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Those Warrantless Wiretaps
Posted by: Dale Franks on Monday, December 19, 2005

Much uproar has followed the revelation that the NSA has been spying on American citizens, sans warrants, and some of that uproar has appeared on this blog.

Jon Henke:
Naturally, many people will jump to defend the administration, pointing out that, you know, terrorists and evildoers and national security and what're you, some kind of traitor who wants another 9/11? They'll continue making that argument until, say, Hillary Clinton ascends to the White House and it occurs to them that, hey, maybe giving the Executive Branch near-unlimited power to reinterpret and/or flaunt the laws might not be such a great idea after all...

President Bush admits he ordered the Code Red. See here for the similarities between Bush's assertion of near-complete Executive Power and Colonel Jessep's disdain for people who sleep under the blanket of the very freedom that he provide, then questions the manner in which he provides it.
I must strongly disagree with my Brother Henke, who is incorrect as a matter of both law, and Constitutional interpretation.

First, let's review the relevant portion of the Constitution. The 4th Amendment states:
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.
Note the language of the text. The constitution does not say that people will be free from all warrantless searches. They shall be free from unreasonable searches. Warrantless searches and seizures are conducted every day in the United States, under a variety of reasonings, such as exigent circumstances, searches incident to arrest, etc. Much of the uproar over this policy seems to stem from an assumption that all searches require warrants. This is simply untrue, and has never been true. Warrants are generally required, but not always required.

The constitution does not say that people will be free from all warrantless searches. They shall be free from unreasonable searches.And those exceptions apply for criminal proceedings, where the accused faces the loss of life or liberty as a penalty. But we are not talking about criminal penalties or sanctions in this case. The surveillance is used solely to gather intelligence, and not to proceed with criminal charges against the surveillance subjects. Absent their use in punitive proceedings, I think that there is probably a fair amount of Constitutional wiggle-room for such surveillance. Naturally, in cases where criminal prosecution might be warranted, then I think you'd have to go through the FISA process, in order to obtain a warrant that could be used to gather admissable evidence.

The only question in this case, then, is whether the president can, as commander in chief during a time of war or insurrection, order surveillance of American citizens who are in communication with the enemy, for the sole purpose of gathering intelligence about enemy intentions, and where no criminal jeopardy ataches to the surveillance subject.

As Justice Robert Jackson wrote in his concurrence in the Steel Seizure Case, Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) :
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. 2 In these circumstances, [343 U.S. 579, 636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government [343 U.S. 579, 637] as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
In the absence of explicit congressional authority to engage in the surveillance of American citizens who have contact with Al Qaeda overseas—or forbidding it—the worst that can be said is that the president is in a gray area, as Justice Jackson outlines in number 2, above. Moreover, since there is no case law that is on point, as far as I know, anywhere in the history of American jurisprudence, blanket statements that the president's actions are dangerously unconstitutional seem...ungrounded in reality.

However, the president seems to have few doubts about the legality of his actions. Frankly, this seems like a more tenable position than the argument that the president has broken the law in some way—especially since there's no case law specifically on point. This is especially true when you consider the relatively wide latitude the Court has given to presidential powers in wartime. Indeed, I refer you specifically to Hamdi v. Rumsfeld, No. 03-6696 (2004), in which the court held that Mr. Hamdi's detention was legal...
...because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF.
If the detention of American citizens who have contacts with Al Qaeda is authorized by the AUMF, then the president clearly has a colorable argument that the less intrusive surveillance of such persons is equally covered under the AUMF.

If the detention of American citizens who have contacts with Al Qaeda is authorized by the AUMF, then the president clearly has a colorable argument that the less intrusive surveillance of such persons is equally covered under the AUMFA brief gedankenexperiment here is helpful. In WWII, would President Roosevelt have been authorized to surveill, without warrants, American citizens belonging to the German-American Bund who had contacts with Nazi officials? Clearly, he not only was, he did. There were a number of cases in which the FBI intercepted, read, and obtained evidence from the mail of American citizens who were in contact with the Nazi government.

The president's position—and again, there is nothing in the case law, as far as I know, to contradict it—that a president, in wartime, can, as commander in chief, authorize the secret surveillance of American citizens who are in contact with hostile foreign powers. And, again, if, as Hamdi indicates, the president can detain American citizens who have contact with hostile foreign powers, then the lesser intrusion of surveilling such citizens would logically seem to be part of the president's wartime powers.

The countervailing argument is that FISA prohibits such surveillance. However, the president's argument that he is completely authorized to conduct warrantless surveillance is not without support in the FISA Act itself. As James Robbins points out:
But the legality of the acts can be demonstrated with a look through the Foreign Intelligence Surveillance Act (FISA). For example, check out section 1802, "Electronic Surveillance Authorization Without Court Order." It is most instructive. There you will learn that "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" (emphasis mine).

