After reading Armando's diary
The Rule of Law, it became apparent to me (and obviously to Armando) that most of the American people have missed the boat as to what this scandal is really all about. The wire-tapping in and of itself is almost secondary to the real matter at hand (Although it is a disgrace). This scandal is about the President claiming the right to break the law of the land at his whim. Furthermore, I realized that I have not yet seen a clear, concise refutation of the Administration's claims that Article 2 of the Constitution grants this right to the President as the Commander in Chief during a time of war. There are several reasons why this argument is specious at best and patently outrageous at worst. I shall, for the sake of clarity and brevity, concentrate on two of them.
Follow me beyond the flip...
Article II, Section 2 of the Constitution of the United States says the following:
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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
(All emphasis is mine)
According to the Administration, the first part of this section of the Constitution (bolded above) grants the President, as Commander in Chief of the Armed Forces, the ability to selectively implement (or disregard) the law of the land in order to defend the American People. This argument preys on the fact that most people in this country really have no concept as to how the Constitution really works.
a-mend-ment n
1. The act of changing for the better; improvement: "Society may sometimes show signs of repentance and amendment" (George G. Coulton).
2. A correction or alteration, as in a manuscript.
3. a. The process of formally altering or adding to a document or record.
b. A statement of such an alteration or addition: The 19th Amendment to the Constitution gave women the right to vote
source: The American Heritage Dictionary, Fourth Edition
Take another look at number 3 in the definition listed above. According to this definition, an amendment to a document is a way to formally alter or add to said document. Therefore, the Fourth Amendment to the Constitution (Search and Seizure), along with the rest of the Bill of Rights, were written in order to formally alter or add to the principal document (the Constitution). They alter the entire document, including Article II.
The Fourth Amendment to the United States Constitution states the following:
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.
The Fourth Amendment to the Constitution (as you can see above) is very specific in its scope. It lays out under precisely what circumstances the government may search or seize the property of persons (note that it does NOT say citizens) and the legal mechanisms they need to adhere to in order to conduct such a search (a warrant issued upon probable cause). If you go back and peruse Article II again, you will note that Article II, Section 2 is nowhere near as specific or detailed in its scope. This will become important in a moment.
The Constitution was amended to address several issues that the founders and subsequent administrations felt were not detailed explicitly enough in the original document. Therefore, by its very definition, the Fourth Amendment takes legal precedence over the original document and is, therefore, the prevailing law. The President violated the Fourth Amendment of the Constitution of the United States by initiating illegal surveillance of Americans without obtaining a warrant first. In layman's terms, the President broke the law.
You'll note that the Fourth Amendment does not address the matter of non-citizens residing within the United States or the possibility of an American citizen working as an agent of a foreign government. In the wake of the Watergate scandal, Congress felt that it was important to outline another, even more detailed, set of rules governing the surveillance of American Citizens who may be agents of a foreign government (or terrorist group). In 1978, they (along with President Carter) drafted and passed the Foreign Intelligence Securities Act into law. The Foreign Intelligence Securities Act, or FISA, gave the government much more levity in the manner in which they are required to show cause to spy on an American citizen. It established a secret court which is presided over by Federal judges appointed by the President. Furthermore, it was no longer required that the government notify the individual being monitored that said surveillance was taking place until after the fact. This law has been subsequently amended to make it even easier for the government to initiate surveillance of suspected spies or terrorists. I shall not bore you to tears by including large excerpts of FISA but, suffice to say, it is VERY specific in its scope. This leads me to my next argument.
Allow me to preface this argument by stating unequivocally that I am NOT a lawyer, nor do I play one on TV. I have spoken about this issue with many of my friends who are attorneys though, and, to a person, they have backed the following argument where it deals with Constitutional Law.
According to 2 of my friends, both of whom are specialists in Constitutional Law, when a case arises in which 2 laws have a Constitutional conflict (meaning that the 2 laws could both be potentially construed to be the correct decision although they state different outcomes), the more specific of the 2 laws is ALWAYS considered precedent and, therefore, becomes the prevailing law for that matter. In regards to the Administration's argument, there are actually 3 prevailing laws that come into conflict with each other: Article II Section 2, the Fourth Amendment, and FISA. If you go back and look over Article II Section 2 and the Fourth Amendment again, it is rather easy to determine which of the 2 is more specific. In addition to the fact that the Fourth Amendment is FAR more specific than Article II, FISA is even more specific than the Fourth Amendment. Therefore, FISA should and must take precedence in the matter and be considered the prevailing law where the matter of spying on American citizens is concerned. The President's illegal program did not adhere to FISA (in fact it completely ignored it) and is, therefore, illegal. Once again, the President of the United States broke the law.
I hope this has been helpful to those of you who did not understand the intricacies of this egregious argument by the Administration and has supplied you with some ammunition to speak about it with others. Please feel free to disseminate any of the information found herein to anyone you feel needs a better understanding of this matter (read as: most of the electorate). I leave you with one final thought:
Violating a law involving subverting the Constitution of the United States of America is a felony. Perhaps, rather than concentrating on Section 2 of Article II, the administration should have paid more attention to Section 4 of the same article.
Article II, Section 4 of the Constitution of the United States:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Thanks for your time.