The President has justified the NSA's eavesdropping on the communications of American citizens without court approval by citing his power as Commander in Chief of the military under Article II of the U.S. Constitution. That provision states, in its entirety, as follows:
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 . . .
That's it. Nothing more to it. It doesn't say anything about the power to invade the privacy of U.S. citizens. Nevertheless, the President seems to think that power is implied--that he can do anything he wants in the execution of his duties as Commander in Chief. Is his power really so broad? (Continued.)
The President's reliance on Article II to justify his actions seems to fly in the face of the Fourth Amendment, which states:
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 places to be searched, and the persons or things to be seized.
If the power he takes from Article II is broad enough to trump the Fourth Amendment, consider what else it trumps. Amendment I to the Bill of Rights provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .
However, assuming the President is correct about the scope of his powers under Article II, couldn't he make it a crime to be a Muslim as part of the war against Islamic terrorists?
The First Amendment also provides:
Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to Petition the Government for a redress of grievances.
If the President found it necessary to ensure public support for the war effort, could he, under Article II, make it a crime to criticize, either privately or publicly, the war or his handling of it or to prohibit citizens from lobbying their government representatives to find an end to it?
Amendment III provides:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Does Article II give the President the power to force us to house soldiers in our homes without an act of Congress?
The Fifth Amendment states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
Does Article II give the President to prosecute a U.S. citizen whom he believes is involved in terrorist activities, and thus a participant in his war on terror, without affording the person a grand jury? If the government loses its case against such a person, does Article II give the government the power reprosecute him again and again until it wins? Can the government, under the justification of war, force that person to testify against himself? Can a confession obtained by torture be used against such a person? Can the government obtain a conviction based on a standard of less than proof beyond a reasonable doubt?
The Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
The Eighth Amendment states:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusul punishments inflicted.
Does Article II give the government the power to prosecute a U.S. citizen suspected of involvement with terrorists without affording that person these rights? I think most rational people would say no to all the above questions. I even thing the President, as irrational as he is, would say no. So, the notion that Article II somehow trumps the Fourth Amendment is absurd. Let us not forget the 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibted by it to the States, are reserved to the States respectively, or to the people.
The Constitution did not give the President the power he has assumed as Commander in Chief.