Naturally, there are conditions. For example, the surveillance must be aimed at "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers." Wait, is a terrorist group considered a foreign power? Yes, as defined in section 1801, subsection (a), "foreign power" can mean "a group engaged in international terrorism or activities in preparation therefore," though the statue language would explicitly apply to "a faction of a foreign nation or nations."

But isn't international terrorism that which takes place abroad, as opposed to homegrown domestic terrorism? Not exactly: Section 1801 subsection (c) defines international terrorism as, among other things, terrorist actions that "occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum." So if you are hiding, making plans, facilitating, attacking, or intending to spread fear inside the US, and have a link abroad, you are an international terrorist. Quite sensible.

O.K. fine, but what about the condition that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party?" Doesn't that necessarily cut out any and all communication that is domestic in origin or destination? Well, not quite. Return to section 1801, subsection (i): "United States person," which includes citizens, legal aliens, and businesses, explicitly "does not include a corporation or an association which is a foreign power."

Well sure, but does that mean that even if you are a citizen you cash in your abovementioned rights by collaborating with terrorists? Yes you do. You have then become an "Agent of a foreign power" as defined under subsection (b)(2)(C). Such agents include anyone who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power," and even includes those who aid and abet or knowingly conspire with those engaged in such behavior.

Wait, that includes anyone, even citizens? Yes — subsection (b)(1) is the part that applies to foreigners; (b)(2) covers everybody. And the whole point of the act is to collect "foreign intelligence information," which is defined under section 1801 subsection (e)(1)(B) as "information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against sabotage or international terrorism by a foreign power or an agent of a foreign power."
So, even in peacetime, the administration argues, under the FISA, the president is authorized to surveill without a warrant, for up to a year, an American citizen who is an agent of a foreign power, because his afiliation with such power removes exempts him from being a "United States person". If that is so of the FISA in peacetime, then, absent any relevant case law, the president has a colorable argument that his role as wartime commander in chief authorizes him a somewhat expanded power to conduct such surveillance, considering the latitude that FISA gives him in peacetime.

The shortfall in this argument is that 50 USC 1802 does not define an international terrorist organization as a "foreign power" for the purposes of warrantless surveillance, which a big problem for Robbins' argument. In fact, §1802 defines a "foreign power" for the purpose of warrantless surveillance as:
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments
Ah, but, FISA explicitly authorizes statutory exception to the surveillance requirements in 50 USC 1809, stating, "A person is guilty of an offense if he intentionally...engages in electronic surveillance under color of law except as authorized by statute." Since, in Hamdi, the Court held that the AUMF was a statutory act authorizing Mr. Hamdi's detention, the Administration can further argue that, in light of that, the AUMF constitutes the statutory exception allowed by FISA to conduct such surveillance. The argument would be that the AUMF supercedes 50 USC 1802's restrictions on the definition of a foreign power by adding 1801(a)(4) to the list of organizations defined as "foreign powers".

Where the problem would come in—and I think it's the major area that would be problematic—would be if the president was conducting the warrantless surveillance of citizens who could not, in fact, be shown to have contact with hostile foreign powers. Or, conversely, if these surveillance wiretaps were to be introduced as evidence in a criminal proceeding. In that case, I think the warrantless wiretaps would certainly have to be thrown out.

In the end, whether this will be ruled a violation of FISA will depend very much, I think, on how much deference the Court is willing to extend to the president as Commander in Chief during wartimeAbsent that, it seems to me that the relevant case law, while not precisely on point, gives the president an excellent argument in support of his actions to conduct such surveillance, purely for intelligence-gathering purposes. Ultimately, the Court may not accept the administration's argument—although Hamdi makes that by no means certain—but to baldly state, as some have, that this is a clear case of a legal violation by the Administration, is mere bluster. I think it's completely clear that this is not a 4th Amendment violation, and, the question of whether it is a violation of FISA is eminently debateable.

Moreover, the Administration can—and will—certainly argue that the president's constitutional wartime powers include the right to surveill enemy combatants and sympathizers, even if they are US citizens. And this gets us into another very gray area. Essentially, the administration's argument is that Congress cannot impose binding statutory restraint on the president's war powers that go beyond the scope of the 4th Amendment. There's no clear guidance in the case law, as far as I know, as to whether that argument is true or not. No doubt, though, the administration, as Orin Kerr (who tentatively concludes that this surveillance does violate FISA) has pointed out, will cite US v Truong, 629 F.2d 908:
In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.
But the question of whether Congress can bind the president's wartime powers to conduct such surveillance, even of US citizens, is not reached by Truong, or by any other of the cases the Administration cites. The central question of whether the President's Article II powers of intelligence surveillance in wartime override FISA, or any other statutory restriction, is not directly answered by any relevant case law. But, based on the indirect case law, like Truong and Hamdi, the argument that the President's Article II wartime powers cannot be Constitutionally restricted by Congress by statute is not an outlandish one. They further will argue that such surveillance is an incident of wartime, military action, and not a criminal proceeding, in which case the standard for such surveillance is fundamentally different, and indeed, fundamentally different from the FISA requirements, which really address peacetime intelligence gathering, not wartime military intelligence. And they will have much support for that argument from our domestic military intelligence-gathering practices during WWII. Additionally, the administration will probably throw in the argument that the "border search" exception to the 4th Amendment explicitly authorizes the government to conduct warrantless searches of communications leaving and entering the US, and the case law seems to support that argument. Finally, as Orin Kerr comments, the administration also has a shot at arguing that there is, in fact, a national security exception to the 4th amendment that allows the government to conduct warrantless surveillance for foreign intelligence gathering on communications that go to or come from outside the US, something the Supreme Court has also never addressed.

