Wednesday, January 30, 2008

A Constitutional Question

One argument used to justify the Administration's violation of the Foreign Intelligence Surveillance Act is the claim that such surveillance is part of defense activity, that the Constitution makes the President commander in chief of the army and navy, hence that he has complete freedom in how he conducts defense activity, hence that he cannot be restricted by FISA.

But the Constitution also says that:

"The Congress shall have Power To make Rules for the Government and Regulation of the land and naval Forces;"

So if surveillance is part of the activity of the army and navy, Congress is entitled to make rules regulating it--for instance FISA.

Am I missing something?


Anonymous said...

That whole section of the Constitution, from "To declare War" to the clause that starts "To provide for organizing, arming, and disciplining, the Militia ...", appears to be obsolete, at least in practice. It's been over 50 years since the U.S. Congress formally declared war on another country. The U.S. in effect has a standing army/navy, even though money appropriated for that purpose is supposed to only last for two years. So it appears the intent was that the "raising of armies" be a temporary and exceptional action, rather than the permanent one it has become.

montestruc said...

I think you have a very valid point.

Anonymous said...

Anything is "Constitutional" -- as long as they can get away with it.

Raphfrk said...

Processes in the constitution tend to be stronger than the legal components. For example, elections are always held.

The executive branch controls the enforcement of the laws, so in effect shielding the executive branch from legal enforcement. This is stronger than the text of the constitution elsewhere.

The only risk is that a later President will charge a former President and that isn't very likely, unless the violations are excessive.

Maybe they should have allowed Congress appoint a special prosecutor. (Better yet would be allowing 1/3 of the House to appoint one, so both parties in effect get to appoint one).

KittyAntonikWakfer said...

Yes, David, I think you are missing something. The Constitution is rife with contradictions and the current state of the country is of evidence of so - the current president at odds with the current Congress over FISA is just one of thousands of examples. If the US Constitution were not so self-contradictory (despite it being better at the time of its writing than anything else), then there would be no problems for the members of the current US society trying to use it as a framework for interactions.
But possibly (actually, hopefully) you are being rhetorical in your entry - since your writings in Machinery of Freedom make it quite clear that the current method is inadequate. I contend that there is a more foundational way to look at human interactions and to base a society for mutual benefit of all its members than that which is being attempted - with much evident failure.

Anonymous said...

I have a question. If the Constitution only gives Congress the power to declare war, but the Congress hasn't declared war since World War II, is it possible to sue them to enforce that section of the Constitution? Or do the rules of procedure not permit that?