Pardon Us for Internetus Interruptus.
As I was saying when I was so rudely interrupted…Anyhow thanks to Jake Parrillo our web-meister, we’re back. He’s the brilliant young man who keeps me on track. As you know, I’m a computer illiterate. I just write this stuff and send it to Jake for posting and recommend some photos. He does all the rest. For the benefit of all you who think I’m up at 5 in the morning posting this stuff, there’s a lot of duplicity here. It says “Posted by Tom Roeser at 4:45 a.m.” or something like that—but it’s really Jake who is not only much younger than I but much smarter about these things.
1st Amendment Panel 6 Years Running.
Let’s say that founding father John Jay helped me immeasurably yesterday. His Federalist 64 on the 1st amendment was the only briefing I needed to silence modern civil libertarians-gone-berserk.
For the last six years I have been part of a 1st Amendment panel of journalists, librarians, lawyers, ACLU people and at least one law professor who is an ex-jurist. We have met annually to discuss and debate where the 1st amendment is now, given the torturing that liberals and some civil libertarians allege is being meted out to the 1st amendment. I am glad to say that this was, in my estimation, the best panel that has been concocted. The moderator was, as usual, Judge William Bauer of the Seventh Circuit Court of Appeals. He is without doubt…walking with a roving microphone…the best moderator in the business—far better than Phil Donahue ever was: witty, incisive, the works. He was once, as you know, the U. S. attorney for the Northern District of Illinois, has been DuPage county states attorney, a county judge, then federal prosecutor, district judge and member of the court of appeals.
As our moderator Judge Bauer keeps his opinions to himself but he elicits repartee and healthy debate among the panelists. As the only conservative panel member…i.e. one who supports the administration in its obligation to defend us from terrorism…I didn’t feel outnumbered this year as I have in the past. Reason: even Judge Bauer commented on it at the end. I think our very liberal members have settled down and not felt the pressure of an incipient tyrant in the presidency as they used to feel.
Much of the difficulty which leads to misunderstanding is the way the liberal media phrases questions which are dramatized on TV and in the mainstream papers. You often hear the charge: “Is the president above the law?” by supporting warrant-less wiretapping of suspected terrorists. They mention this in connection with the Foreign Intelligence Surveillance Act (FISA). As I told the panel, the question of whether the president is “above the law” i.e. FISA is only one side of the question. An equal question is whether which law it is that he must see be “faithfully executed” as part of his charge. As you know the Constitution charges him with the duty to see that the laws shall be “faithfully executed.” When the first wiretap legislation was passed in 1968, the law stated clearly that nothing in its provisions would inhibit “the constitutional power of the president” to collect foreign intelligence information. In my view, there is a real question whether shackling federal authorities to have to go to a FISA judge who may or may not grant that power is not a inhibition of that power. I think it is, clearly.
It is a fact that Jimmy Carter as president engaged in warrant-less wiretapping. He changed and abrogated that power in deference to the Democratic congress. Attorney General Griffin Bell said that FISA did not take away the power of the president under the Constitution because…and this is important…because Carter had “agreed to follow the statute.” That was Carter’s prerogative. Just as it is Bush’s not to follow the statute. Remember that “Marbury v. Madison” says “an act of the legislature repugnant to the Constitution is void.” From the earliest days, it was understood by all three branches of the federal government that, in the words of Federalist 64, written by John Jay, it is the president’s prerogative to be “able to manage the business of intelligence as prudence might suggest.” This president is, I believe, correct in not surrendering that power to one or a number of unelected jurists. If anyone should have that power, it should be the one elected by the American people.
Judge Bauer asked…in line with his so admirably handling the panel questioning…well, given Marbury v. Madison’s contention that an act of the legislature repugnant to the Constitution is void…who is to say it is void but the judiciary? The answer is yes—but as an Originalist in the law, I would say that the decision should be self-evidentiary. He responded that the Constitution was enacted prior to wire-tapping. Answer: yes, but the concept phrased by Jay is the essential part whether wire-tapping is concerned or not: The president should be “able to manage the business of intelligence as prudence might suggest.” I had the feeling that so far as the panel was concerned, it was case closed. At least I did not hear a single word of rebuttal.
I was surprised, frankly, that having brought this up in the panel not a single member challenged this concept. That is not because of my eloquence but because, I feel sure, the position is unassailable. The rationale I followed is the same as argued by Robert F. Turner, co-founder of the Center for National Security Law and a former 3-term chairman of ABA’s Standing Committee on Law and National Security.
On the issue of “torture,” which is an issue liberals love to rail about without much basis, no one supports terror. But while it is entirely permissible to abhor it as an abstract, consider a familiar possible case: There is an announcement that a ticking time bomb is in a public building and scheduled to go off in about an hour. There is a definite possibility that a man the feds are holding knows where the ticking time bomb is. Question: does the federal government have the right to use every means possible…including some construed as torture…to determine where that ticking bomb is in order to save lives? Of course only a crazy person would aver that the government does not have the obligation and the right.
Having said that I waited for someone on the panel to object with a perfectly rational reply—but none came. So later I phrased the reply itself. The notion that the feds know definitely that such-and-such person knows where the ticking time bomb is, is conjecture. And of course it is. No one can apprise with certitude that the suspect knows where the bomb is—it’s all highly speculative. In order to find out whether or not he knows, the feds would have to apply interrogative processes on him to elicit that information. So it’ a chicken and the egg proposition. This grey area illustrates the complicated nature of the misnamed “torture” issue that offends so many liberals. Once again, the 1st amendment is not an absolute over all other amendments. Nor is it a suicide pact.
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