07 February 2006

Where exactly are your rights?

The following is written from a hospital bed under some pain and discomfort. A bit of it even due to being in that place!

Well, under the US Constitution your rights are vested in you, individually, as the People. Some rights are lent via the Constitution to the Federal Government, and some further to the State you live in. However, the Constitution is not a planet-wide affair. When looking at Casus Belli and invasion of territories previously, we came upon the accepted territorial concept of a Sovereign State, which includes all territory, waterways and airspace under its direct control, as well as Embassies as Extra-Territorial Sovereign enclaves. The bounds of that are traditionally the center of the Earth and the end of the atmosphere. So the Constitution of the United States is in force throughout that 3 dimensional spatial definition for its People. I refer to this as the Constitutional Zone of Control (ZoC).

Outside of the United States, we the People have designated certain powers to the branches of the Federal Government and restrict the States from having those powers. Thus, we speak as one nation, via the Constitutional channels of the Federal Government. I touched a bit on it in my post regarding the nature of when citizenship began and what rights and responsibilities the States have in that process. Congressional powers I have looked at previously in passing in the concept of how Amendment II fits into the rest of the Constitution and in the lack of Congress in using Letters of Marque and Reprisal; both looking at the Article I Section 8 enumeration of powers. Beyond those powers, only the regulation of foreign trade falls under Congress in Article I Section 9:

  • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The Executive, as laid out in my previous postings, has quite limited powers in number, although they are broad in scope. Beyond assigning Ambassador's and signing Treaties, the President also wears the Commander-in-Chief (CinC) hat. To restate, as it is pretty short, here are the Duties of the Executive in Article II Section 2 regarding the outside world (bolding mine):

  • The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
  • He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

And the Presidential Oath of Office in Article II Section 1:

  • Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

And Article III Section 2 grants the following to the Supreme Court (bolding mine):

  • The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
  • In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Now, much is being talked about with Amendment IV so here it is:

  • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And Amendment V has some to add:

  • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment XI gives some insight:

  • Note: Article III, section 2, of the Constitution was modified by amendment 11.
    The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

So, in short:

1) Congress - Declare War, Letters of Marque and Reprisal, create a uniform system for the military, appoint inferior courts, and regulate commerce with foreign countries.

2) Executive - Command in Chief duties for the military as sole commander. Protector of the Constitution of the United States (which has commonly been seen beyond just securing the document, but as to securing the Republic).

3) Judicial - Supreme Court as court of authority between the US and the outside world.

So lets take a look at a few general questions before moving on to meatier matters. This is a pretty interesting area, and is one of the clearest in the Constitution as it is meant to actually keep the Republic together. The People have handed over the decision powers to: wage war, sign treaties, judge problems and run affairs of the country in regulating Foreign commerce to the Federal Government. Excepted the Amendment IX and X rights that are not enumerated.

I was never much taken with the 'Aura and Penumbra' Right to Privacy issue when it is clearly an Amendment IX and X Right reserved to the People and their States. And one can assert that an individual has that same right to privacy in oversees contact from the United States ZoC. But since the enforcement of the Constitution is limited to the ZoC and to wherever US Forces are located, you really do not have such a right. Now Congress has mandated that communications between identified citizens overseas cannot be intercepted, one assumes under the Commerce powers. But, if there is no Treaty or other foreign agreement, to instantiate this, then Congress is just setting guidelines and not making enforceable Law.

So any communications, not covered by Treaty or the Congressional commerce regularization powers, will not give an individual legally in the United States *any* privacy in that communications once it leaves the ZoC. By the very nature of being a Republic, having a recognized Constitution under which the People have agreed to live, they also agree to the limitations of that Republic. In short, you have *no* expectation of privacy under anything not covered by Treaty and Commerce regularization when communicating outside the United States.

Now, this is not to say that the Government can spy on you without an authorization procedure. For all investigations aimed at prosecuting an individual under due process Congress has set up an inferior FISA court. This ensures any unwarranted searches and seizures within the ZoC. That said, the Executive does have broad powers BEYOND the due process procedures to preserve, protect and defend the ZoC via the outside using military and Ambassadorial means and internally via due process branches of government.

In short, you do *not* have rights outside of the ZoC if there is no means to enforce or protect them via Treaty or regularization of Foreign State commerce. Of course you are recognized your rights by military means and Embassies, wherever the US has them, but only by those personnel involved. The only other way for Congress to address this is via the Uniform Code of Military Justice, which applies to *all* military personnel. The CinC, however, is exempted from those controls where they conflict with Constitutionally granted powers. Congress does not, however, to extend the power of the Constitution outside the duly recognized ZoC save for Declaring War, Letters of Marque and Reprisal and its commerce means.

With all of this in mind, we can only now approach the NSA ongoings. The NSA is an explicit branch to help ensure the Executive's duty to preserve, protect and defend the Constitution. It must follow all interior ZoC laws set up by Congress. If it has means to intercept communications traveling from the ZoC to the outside world and wishes to follow the citizen to citizen communications language, then it may do so as long as those means are *also* outside the ZoC. Further, if those intercepts are made and not expected to result in due process procedures, it need not tell *anyone* about them.

For this to happen let me re-iterate: 1) the communications must not be covered by Treaty or international commerce statues enacted by Congress, 2) the communications may not be between ZoC components (such as overseas Embassies and the mainland US), 3) the interception must be solely outside of the ZoC, 4) such interception need not be reported to lesser courts established by Congress if there is *no* intention of starting due process procedures.

In short your rights are vested in you, but *recognized only* within the ZoC of the United States as it is recognized in the whole of its parts.

I have heard no arguments, as in none, that the NSA has:

1) Violated commerce provisions instituted by the Congress,

2) collected information for due process proceedings outside of the FISA court,

3) that the Executive has stepped beyond its bounds and sworn duties,

4) that Treaties have been violated that have been signed by Congress and the Executive.

To expect otherwise is to ask that Congress, the Executive and the Judicial branches become an Empire and scrap the Constitution. As the screaming and hollering and ranting and raving rise, I find that these making such a case clearly expect 4 initials instead of 3, and wish to replace USA with SPQR.

With themselves in power.

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