But, it's not the role of law enforcement to interpret the Constitution. So in cases such as this, where there isn't really any precedent or the law is ambiguous, the proper location for the decision is the courts.
> But, it's not the role of law enforcement to interpret the Constitution
You are correct that law enforcement does not provide the authoritative interpretation of the Constitution, but you seem to imply that they should operate under ignorance of the Constitution. This is wrong.
Law enforcement must have an understanding of the Constitution, and they must uphold it. For example, it's a dereliction of duty to always argue that any search is reasonable.
I implied nothing about the ignorance of the Constitution.
Law enforcement must have an understanding of all laws (for their jurisdiction), including the Constitution. However, when there is a legitimate question, it's not up to law enforcement to make the final judgement calls. It's for the judiciary to make that call.
It's fair to say that this is an argument that has been building for a while.
As such, it's very appropriate for the courts to make this call. And once that decision is made, it's up to law enforcement to act accordingly.
Note: I think the California court will reach the same decision as the Brooklyn court. But I don't have an problem with the DoJ/FBI raising the issue.
> However, when there is a legitimate question, it's not up to law enforcement to make the final judgement calls. It's for the judiciary to make that call.
That's not actually true. The executive and the legislature all have to swear to uphold/defend the constitution and it takes all three branches of government to violate it. If Congress says that something is unconstitutional and refuses to pass a law permitting it then the executive can't do it. (The FBI is nowhere in the constitution, its very existence is at the will of the legislature.) If the executive branch says that something is unconstitutional then they can refuse to do it. Nobody can force the executive to prosecute someone under a law they think is unconstitutional.
People only see the courts as the arbiters of the constitution because they're last. You only get there if the legislature is willing to pass the law and the executive is willing to enforce it. But that is a piss poor excuse for the other branches of government to neglect their oaths.
I [name] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
In order to support and defend the Constitution, you must have an understanding of what it means (unless you interpret the oath -- itself part of the Constitution -- to mean physical support and defense of the physical document.) To have an understanding, you must interpret. The oath, therefore, requires interpretation.
(Now, the Constitution itself gives the judiciary the role of resolving controversies arising under the Constitution, which includes disputes arising from differing interpretations. But people -- including executive officers -- have to have interpretations before they can get to the point where such a dispute arises for the courts to settle.)
> Technology will always be moving faster than courts can define how the law applies, and thus interpretation is a part of law enforcement's daily job.
Imagine using the same logic in gun control. Imagine there were no laws against certain kinds of ammunition and law enforcement just went around saying certain guns are illegal just because what was in the officer's coffee that morning. People always throw around the phrase "we're a constitutional republic, not a democracy" when I say the Connecticut compromise ought to be scrapped but the same people are for a massive overreach by law enforcement.
Imagine someone shot and killed you in the street for no reason and said they thought it was their right. Would that absolve them? No. Neither should this kind of overreach by the FBI be legal.
There is the situation where defending the Constitutional order against a clear threat most effectively demands actions that are questionable impinge on some rule of the Constitution, in that case, its at least arguable that working right up to the limit -- and perhaps even testing the limit -- is demanded.
Clearly, gratuitously testing the limits of the Constitution is not demanded by the oath, but I don't think that that's the claim Comey was making. (Note, I'm not saying that I agree that this is a case where a rational expectation of the value of breaking into the phone in question to protecting the U.S. and its Constitutional order does justify testing the limits of law enforcement authority, I'm just pointing out that its not unreasonable to think that there are situations in which upholding the oath might reasonably be seen to require testing the boundaries of Constitutional authority.)
> There is the situation where defending the Constitutional order against a clear threat most effectively demands actions that are questionable impinge on some rule of the Constitution, in that case, its at least arguable that working right up to the limit -- and perhaps even testing the limit -- is demanded.
Which, while technically correct (The Best Kind Of Correct), isn't the sort of thing the FBI runs into very often. Because the FBI is not constitutionally obligated to succeed in apprehending every criminal. If the FBI wanted to embody the principle of letting 10 guilty men go free before convicting one innocent then they would in practice run into a lot fewer prickly constitutional edge cases.
I think it's a good thing my doctor doesn't stab me in random places to defend my health. There might be some case where that's good medicine but I'm having a hard time with concrete examples.
It's the role of all three branches of government to interpret and obey the Constitution. The courts are just the ones with the final say on which interpretation gets accepted.
> Honestly, intentionally doing anything that you knowingly believe to be against the Constitution should be a fire-able offense.
Its already not merely a firing offense but a federal felony for law enforcement officers and other public officials, but the FBI is the lead agency enforcing that law, so its probably unlikely to be as effectively enforced when the Director of the FBI is involved. [0]
Not taking sides here, but this view is fine as long as everything is explicitly detailed in unambiguous language.
For example, the 4th Amendment protects against "unreasonable" search and seizure. There is a lot of leeway in what is or isn't reasonable.
If you believe in the system you should be glad it is going to the courts - it is the job of the judicial branch to interpret the law. And however it comes out will be a precedent for the future.
Upholding the Constitution is basically your primary job responsibility in Law Enforcement and the Military. No other duty should supercede that duty.