In the end, whether this will be ruled a violation of FISA will depend very much, I think, on how much deference the Court is willing to extend to the president as Commander in Chief during wartime. In any event, it certainly isn't an open and shut case, no matter what position you take.
 
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The sticking point is the meaning of "foreign power" which this article quite clearly shows is more restrictive than your analysis makes it out to be. Just saying the magic words "al Qaeda" doesn’t make someone an agent of a foreign power immediately subject to extrajudicial surveillance, detention, torture and whatever else the executive branch is itching to do.
 
Written By: Platypus
URL: http://pl.atyp.us
Even if it turns out that this program wasn’t legal, it’s not exactly like Bush assumed "unchecked dictatorial powers" (phrase from some a-hole reporter today)...I’m sure the issue is murky enough that a credible case could be made either way truth be told. I’m sure we’ll be seeing his legal basis more fully, and I’d bet it’s no decently solid ground.

In the meantime, I want the names of the Dems who were briefed about this and said bupkiss...but are now yelling like loons.

Let THEM take some heat
 
Written By: shark
URL: http://
The sticking point is the meaning of "foreign power" which this article quite clearly shows is more restrictive than your analysis makes it out to be. Just saying the magic words "al Qaeda" doesn’t make someone an agent of a foreign power immediately subject to extrajudicial surveillance, detention, torture and whatever else the executive branch is itching to do.
Well, again, my "expansive analysis" rests on the plain text of the statute, that defines a foreign power as follows:
As used in this subchapter:
(a) ’’Foreign power’’ means -
(1) a foreign government or any component thereof, whether or
not recognized by the United States;
(2) a faction of a foreign nation or nations, not
substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign
government or governments to be directed and controlled by such
foreign government or governments;
(4) a group engaged in international terrorism or activities
in preparation therefor;
(5) a foreign-based political organization, not substantially
composed of United States persons; or
(6) an entity that is directed and controlled by a foreign
government or governments.
Please note number 4. That’s not an expansive reading. That’s the plain text of the statute.
 
Written By: Dale Franks
URL: http://www.qando.net
Now we have Dale Franks interpreting the 4th Admendment as saying that no Warrants are actually "required" by the Constitution.
I defy you to point out anywhere where I stated, or even implied, that warrants are never required. My only point was that warrants are not always required. That is hardly the same thing.

Reading for comprehension isn’t your strong suit, is it?

 
Written By: Dale Franks
URL: http://www.qando.net
Dale, with the understanding that this is legal, is it actually good? I mean, I don’t think it is, but I certainly haven’t heard people up in arms over the 1978 Foreign Intelligence Surveillance Act, which really wasn’t much worse than FISA.

Civil libertarians of all stripes and parties were pretty upset over Carnivore (remember that?), which isn’t specifically mentioned in the Patriot Act to my knowledge, but I’d really like to know how that has been implemented since the Patriot Act. And - for you Dems - was it okay in its old form, back under Clinton? Just curious.
 
Written By: Wulf
URL: http://www.atlasblogged.com
Be afraid. Be very afraid. This powerful United States Senator could not tell anyone. Not his lawyer. Not even another Senator. Nobody:
What Senator Rockefeller could’ve done, however, was introduce legislation to ban such surveillance. I note that he made no such attempt to do so.

I also suspect that any such legislation would’ve been voted down, and suspect Sen. Rockefeller is fully aware of that fact.
 
Written By: Dale Franks
URL: http://www.qando.net
Dale, with the understanding that this is legal, is it actually good?
That’s a good question. What you are really asking is, do we want the president of the United States to have the ability to wiretap people who are in contact with hostile foreign powers?

I think the answer is, for intelligence-gathering purposes...yes. For criminal prosecutions...no.

But in the proximate case, these wiretaps were used solely for intelligence gathering purposes.
 
Written By: Dale Franks
URL: http://www.qando.net
And our 4th Amendment states "not always" exactly where now? I missed that line.

Um, where do you see it stating "always", Book? As Dale pointed out (right below the text of the 4th Amendment in his article), this happens all of the time. Did you read it?
 
Written By: Wulf
URL: http://www.atlasblogged.com
And our 4th Amendment states "not always" exactly where now?
That’s where the word "unreasonable" comes in. That’s why warrantless searches are allowed for a number of reasons, even in criminal cases. If warrants were "always" required, there wouldn’t be an "exigent circumstances" exception, would there?

