Semper Fi

  • usmcinsignianavalaviator

My Favorite Posts

« The Latest from Uncle Joe | Main | Federal Agents Under Our Beds »


Doc Rampage

It's illegal for the president to order someone killed isn't it? But when we are at war, he can order someone killed as part of the war effort. What I don't understand is why keeping prisoners and tapping phones are supposedly more out of bounds than having someone killed.

Is there actually some legal reason for this? Are there special laws that say "this activity is not allowed even under the authority of war powers" or do people just think that that eavesdropping is naturally more serious than having someone killed so it has to be treated with special delicacy?


There are all sorts of distinctions, Doc. Certainly under the use of force authorization the President had the right to have Bagdad bombed, which was certain to kill some people. But he can't--for example--order you killed without breaking a lot of laws.

But I agree with your main point. We are at war with real bad guys, and this carping about how we are "maybe" violating the rights of terrorists who are dedicated to killing us by listening to their phone conversations denots a lack of seriousness.

Doc Rampage

Well, presumably Bush couldn't order me killed because that would not serve any justifiable war ends that could not be accomplished in a more gentle manner. But the president can order all kinds of things under the authority of his war powers that he wouldn't be allowed to do under normal law.

What I'd like to know is where this distinction between his other powers and the wire-tapping power comes from. I'd think that gathering intelligence in pursuit of the enemy was one of his war powers. Isn't it? And if it is, why would it be treated specially in terms of following the law? Are there specific laws that say the president can kill people in war but can't tap their phones? Where does the distinction come from?


Doc - I don't think the distinction is between Bush's various Article II powers, I think it is between where those powers are executed, and against whom. Getting back to the killing you analogy, he couldn't kill you without comporting with due process (you have a constitutional right not to be deprived of "life" without due process of law). But if you moved to Bagdad and joined Al Qaeda, Bush could order you killed without answering to anyone.

Exactly where the line between where Bush can execute his war powers and where he can't is currently located is a complicated issue that I haven't attempted to figure out (and many aspects of it really haven't been decided yet). But certainly Bush can legally take steps dealing with non citizens in foreign countries (especially during a state of war) that he can't legally take against citizens here at home.

As to where the distinction comes from, I think a lot of places, statute, the Constitution, history and just common sense. For example, in my post I talk about how FISA distinguishes between activities here and overseas. Some of the president's power over foreign relations and to make war are derived from Article II. But a lot of the distinction "just grew" from common sense. Executives of countries have always had the right to search incomming parcels, make war, and engage in spying, so everyone assumed our president could do that too. Later court decisions have largely gone along.

The comments to this entry are closed.

Funny Stuff

The Bear Flag League

Blog powered by Typepad