From The No-Shit Files: Senate Told Spying Program Is Illegal

[Nbadan]

Spying program illegal, Senate committee told


WASHINGTON - A group of legal specialists told a Senate committee that President George W. Bush's domestic spying program is illegal and may set a precedent that allows wartime presidents to break laws freely in the name of national security.

In its second hearing on the once- secret surveillance program, the Senate Judiciary Committee heard testimony Tuesday from a number of law professors and former officials. Most voiced skepticism of the president's assertion that his wartime powers allow him to bypass the courts and spy on Americans' international calls and e-mail messages without warrants. Bush's legal theory, they said, is both wrong and dangerous.

"This is a defining moment in the constitutional history of the United States," said Bruce Fein, a lawyer who served in the administration of President Ronald Reagan. He said the theory used by the administration "could equally justify mail openings, burglary, torture, or internment camps, all in the name of gathering foreign intelligence. Unless rebuked, it will lie around like a loaded weapon ready to be used by any incumbent who claims an urgent need."

But other specialists disagreed.

In his testimony, Douglas Kmiec, a Pepperdine University law professor who was a Reagan administration lawyer, endorsed the White House's assertion that Bush's power as commander in chief allowed him to set aside the warrant law and eavesdrop on Americans.

ITH (http://www.iht.com/articles/2006/03/01/news/nsa.php)

A war-time President? When did congress officially declare war? Did I miss something?

[Oh, Gee!!]

Yonivore to explain that the issue is "well-settled" in favor of the prez in 5.....4.....3....2....1....

[Mr. Peabody]

"This is a defining moment in the constitutional history of the United States," said Bruce Fein, a lawyer who served in the administration of President Ronald Reagan. He said the theory used by the administration "could equally justify mail openings, burglary, torture, or internment camps, all in the name of gathering foreign intelligence. Unless rebuked, it will lie around like a loaded weapon ready to be used by any incumbent who claims an urgent need."


This attorney obviously doesn't understand the sacrifices that must be made in order to protect our freedoms.

[Nbadan]

Yeah, we gotta sacrafice our freedoms to save it from a phantom enemy.

:rolleyes

[Yonivore]

This attorney obviously doesn't understand the sacrifices that must be made in order to protect our freedoms.
He obviously doesn't understand the "reasonableness" standard of the 4th amendement either.

[Oh, Gee!!]

This attorney obviously doesn't understand the sacrifices that must be made in order to protect our freedoms.


He's been too busy living in his ivory tower

[FromWayDowntown]

He obviously doesn't understand the "reasonableness" standard of the 4th amendement either.

Wait -- I thought your position was that this was an Article II question that had nothing to do with the 4th Amendment; that Presidential power in this regard cannot be encumbered by any amendment. If that's true, what on Earth does the "reasonableness" standard of the 4th Amendment have to do with this issue?

[xrayzebra]

Yeah, we gotta sacrafice our freedoms to save it from a phantom enemy.

:rolleyes

You mean like the UAE, the great enemy of the middle east.

[Nbadan]

You mean like the UAE, the great enemy of the middle east.

:rolleyes

How many of the 911 terrarist came from the UAE again?

[xrayzebra]

From there, thru there. Where did the group that blew up the London
underground come from? How many banks in the US handled money for
the 9/11 group(s). How much blame do we need to spread to see what
has been told to all of us. It is a worldwide problem. The point I was
attempting to make is that you all want to stop a deal with UAE, but then
tell us we don't need to listen to conversations because we have no
problem and shouldn't be listening because we might hear an American
talking. Make up you cotton pickin mind. Do we have a problem or not?

[RandomGuy]

The "war" on terror is like the "war" on dandruff.

I.e. it's not a war.

The war on terror is more of a PR battle than anything else, and the current administration can't seem to wrap it's tiny little mind around that fact.

The "war" on terror will not by won by superior technology, soldiers, or the U.S. military. It will be won by teachers, engineers, and parents in the developing world bringing their countries out of the hope-crushing poverty that fuels the evil ideology of the radical fundamentalists.

[gtownspur]

:rolleyes

How many of the 911 terrarist came from the UAE again?

Why should you give a flying fuck. Your qoute in my sig on the phantom enemy throws away your credibility. GO back to posting under GW bush.

[Dos]

so what is the supreme courts position on this .. anyone?

[FromWayDowntown]

The Supreme Court has never decided this issue.

That's likely why there's so much debate about the legality of the program.