The 4th amendment provides protection from ’unreasonable" searches. Not from "all" searches. Presumably, the Framers had a reason for phrasing it in that way, and that’s why the law recognizes a number of exceptions to the general rule of applying for search warrants.

Again, read for comprehension. It’s so much more helpful that way.
 
Written By: Dale Franks
URL: http://www.qando.net
Platypus —

RE: Greenwald’s essay. James Robbins, it turns out, reached the same conclusion I did—namely, that "US person" as a classification is contingent rather than absolute. Glenn begs the question when he says that US citizens cannot be surveilled without the warrant; because at least some readings suggest that those who are being surveilled without the warrant are no longer considered US citizens by virtue of their ties to a foreign power engaged in war with the US.
 
Written By: Jeff G
URL: http://www.proteinwisdom.com
RE: Greenwald’s essay. James Robbins, it turns out, reached the same conclusion I did—namely, that "US person" as a classification is contingent rather than absolute. Glenn begs the question when he says that US citizens cannot be surveilled without the warrant; because at least some readings suggest that those who are being surveilled without the warrant are no longer considered US citizens by virtue of their ties to a foreign power engaged in war with the US.
I think that’s a bit of a stretch. It’s pretty clear that, with the exception of naturalized citizens in cases of naturalization fraud, the government has no power to remove American citizenship. An American citizen can reject his citizenship, but the government cannot unilaterally make a US citizen Staatenloss.
 
Written By: Dale Franks
URL: http://www.qando.net
Remember when we only had to debate the meaning of the word "is"?
 
Written By: James Wright
URL: http://
Remember when we only had to debate the meaning of the word "is"?
 
Written By: James Wright
URL: http://
For Book Adams, who seems to think the 4th Amendment requires warrants in all cases:
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.
The amendment does not state that warrants must be issued in order for a search or seizure, it only states that when warrants are issued there must be probable cause for them.

There are plenty of warrantless searches and seizures that are quite constitutional. One example would be a police officer arresting someone in the middle of committing a crime. That’s a seizure...without a warrant...and perfectly acceptable.
Lemme guess: When Dale Franks reads "the right of the people to keep and bear arms shall not be infringed" he reads the people and sees "not always" too?
The difference is the word "unreasonable". That doesn’t appear in the 2nd amendment, but it does appear in the 4th. Which would mean that the framers of the Constitution felt the right to keep and bear arms was even more important than the right not to be searched.
 
Written By: Steverino
URL: http://steverino.journalspace.com
So...my inability to see your "not always" written in our 4th Amendment somehow indicates my failure to read for comprehension?
Yes, it does, by ignoring the qualifier "unreasonable". And, of course, it seems to completely escape you that warrantless searches are completely legal in a number of circumstances, even in criminal cases.

Unless you are arguing that the above is not true, then your attempted point is simply silly. There is not, and never has been, a universal requirement for warranted siezures in American law, at any time since the Founding.

That you ignore this seems to be a pretty big—and obvious—hole in your argument.
 
Written By: Dale Franks
URL: http://www.qando.net
Lemme guess: When Dale Franks reads "the right of the people to keep and bear arms shall not be infringed" he reads the people and sees "not always" too?
I would if it said, "the right of the people to keep and bear arms shall not be unreasonably infringed". The use of the word "unreasonably" would, in common language, imply the acceptability of reasonable infringements.

Is English not your first language?
Boy...reading comprehension for us non-Dales isn’t very helpful.
I don’t know if that is universally true. But it appears to be true in your particular case.
 
Written By: Dale Franks
URL: http://www.qando.net
This story has no weight without more specifics. There’s enough exceptions out there to have a healthy sized program and still be legal/constitutional. I’ll concede that because it could have been conducted legally, doesn’t necessarily mean it was. You would need detailed specifics to determine if any violations occurred.

This is probably why the NYT sat on the story. They it knew it was outrageous and a headline grabber but ultimately would fizzle out from lack of specifics. Bush can’t reveal the specifics without damaging the intel situation further. This cuts both ways. Bush could hide wrongdoings by not releasing specifics. Or, the NYT could imply grand constitutional violations when there are none and still accuse Bush of the former to boot.

Regardless, in addition the manipulative timing of the article it ultimately had nothing but shockvalue and will go nowhere. With the exception of destroying the usefulness of the program.


As a side note: I have a tough time finding solid accusation from the original NYT article that what happened was ever illegal)
link
- Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
Not exactly a solid claim for such a serious [implied] alligation to a serious issue. In fact, much of the rest of the article appears to utilize induendo and "concerns" without anyone actually solidly saying anying illegal did happen. So the NYT either doesn’t know if anything illegal happened, but they ran with the story anyway.
 
Written By: John
URL: http://
I’m still trying to sort all this out, but for what it’s worth Orin Kerr over at The Volokh conspiracy tentatively concludes that Bush’s executive order does violate FISA.

I’ll continue to follow the discussion.

