Wednesday, December 21, 2005

2nd Amendment Repealed

Americablog tells us that:

The 2nd Amendment Has Been Repealed

(H/T to Jeff Maass)

The thrust of John's argument is that President Bush has broken the law, and compromised the U.S. Bill of Rights, in using NSA resources to listen in on telephone conversations between a "United States person" and non-United States people. I've listened to the commentary, I've read some of it (not all . . . this is NOT my day-job, y'know), and I've read the applicable sections of the Foreign Intelligence Surveillance act (FISA).

Here are the circumstances under which the cited NSA actions are legal:

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;
There's more, but FISA allows the President some unilateral authority as long as
  1. The surveillance continues for no longer than one year, and
  2. No "United States person is a party"
FISA doesn't seem to authorize the Presidential action, and I heard Rush Limbaugh this morning citing this section IN PART and out of context when he was arguing that the action was entirely legal. What I didn't hear Limbaugh include was any reference to the two points I high-lighted above.

This is extremely time-dated material, and much better researchers than I are busily poking around in United States Code, and historical documents, trying to discover the legal justification for this action.

It doesn't look good for the President in this situation at this time.

However, I'm not sure I can agree with John at Americablog when he argues by extention, implying that this 'sets a precedent' for Presidential abbrogation of the U.S. Constitution and specifically all articles of the Bill of Rights. I have reservations about this debating technique, which I consider a 'smoke and mirrors' move most often used by someone who realizes his logical position is weak. Also, I wonder why the 2nd Amendment is suddenly trotted out in a blog which hasn't mentioned RKBA during the preceding 19 days of December articles which I have read on that blog.

I'm not saying that the motives of the author are hidden; I'm just saying that they're not clear.

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