDIATE protection of human life AND cannot be accomplished by law enforcement personnel (10 USCP 382 (d)(2)). In emergency situations, the Congress must execute its Constitutional authority to regulate the armed forces.
The President's actions authorizing NSA wiretapping are long-term violations of Posse Comitatus that usurp the powers of the Congress.
It is remarkable to me that this question of Posse Comitatus violations has not surfaced. While nobody has ever been prosecuted for PCA violations, it would seem George W. Bush should be the first. He clearly admits his guilt in a direct and open manner, but without Congressional action, it is doubtful the Gonzales Department of Justice will investigate this violation.
I hope that someone other than me is concerned with this blatant disregard of U.S. code.
Executive order cannot contravene constitutional requirements of the 4th Amendment's search and seizure restrictions. But this is not my focus; this issue should be challenged in Federal court, and in an ideal world should reach the U.S. Supreme Court. The rightness or wrongness of said move on a constitutional basis is a question for the courts and the legislature. Surely Congress has reason to address the issue, but as always since 9-11, the President is being given a free pass to interpret his "wartime" powers in a loose manner. Never mind that a state of war does not exist in any legal sense of the word.
Rather, my opposition to the NSA spying is not based upon the 4th Amendment; it is based on the fact that the President is ignoring and violating the Posse Comitatus Act that is U.S. law concerning the use of the military to enforce civilian law.
Since the conceptualization of the USA, there has been a fear of military domination of society. The 4th Amendment was adopted by our founders due to British Army excesses, such as searching colonial homes often based upon less-than-reasonable cause.
The Posse Comitatus Act of 1868 prohibits the use of the army (or air force) to execute civil law unless "expressly" authorized by the Constitution or Congress. Posse Comitatus was authorized as law due to the unconstitutional use of the U.S. Military to enforce civilian law in the south after the Civil War. Without a history lesson, suffice it to say the excesses and flagrant violations of the Constitution caused the passage of this law. Since then, use of the military to enforce civilian law has been strictly overseen by the legislative branch, and rightly so.
Congress may authorize exceptions, as has been done in the "War on drugs", and these exceptions are usually acceptable to the U.S. public since they are viewed as necessary to counter a grave threat. But using the military in the drug arena has made further exceptions to Posse Comitatus easier to authorize. (How appropriate that the leader of that particular pursuit is known by the moniker, drug "czar".) Unfortunately, Congress has not authorized the long-term use of the military (=NSA) to conduct signals intelligence without warrants, nor does the President have the Constitutional authority to do so.
The U.S. military is designed to protect the U.S. citizenry from external threats and enemies. The military cannot police our citizens. Nowhere does the Constitution authorize this passage, and this limitation has not been abrogated nor abridged by subsequent amendments.
As a Department of Defense(DoD)agency, the NSA is military, yet the President is being given a free pass to utilize these military assets to fulfill a purely police function. The NSA is not a police or a federal law enforcement agency; it is purely an intelligence agency of the combined armed services.
One of the reasons we eliminated Saddam was because he misused his military to suppress his civilian population. How is the NSA spying without warrants upon U.S. citizens any better than Saddam's actions?
Please don't think that 9-11 can be an excuse to allow the U.S. military free range to suppress U.S. civil rights on a long-term basis. And make no mistake: that is exactly what is happening. Of all the millions of personal calls monitored, where is even one subsequent conviction in federal court?
As a nation of law, fair and open trials are afforded to even the most dastardly. NOTHING CHANGED ON 9-11. Neither the Constitution, the Geneva Convention, International law, nor the moral positions of Americans was altered one iota as a consequence of the terrorist attacks, which happened to occur this time in the United States.
The beauty of democracy is the ability of the system to overcome and moderate hysterical responses in crisis environments. Osama bin Laden and Saddam can improvise, but the U.S. system must respond in a legal and reasoned manner. In the post 9-11 world, one must wonder if courts are now secret (i.e., rarely turning down requests for warrants.) And if everything is so secret that the electorate cannot be trusted with the information, then are we still a democracy? What is next--secret police?
The mantra of Bush as wartime Commander-in-Chief exercizing his legitimate and implied area powers does not work. Authorizing exceptions is the domain of Congress. While the President admittedly has the construed latitude to authorize short-term quick fixes that are technically legal and utilize military assets, it must be emphasized that these are short-term, until another agency can assume command of those tasks. NSA wiretapping is not a short-term fix.
An example of this was the use of military guards employed in civilian airports throughout America following 9-11 until an appropriate civilian law enforcement reply could be organized. Specifically, Title 18, US code, states: military personnel may not make arrests, participate directly in searches or seizures of evidence, or PARTICIPATE DIRECTLY IN INTELLIGENCE COLLECTION FOR LAW ENFORCEMENT PURPOSES, unless such action is necessary for the IMMEDIATE protection of human life AND cannot be accomplished by law enforcement personnel (10 USCP 382 (d)(2)). In emergency situations, the Congress must execute its Constitutional authority to regulate the armed forces.
The President's actions authorizing NSA wiretapping are long-term violations of Posse Comitatus that usurp the powers of the Congress.
It is remarkable to me that this question of Posse Comitatus violations has not surfaced. While nobody has ever been prosecuted for PCA violations, it would seem George W. Bush should be the first. He clearly admits his guilt in a direct and open manner, but without Congressional action, it is doubtful the Gonzales Department of Justice will investigate this violation.
I hope that someone other than me is concerned with this blatant disregard of U.S. code.
posted by rangeragainstwar at 3:41 PM
2 Comments:
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Be at peace, soldier. God bless you profusely and all who stand for what the Revolutionary War was fought for. The funny thing is, now I’m on BIG, BAD Janet’s list of bloody terrorists even though I’m a head-injured-wetard for speak’n the TRUTH. Most of U.S. are controlled, conformed, condemned to walking ‘the Wall’ to our demise. Think summore past the vastly impotent, world government and focus on the eternal; don’t do the suicidal, whorizontal reality; and please don’t get played like a HAARP. Gotta lookit our blogs, dude, for that’s the only Way outta the zooillogical quandary (first? I’d lookit ‘MrsDeeWormer')
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