 
Written By: Freeven
URL: http://mentalhiccups.blogspot.com/
Dale;

And the word "Unreasonable" seems at the heart of the matter.
The laws as laid out, and as followed by the Administration are not unreasonable, nor are they unconstitutional. They’ve been around since the Peanut Farmer ran the place, and nobody’s bothered to bring complaint about them to the USSC, or even to the news media, before now.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
You make a good argument, Dale, and I recognize that there’s certainly a case to be made that the law can be constructed in such a way that this behaviour can be interpreted as legal. I find such a salami slice construction of legality very problematic, though.

The administration didn’t pursue specific authorization for this because they knew they wouldn’t get it, which makes the stretches involved in their interpretation more apparent.

We’ve often pointed out that, though they may be logical fallacies, slippery slope arguments have a lot of merit when it comes to government. The income tax, for example, was instituted on these kinds of grounds—temporary necessity, you understand; won’t apply to many of you at all, nothing to worry about, Congress already sorta has that right, etc. And it grew from there.

In government, precedent is prophecy. There seems to be sufficient precedent that colorable arguments can be made to authorize this expansion of Executive authority. It seems to be the consequence of thousands of salamic slices, rather than of legislative intent.

I fear that, by arguing in favor of the plausabilities, we’re cutting too deeply. We’re moving towards the legal paradigm wherein this...
While I was at CSE, a classic example: A lady had been to a school play the night before, and her son was in the school play and she thought he did a—a lousy job. Next morning, she was talking on the telephone to her friend, and she said to her friend something like this, ’Oh, Danny really bombed last night,’ just like that. The computer spit that conversation out. The analyst that was looking at it was not too sure about what the conversation w—was referring to, so erring on the side of caution, he listed that lady and her phone number in the database as a possible terrorist.

KROFT: This is not urban legend you’re talking about. This actually happened?

Mr. FROST: Factual. Absolutely fact. No legend here.
...is just legally peachy keen.

That’s a practical argument, not a legal one. For the legal arguments, you know where to turn. Etc, etc. The Bush administration is certainly toeing the legal line here. Whether they’re going over it, standing on it, or just this side of it depends on a lot of interpretive construction.
 
Written By: Jon Henke
URL: http://www.QandO.net
What Senator Rockefeller could’ve done, however, was introduce legislation to ban such surveillance. I note that he made no such attempt to do so.

So, just to be sure of my comprehension,you’re saying that Rockefeller’s failure to introduce legislation translates to his accedence?
 
Written By: PogueMahone
URL: http://
who wheee....I’ve read convoluted legal diatribes before (as a paralegal) but what I fail to see is what "war powers" were ever granted the President.

This is not a war. It never was ’war’. War is a legal term. One can never compare what we did in WWII with today because one was a legitimate war (only Congress can ’declare’ war. Until that time the ’war on terror’is just another ’word’ war like the "War on drugs"), whereas this one is not ’legitimate’ war. Congress gave the President the authority to use force as his LAST result, and Bush used it as his first. Now he blames Democrats for ’not stopping him’. Bush has some stones, I’ll give you that much....

The president does NOT have clear Congressional authority to authorize middle managers to issue warrantless searches. Show it and I’ll buy parts of the arguement.

Until then, the post is stretching and distorting the nuance of language to a point of obscuring the original intent of the Amendment. Sheesh, take that sh*t back to Havana!

I would rather die from a thousand arab bombs than have this gang of slugs shred the Constitution.

Better to die free than live in chains, eh?
 
Written By: Rick D.
URL: http://
So, just to be sure of my comprehension,you’re saying that Rockefeller’s failure to introduce legislation translates to his accedence?
At the least, we should have heard some peep of discontent from him, if it was such a big deal. Tell me, at what point in the past, has the area betrween the news cameras and microphones and Rockefeller, EVER been safe to stand in? He’s NEVER been shy about screaming blooy murder about anything on his mind at any other time in his history, particularly since the Republicans have been cleaning the clocks of the Democrats.
This is not a war. It never was ’war’. War is a legal term
The courts seem to disagree, as has been pointed out in another thread.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Yes, it does, by ignoring the qualifier "unreasonable". And, of course, it seems to completely escape you that warrantless searches are completely legal in a number of circumstances, even in criminal cases.
If I could make a very simple example. A cop pulls over a driver that has been driving in manner consistant with being under the influence. As the cop approaches the vehicle he shines his flashlight in the back seat and on the frontseats and floorboards. He is looking to see if anything which can be used for a weapon is readily accessible. That is a search. It is a warrantless search. It is permitted for the reason of officer safety. The officer is not allowed to search the trunk of the vehicle even though there is a gun there. The reason being is that it is not readily accessible. Does that sound reasonable?
 
Written By: tom scott
URL: http://
The president does NOT have clear Congressional authority to authorize middle managers to issue warrantless searches.

I think this is part of the problem I am having, too. When warrentless searches (not due to exigent circumstances or searches incident to arrest) turn away from foreign powers and onto US citizens, it gets awfully sketchy. This is especially true if it is being done by some "middle manager" of the executive who is not checked or balanced by the judicial branch. The farther down the chain of command we go, the more of a problem I have with it.
 
