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Thursday, February 9, 2006
Legal Justifications III: The Constitution
By Dr. Steven Taylor @ 1:53 pm

(Another post in an ongoing series of thoughts on the wiretap controversy and the legal and constitutional argument that surround it. Previously: Part I and Part II).

There are many things in the political realm that I find puzzling. These days one of them is the notion that seems to be floating out there in regards to the role of Congress in national security affairs by conservatives who also frequently argue for either originalism or strict construction vis-a-vis the US Constitution.

In that arena, I would note that it is awfully hard to argue that the Founding Fathers did not envision a significant role for the Congress in the overall area of national security policy.

In the list of powers expressly granted to Congress in Article I, Section 8 we have the following:

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 11 is interesting. The most I think about it, for example, the more I think that those who believe in a strict interpretation of the Constitution should insist on the resuscitation of this power-the US ought not be getting involved in actions like Korea, Viet Nam, Gulf Wars I & II, etc. without declarations of war from Congress.

However, the later portion of the clause is of interest in the current debate: “make Rules concerning Captures on Land and Water” might be construed as being applicable to the actions in the war on terror abroad, amongst other clauses listed above.

At a minimum, those (like some of my commenters) who seem to think that Congress has no role to play here are simply wrong.

As a side note, Clause 12 and 14 clearly allow the Congress to regulate the behavior of US troops (as in the McCain amendment on torture).

And, of course, there’s that whole Fourth Amendment thing:

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.

To be clear: I have never been concerned with the idea that we are listening in on foreign communications-the problem is that under the program as I understand it, US citizens on US soil are subject to wiretap without a warrant. Surely that violates the strict letter of the Fourth Amendment.

Hence: the solution is to find a legal way to acquire a warrant that allows for the surveillance in question.

Bottom line of all of this: there are serious constitutional issues at play here, and to deny that fact is to ignore the constitution and to focus on only what one wants the outcome to be (in this case, people want al Qaeda monitored, and seem willing to ignore other issues if those ends are achieved).


  1. “Surely that violates the strict letter of the Fourth Amendment.”

    The latest gobbledygook from the apologists of the warrantless wiretap program is that it’s simply “not unreasonable,” hence the Fourth Amendment does not even apply. You don’t want another 9/11, do you?

    Heaven help us…

    Comment by KipEsquire — Thursday, February 9, 2006 @ 4:16 pm

  2. A strict reading of the Fourth Amendment would suggest that it does not pertain to wiretaps.

    Comment by ATM — Thursday, February 9, 2006 @ 5:25 pm

  3. That would strike me as rather substantially strict interpretation. By that logic freedom of the press does not apply to broadast media nor to the internet, but only to, well, the press.

    Comment by Dr. Steven Taylor — Thursday, February 9, 2006 @ 6:18 pm

  4. But, if evidence it obtained through this process that persons in the US are involved, on what basis would arrest them if the evidence against them wouldn’t be admissible?

    Comment by Dr. Steven Taylor — Thursday, February 9, 2006 @ 6:19 pm

  5. There are two items of saliance in your post. One concerning Clause 11 “…Rules concerning Captures on Land and Water”. This could be construde that congress is responsible for the rules concerning the prisoners at Guantanamo and if Congress doesn’t like the milatary tribunals they must step up to theit responsiblities and make the rules.

    The other is about the gramatical construction of the forth amendment with the use of “…and…” as the conjuctive. Does and in this case mean “Together with or along with” or does it mean “in addition to; as well as; also.” The interpritation of this conjunctive can completly change the meaning and relationship of the two clauses that it connects.

    Comment by piscivorous — Thursday, February 9, 2006 @ 9:53 pm

  6. […] Taylor @ 7:12 pm

    (Part of a series of sorts: Previously: Part I, Part II, and Part III). This afternoon I was suffering surfing (although I think that was a Freudian typo) the radio and c […]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » Legal Justification IV: FISA — Friday, February 10, 2006 @ 7:18 pm

  7. […] ed the Congress to be involved in foreign affairs, I would also point anyone interested to a list I made last week. A plain reading of the Constitution of the United States reveals the fact the Founde […]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » Will is Right — Thursday, February 16, 2006 @ 9:17 pm

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