[Yonivore]

Wait -- I thought your position was that this was an Article II question that had nothing to do with the 4th Amendment; that Presidential power in this regard cannot be encumbered by any amendment. If that's true, what on Earth does the "reasonableness" standard of the 4th Amendment have to do with this issue?
If the searches are unreasonable, the 4th amendment protections would apply where American citizens are concerned.

Don't get stuck on stupid. I've never contended this was purely an Article II issue. I have said that Article II gives the president exclusive authority in foreign intelligence matters but, obviously, if the search extends to an American Citizen, it must be reasonable to pass Bill of Rights muster.

The question becomes, is it reasonable to want to know what is being said between a known terrorist and someone within the boundaries of the United States.

I think everyone will agree it is.

Nowhere has it been alleged or demonstrated that the NSA Program was doing anything beyond what has been described by the President, the NSA, or even the NYTimes (who is pretty big legal jeopardy at this point).

[FromWayDowntown]

but, obviously, if the search extends to an American Citizen, it must be reasonable to pass Bill of Rights muster.

The question becomes, is it reasonable to want to know what is being said between a known terrorist and someone within the boundaries of the United States.

I think everyone will agree it is.

Except no recognized 4th Amendment jurisprudence that I'm aware of would permit that warrantless search to be deemed reasonable. The 4th Amendment is concerned with the nature of the search, not the identity of the person who is searched.

The recognized exceptions to the 4th Amendment warrant requirement are extremely limited and have nothing whatsoever to do with identity and everything to do with immediate circumstances. Those exceptions are things like searches incident to arrest, plain view searches and pat-downs upon temporary detentions, and things like that.

Surveillance of a telephone or other communications device is not within any of those exceptions. Accordingly, if the 4th Amendment applies, it would seem unlikely that the searches could be upheld without warrants, absent the creation of a new exception to meet this circumstance.

But that could hardly be settled law, now, could it?

[Yonivore]

Except no recognized 4th Amendment jurisprudence that I'm aware of would permit that warrantless search to be deemed reasonable. The 4th Amendment is concerned with the nature of the search, not the identity of the person who is searched.

The recognized exceptions to the 4th Amendment warrant requirement are extremely limited and have nothing whatsoever to do with identity and everything to do with immediate circumstances. Those exceptions are things like searches incident to arrest, plain view searches and pat-downs upon temporary detentions, and things like that.

Surveillance of a telephone or other communications device is not within any of those exceptions. Accordingly, if the 4th Amendment applies, it would seem unlikely that the searches could be upheld without warrants, absent the creation of a new exception to meet this circumstance.

But that could hardly be settled law, now, could it?
Fine, run it up the flagpole. But, when the Roberts court smacks this down, I want the editor of the New York Times, the reporters, and the dozen or so former and current NSA employees to be lined up and shot.

[FromWayDowntown]

Fine, run it up the flagpole. But, when the Roberts court smacks this down, I want the editor of the New York Times, the reporters, and the dozen or so former and current NSA employees to be lined up and shot.

I thought activist courts were the bane of American society. In order to uphold the program on 4th Amendment grounds, the Roberts Court will have to engage in an act of judicial activism -- it will have to read into the amendment an exception that isn't there. I guess that sort of activism is kosher when it's someone else's ox being gored, eh?

If they uphold the program as to foreign communications, we'll finally have a conclusive answer to that question. But I doubt seriously that the answer to that specific question will be derived from the 4th Amendment.

[Yonivore]

I thought activist courts were the bane of American society. In order to uphold the program on 4th Amendment grounds, the Roberts Court will have to engage in an act of judicial activism -- it will have to read into the amendment an exception that isn't there. I guess that sort of activism is kosher when it's someone else's ox being gored, eh?

If they uphold the program as to foreign communications, we'll finally have a conclusive answer to that question. But I doubt seriously that the answer to that specific question will be derived from the 4th Amendment.
The word "reasonable" is there. But, I hope you getting an answer is worth the complete destruction of a valuable intelligence asset.

[FromWayDowntown]

The word "reasonable" is there. But, I hope you getting an answer is worth the complete destruction of a valuable intelligence asset.

Sure, but the number of exceptions to 4th Amendment -- the number of searches deemed reasonable without a warrant -- is quite limited and to date, does not include things like wiretaps or pen registers.

I hope the perpetuation of a valuable intelligence asset is worth undermining valuable constitutional rights. What good is a war on terror if we can't undo that meddling Constitution, right? Perhaps we should relegate Muslims to internment camps in the name of safety or start seizing private businesses in an effort to streamline production of war materials, too.