The DOJ argument is BULLSHIT, here's why:

The DOJ argument about enumerated powers under Article II of the Constitution is so much bullshit, to whit:

First off, Article V of the constitution is clear about what portions of the constitution amendments would affect:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

And thus, any implicit powers for a president during war enumerated within Article II of the constitution could explicitly be curtailed by any amendment to the constitution made at any time after ratification of the constitution, ergo, Amendment IV trumps claimed powers enumerated in Article II to whit:

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.

This turns the argument of the DOJ on its ear. It is a moot point because claiming power to search and seizure against the people of the United States under enumerated powers under Article II of the constitution CANNOT withstand the precedence of any amendment to the constitution.

The argument of the DOJ is not worth the paper it is printed on.

And that's not even taking into account the fact that this is not a time of war as defined by Article I, Section 8 of the Constitution!

has always been ridiculous.

do they think the founders to be complete idiots to not have envisioned war and made the provisions for war that they wanted?
if the founders wanted the president to have exceptional powers, to suspend rights, etc., during wartime, why on earth would they have omitted putting that in the constitution?

would be to amend the constitution and explicitly grant that power, because arguments about implicit powers in any article of the constitution cannot withstand explict protections of rights within amendments to the constitution.

much power the president actually has, especially in light of the vagueness of Article II and changing contexts. Consider the tragic injustice called "Korematsu v. United States."

This so-called war on terror is neverending. Do we simply give up our rights in the name of 9/11? God help us if fear so thoroughly controls our lives.

two world wars, more than two centuries of all sorts of changes, but 19 people make a suicide attack and suddenly we need a dictatorship for the next 40 years until "terror" is eradicated???

to them, they aim solely to confuse. This is a standard Rovian tactic he has been using since he was a kid.

Or put the way lawyers put it:

If you have the facts, argue the facts.
If you have the law, argue the law.
If you have neither, argue like hell.

so you're right, they are arguing like hell.

of the law...(ie torture, enemy combatants etc) One almost gets the feeling that they get together in a room and try to figure out how far of a stretch they can sell, even if its absolute and utter bullshit, and then with a straight face they go out and sell it as if its so "obvious".

When this is all over and our democracy saved, I think every single lawyer from Gonzales, to John Yoo, to Chertoff etc should be dis-barred and prohibited from practicing or teaching the law.

Because all I see in the Second Amendment is that the President is Commander in Chief of the military. How does that give him the power to spy on anybody?

implicit powers granted to him by the Authorization to use Military Force passed in the wake of 9/11.

As you can see, I turned that argument on its ear, and I'm not even an attorney!

"justice" hardly addresses the primary question ---- why circumvent the LEGAL process for gathering info in the first place?!

Even if we stipulate broad executive power as commander-in-chief, the FISA law and subsequent legislation establishes a LEGAL (secret and streamlined even) process for seizing information when carrying out that responsibility.

The question then is...why (not if) did they break the law?!

the only question left is, "why did they break the law?"

BTW, here's the law(s) they broke:

USC Title 50, Chapter 36, Subchapter I, Sections 1802, 1804, 1805, 1806, 1807, and 1808.

:applause:

Has it been expressed since the case of spying? (outside of Bus¨*s Q&A Do I have the authority? Yes I do)

I'm really curious what piptiful warkaround they have constructed.

Bookmarked & rec'd.

must read NOW

Thanks for this post, Walt. Your argument is like kryptonite to stupid. :yourock:

It is the very notion of America itself. They fled King George and created this country to get away from the lack of those things. And as such, these are the things that make up the actual definition of our freedom, our country, our reason for existing.

Am I wrong on that?

And this is why we even unconsciously find what has been happening to be so aggregious. It threatens the very thing called America.

Thank you Walt. You have been an invaluable source of inspiration to me, at leeast.

the Supreme Court said no-- the President is the Commander and Chief -- of the Armed Forces-- not of the USA and its people.

Nice post Walt-- K N R