NSA and the "Void for Vagueness" Doctrine
I am getting so sick of the ridiculous caterwauling of the leftists in the Mainstream Media about the supposed illegality of the NSA "wiretapping" program President Bush authorized after 9/11. Let's put aside whether the program was useful in combatting terrorism -- every reasonable person concedes that it was. Let's also put aside questions of whether the program was constitutional under the President's inherent powers as Commander in Chief -- I think it was, but perhaps reasonable people could differ. Let's also put aside the many factual questions of its actual scope and application -- if it's only calls to or from known al Qaeda members outside of the U.S. to sympathizers/co-conspirators inside the U.S., then most people would agree that it was a reasonable thing to do.
No, the question that is pushed by the Left is whether the program was illegal, whether someone committed a "crime" by wiretapping U.S. citizens in contact with Al Qaeda, and whether such a "crime" would be enough of a "high crime and misdemeanor" to impeach President Bush.
Here, to me, is the relevant quote from the relevant Supreme Court authority, not on the legality of wiretapping under these circumstances in a post-FISA world -- there are no Supreme Court precedents on that question -- but instead on the more basic question of whether President Bush's program could constitute a crime of any kind:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). This is what is known as the "void for vagueness" doctrine, a very basic legal doctrine that holds that you simply can't charge people with a crime if the law as written is so vague that the citizen can't tell what constitutes a crime and what doesn't.
Under the "void for vagueness" doctrine -- and given the substantial body of appellate level cases holding that Presidents possess inherent authority to wiretap without warrants for purposes of obtaining foreign intelligence information, the history of Presidents in the post-FISA era of both parties asserting that authority, the more general history of Presidents being given broad authority in wartime, and the relatively incomprehensible nature of FISA as written -- it seems painfully clear to me that no crime could be alleged against any member of the Bush administration, and that any such prosecution would violate their due process rights.
No, the question that is pushed by the Left is whether the program was illegal, whether someone committed a "crime" by wiretapping U.S. citizens in contact with Al Qaeda, and whether such a "crime" would be enough of a "high crime and misdemeanor" to impeach President Bush.
Here, to me, is the relevant quote from the relevant Supreme Court authority, not on the legality of wiretapping under these circumstances in a post-FISA world -- there are no Supreme Court precedents on that question -- but instead on the more basic question of whether President Bush's program could constitute a crime of any kind:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). This is what is known as the "void for vagueness" doctrine, a very basic legal doctrine that holds that you simply can't charge people with a crime if the law as written is so vague that the citizen can't tell what constitutes a crime and what doesn't.
Under the "void for vagueness" doctrine -- and given the substantial body of appellate level cases holding that Presidents possess inherent authority to wiretap without warrants for purposes of obtaining foreign intelligence information, the history of Presidents in the post-FISA era of both parties asserting that authority, the more general history of Presidents being given broad authority in wartime, and the relatively incomprehensible nature of FISA as written -- it seems painfully clear to me that no crime could be alleged against any member of the Bush administration, and that any such prosecution would violate their due process rights.
posted by PDB at 11:45 AM
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