Eavesdropping ruling likely to be reversed
(Soapboxes are guest commentaries from our readers, and anyone is welcome to write one. Henry Kane is a Beaverton resident.)
Because the 'Constitution is not a suicide pact,' federal appellate courts likely will reverse a federal court ruling that eavesdropping on terrorists violates the U.S. Constitution.
Years ago, my then clients learned of 'time, place and manner' restrictions on First Amendment freedom of speech and expression.
The First Amendment to the U.S. Constitution states that 'Congress shall make no law prohibiting the…free exercise' of religion. However, numerous U.S. Supreme Court opinions restrict the 'free exercise' of religion under the guise of prohibiting an 'establishment of religion.'
In doing so, the high court ignores the plain meaning that Congress shall not enact a law creating an 'established church' supported by taxes and forced contributions.
Article 1, section 9, second paragraph of the federal constitution, provides:
'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.'
The U.S. Constitution is a political document. During the preceding two centuries, the high court has issued opinions contrary to the language of the U.S. Constitution to arrive at a result considered best for the nation.
Novelist Tom Clancy in 'Executive Orders' (1996) provides an authoritative answer to the recent Michigan federal courts ruling that the president's eavesdropping program to track terrorists violates the Constitution.
At issue in the novel is the constitutionality of the President's order halting interstate travel to isolate biological warfare agents that could kill 20 million Americans.
In language that could have been heard in the White House on the constitutionality of the terrorist eavesdropping program, 'Executive Orders' states at page 677:
'Mr. Secretary, the Constitution is not a suicide pact…'
'What changed your mind, Pat?' Ryan asked.
'Twenty million reasons, Mr. President.'
'If we flout our own laws, then what are we?' Cliff Rutledge asked.
'Alive,' Martin answered quietly. 'Maybe.'…
'If we violate our own Constitution,' Rutledge said, 'then nobody in the world can trust us! …'
'What kind of country are we going to turn over to our children if we-'
'What do we turn over to them if they're dead?'
'Things like this don't happen today!'
'Mr. Secretary, would you like to come up to my hospital and see, sir?'
Eventually, terrorists will obtain atomic weapons and attempt to explode one or more in major American cities.
The arguments made in the novel are relevant to the eavesdropping on terrorists issue.
The government attorney states at page 761 of 'Executive Orders:'
'The government cites Mr. Justice Holmes in the celebrated free speech case where he told us that the suspension of freedoms is permissible when the danger to the country as a whole is both real and present.'
'The Constitution… is not a suicide pact. The crisis that the country faces today is deadly, and it is of a nature that the drafters could not have anticipated. In the late 18th century, I remind learned counsel, the nature of infectious diseases was not known. But quarantining of ships at the time was both common and respected. We have Jefferson's embargo of foreign trade as a precedent, but most of all, Your Honor, we have common sense. We cannot sacrifice our citizens on the altar of legal theory…'
The first constitutional duty of a president is to protect the United States and its citizens. The challenged program helps protect the people of the United States against terrorists.
The Constitution cannot restore life to murdered terrorist victims.