Written By: Wulf
URL: http://www.atlasblogged.com
This is not a war. It never was ’war’. War is a legal term. One can never compare what we did in WWII with today because one was a legitimate war (only Congress can ’declare’ war.
Well, you’re simply wrong. A declaration of war authorizes the government of the united states to use military force against another country. You may call it the "Onmibus Act to Provide Fuzzy Kitties to the Precious, Precious Foreign Children" if you want, but if it authorizes the president of the united states to send the US Military into the sovereign territory of another country, overthrow its government, and occupy the country, then it’s a declaration of war, whether you wish to call it that or not.
 
Written By: Dale Franks
URL: http://www.qando.net
Until then, the post is stretching and distorting the nuance of language to a point of obscuring the original intent of the Amendment. Sheesh, take that sh*t back to Havana!

I would rather die from a thousand arab bombs than have this gang of slugs shred the Constitution.
Well, that’s just bloviating, since there really isn’t a 4th Amendment issue involved here. The border search exemption already exists, and gives the government the power to conduct warrantless searches of all communications that enter or leave the country. That’s long-settled Constitutional law.

The only legal question is whether the surveillance discussed here violates the FISA, not whether it is Constitutional.
 
Written By: Dale Franks
URL: http://www.qando.net
The administration didn’t pursue specific authorization for this because they knew they wouldn’t get it, which makes the stretches involved in their interpretation more apparent.
Sorry, but the ruling in Hamdi makes their argument quite reasonable.
Whether they’re going over it, standing on it, or just this side of it depends on a lot of interpretive construction.
If so, then you’ve just agreed with me that it isn’t clear at all that the administration has done anything wrong, and that the administration has a colorable argument that they did not.
 
Written By: Dale Franks
URL: http://www.qando.net
Dale Franks must be wearing his secret Illuminati eyeglasses that distort the simple word "no" into the words "not always" while reading our 4th Amendment
And if the laws I’ve been citing, and what Dale has also cited, were so objectionable, where were the objections between now and when the Csrter administration (and the Democrat run Congress) first put them in place? Certainly, if the case were as clear-cut as you claim, such a challange would have been a slam dunk.





 
Written By: Bithead
URL: http://bitheads.blogspot.com
I certainly agree that they have an argument that what they did was acceptable. They’ve been making it. That’s why I wrote that "here’s certainly a case to be made that the law can be constructed in such a way that this behaviour can be interpreted as legal". It’s the argument I disagree with.
Sorry, but the ruling in Hamdi makes their argument quite reasonable.
Perhaps so. But the implied contradictions seem to indicate a somewhat less than confident assertion of privilege on the part of the White House. The surveillance coverage may be inferred from Hamdi, but it’s fairly tenuous and a good example of the way that growth will be rationalized.
 
Written By: Jon Henke
URL: http://www.QandO.net
While reading Jon’s posts, I recalled a constant criticism here of libertarians. Namely that they tend to dwell in the theoritical world, espousing and demanding adherence to utterly unrealistic principles, at the expense of forwarding some of the libertarian agenda. It seemed to me that Jon was tettering on that line.

Then yesterday, I was struck by the juxtaposition of the cacophony coming from talking heads with a ticker item running just beneath their coiffured pimped images. "The coming of the jack-boots" they shrieked while I learned that the President of Iran is outlawing western music from being played on Iranian radio & TV.

Now I’ll listen to reasoned arguments such Jon’s, but when folks want me to be more afraid of this country than real totaliarian regimes, especially if they are members of the minority party, I just shake my head in disgust.
 
Written By: bains
URL: http://
Text without Dale’s secret Illuminati eyeglasses: "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."

Text while wearing Dale’s secret Illuminati eyeglasses: "and not always 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."
Sadly, you really seem to think you have a point here.

I’m not sure how to break this to you, but you are referring to a requirement that all warrants be issued only upon probable cause, etc. That’s a fascinating subject, to be sure, but it has nothing whatsoever to do with whether all searches require a warrant.

Again, I remind you, that there are a number of acceptable situations in which a warrantless search is reasonable, and perfectly admissable in criminal cases, such as exigent circumstances, plain view, border search, etc. And, once again, you completely ignore that reality.
 
Written By: Dale Franks
URL: http://www.qando.net
Well, Book, since you’re such a strict constructualist when it comes to the Constitution, what do you think about, oh, say, Campaign Finance Reform (aka McCain Feingold)? The first amendment says
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I don’t see any exceptions for speech or publishing within thirty days of an election, or whatever. So are you ready to join our quest to dismantle CFR?

And if you are, then let’s discuss government involvement in healthcare, old age pensions, agricultural and corporate subsidies, and a host of other things not authorized by the Constitution. After all, the tenth amendment says
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
And I’m pretty sure I can’t find the clause that delegates the federal government to give money to sugar producers or McDonalds for overseas marketing.

If you’re not willing to go whole hog against those activities, which I personally believe to be unconstitutional, then it’s a bit hard to understand your obstinance. Warrantless searches have indeed been approved by the courts in many cases, under an interpretation of the Constitution that is clearly different from yours.
 
Written By: Billy Hollis
URL: http://
“…even after yards of his condesending verbiage…”
In the spirit of the comity you have exhibited as a newcomer, Book, I will take the bait and point out that you cannot even spell condescending, much less understand that most of your comments demonstrate that attribute.

Also, your responses would be more….uh, responsive if you would think about what has been said to you before taking up the keyboard. Are you familiar with the concept of “knee jerk”?
 
Written By: notherbob2
URL: http://
www.law.syr.edu/faculty/ banks/terrorism/FISCRedit022003.pdf
"It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable."
 
Written By: Anon
URL: http://
"http://www.nytimes.com/2005/12/20/politics/20fbi.html?ei=5065&en=0384c4fe8724565d&ex=1135746000&partner=MYWAY&pagewanted=print"
Oh, Book, and you read and cite the NYT “Politics” section; what a surprise! You really are a free-thinking liberal, aren’t you? [sarcasm/humor alert]
 
Written By: notherbob2
URL: http://
As I have said elsewhere;

Consider it this way; How would it be now had he gone through such motions in a fruitless effort to satisfy the bastards, and while hung up in that (Fisa) process, another attack happens? They’d be (rightly) screaming Bush hadn’t done all he could do… and would cite these same laws as Bush has invoked as what Bush SHOULD have done to thawrt further attack.

I submit it’s time to consider that the Democrats are going to bitch no matter what is done, or how well, and just simply go forward from there.

At the risk of putting too fine an edge on this, it comes down to how many civilian lives are you willing to risk for the impossible task of keeping Democrats happy?

And let’s also address this new-found stature of Democrats as civil libertarians.

Here’s a group of people who until recently were happily engaged in the removal of John Q Public’s rights. Now, suddenly, we’re to take them as being civil lib warriors? Sorry, no sale, here.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
The Constitution says "no".

And the Supreme Court has amended to to include acceptable warrantless searches, so I don’t understand your line of argument here. This is a legal dead horse.

The Constitution also very specifically says:

...against unreasonable searches and seizures...

The question is whether this is legally an "unreasonable" search or seizure as the "no" question you continue to harp on has been settled in constitutional law for eons.

That is separate from any moral argument as to whether government should or shouldn’t have these sorts of powers.
 
Written By: McQ
URL: http://www.qando.net/
Why bother McQ, Book Adams has the equivalent of an elementary school education on the Bill of Rights.
 
Written By: JFH
URL: http://
Why bother McQ, Book Adams has the equivalent of an elementary school education on the Bill of Rights.
 
Written By: JFH
URL: http://
Perhaps this will help Book, though I doubt it;
The founders left ’unreasonable’ as such, because they knew that context is the thing. What may have been reasonable or unreasonable in their time, may not have been in ours. The intent is to leave the wording strong, but not absolute.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Let’s allow Dale Franks to summarize his interpretation of "unreasonable" without pinning it on our Forefathers...
My opinion of what’s unreasonable is irrelevant, since I’m relying on the Court’s definition.
 
Written By: Dale Franks
URL: http://www.qando.net
(chuckle)
That seems reasonable.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Lost under all the buzz is the fact that there is not a single, actual complainant who is swearing that his/her/its rights have been violated by George W. Bush’s searches or seizures - reasonably or unreasonaby - in a library, on a bus, or in a public restroom, anywhere.

This is baffling because usually a victim is an essential component for outrage, and it is blatantly absent here.

But wait...I suspect that the lawyers for the non-nationals detained under the wire-tap policy - now rotting in Bush’s not-so-secret prisons, are listing the abuses they "suffered" under the evil wire-tap policy.

Is the NYT acting as a proxy-publicist for these detainees’ "civil liberties" defense?

If the NYT wants to report that terrorist detainees are the "victims" of a vague ’assault on civil liberties" they should say it and back it up. Present the historic precedents, the names of current "victims" of the policy, and detail the war-time context for us, then let us decide.

But they can’t, and why should they? The payola is great! They are the talk of the town. They got some great headlines, and surely a boost in sales. Some egg’s on Bush’s face. It’s all good!

They couldn’t get Tookie off the hook, but, if they keep this up, they might be able to spring a couple of those misunderstood middle-easterners rotting in Bush’s secret prisons.
-Steve
 
Written By: Steve
URL: http://
“…seem to be engaging in some kind of primal canine butt-sniffing…”
Book, I believe you have correctly referred to the source of that which we are sniffing. And, your comment would have been very amusing had not the evidence of what you are been so clear from the git-go. Please continue to vote only in city counsel contests. This part was pretty funny:
“…or a righty Republican…”
LOL
 
Written By: notherbob2
URL: http://
...if the new guy is a lefty Democrat or a righty Republican. He is neither and only votes in local City Council elections based upon the candidate’s intelligence.
Voting at the state and federal level is hard. I have not had a candidate for president I was really enthusiastic about in at least twenty years. In some cases (such as 1992 and 1996), all the major choices were depressingly bad.

But I still make a decision on who to vote for. Apparently you are someone who’s unable or afraid to make tough choices.
 
Written By: Billy Hollis
URL: http://
Steve has hot on a point which I’d not completely put my arms around, since I heard it raised on Smrconish’s show (Down in Philly) yesyerday... and his comments gel it for me;

All this smoke and fire is all hypotheical. There have been no cases of actual abuse. None. Period. So far, what we have here is the ultimate ’slippery slope’ argument and naught more.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
The liberal pundits are feeding their readers a careful, reasoned version of the story, cautiously awaiting the fuller development of the facts [NOT!]:

“I’m not at all surprised by the facts…. the President arrogating himself absolute power… a President who clearly and unquestionably [??] breached all [??] constitutional and legal safeguards. Bush’s stated rationale… is absolutely preposterous. And equally dishonest… “…Constitutional law and the rules of what’s called statutory construction in this country clearly [??] do not support the arguments that the administration is making.” Translation: Bush is bullshitting us. …This is all going to depend on to just what degree Americans are willing to have their civil liberties erased by fear.”
Or possibly, it might hinge on how many Americans get their information outside the liberal cocoon.
 
Written By: notherbob2
URL: http://
It is nice to see that we can rely on a libertarian blog to provide us with creative interpretations of both law and the constitution in order to support unchecked and expansive government power.

I swear, sometimes I think we live in bizarro world.
 
Written By: Rosensteel
URL: http://
It is nice to see that we can rely on a libertarian blog to provide us with creative interpretations of both law and the constitution in order to support unchecked and expansive government power.

I swear, sometimes I think we live in bizarro world.


Wake up and smell the coffee, then. We dont have a libertarian government. Nor, really, have we ever had one. This post is, therefore, an analysis of the government we have, as it is, not as you wish it would be. Nor, by the way, are my interpretations of the 4th amendment "creative". They follow what the Court has determined the 4th Amendment means, not your preference about what you wish it meant.

I think you’ll also find that my post doesn’t express much of a personal preference. It is solely about the arguments surrounding the surveillance at issue.

Arguments that, by the way, stand an excellent chance of passing Supreme Court muster.

Whether you like that or not, or whether it’s a good thing or not, are irrelevant to the post.

If you wish to read only analyses that buttress your preconcieved notions about how the world should be, then I suggest you go elsewhere.
 
Written By: Dale Franks
URL: http://www.qando.net
Wow. Reality. What a concept.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Ugh, Book, we know that in order to be a liberal nowadays one must be fact-challenged, but I feel constrained to point out that this is an online magazine (check the home page title) and not a weblog. That could be an important difference if liberals succeed in bringing political correctness to the internet. While we are on the subject of facts, why don’t you start a tally of how many times your “facts” turn out to be untrue? The result could encourage you to change your sources to include some outside the liberal cocoon.
 
Written By: notherbob2
URL: http://
Please note number 4. That’s not an expansive reading. That’s the plain text of the statute.
Yes, it is, but 1802 specifically does not include number 4; for the purposes of this discussion, "foreign power" means only 1-3. You even quoted that part, so you should have noticed. That’s a dishonest reading of the statute.
 
Written By: Platypus
URL: http://pl.atyp.us
Gee, Book, if we took your advice and transformed the issue from what it is to what you suggest, we would be as effete and inconsequential as most liberal blogs. I believe the policy here is to stick with the real world and the real issues.
 
Written By: notherbob2
URL: http://
Actually, as a new visitor I see mostly a neocon circle-jerk around The President...
Actually, as long-time visitor/commenter who has written severe criticism of Bush (as have the owners of this site), I see a jerk, all right. One for whom scatology and sexual references are apparently his preferred forms of argument.
 
Written By: Billy Hollis
URL: http://
Book, most folks come out with a crude metaphor on occasion. But we’ve seen at least three from you on this one thread.

I’d say that indicates you can’t lack enough confidence to put forth real arguments. So like the immature kid trying to show how cool he is, you come out with the vulgarity instead.

So far I’ve read several hundred works of blathering from you, and not a single idea that was worth the pixels. Heck, at least mk is thought-provoking on occasion, even if the occasions are more rare than I would like.
 
Written By: Billy Hollis
URL: http://
Yes, it is, but 1802 specifically does not include number 4; for the purposes of this discussion, "foreign power" means only 1-3. You even quoted that part, so you should have noticed. That’s a dishonest reading of the statute.
I specifically noted that in the post itself, however.
 
Written By: Dale Franks
URL: http://www.qando.net
I specifically noted that in the post itself, however.
All the less excuse for reiterating the red herring in the comments.
 
Written By: Platypus
URL: http://pl.atyp.us

 
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