That's an ends-justify-the-means rationale that is absolutely foreign to Cons utional jurisprudence. If the subject of the tap is in the United States, he or she is protected by the Cons ution, whether you like that or not. You're essentially arguing that those who are tapped are guilty (which, as far as I know hasn't been proven anywhere other than the back-slapping court of Bush approval) and that their guilt justifies a warrantless wiretap. But if that were true, then criminal prosecutions would not be dismissed in other cases in which the wiretap provided evidence that showed the person to be guilty. In other words, the government's only concern would be for wiretapping those who are innocent, and then only to the extent that such activity might create civil liability under 42 U.S.C. s. 1983.
I also think its facile to couch the argument in terms of the President's authority. Peace officers -- those who generally must receive warrants to wiretap and conduct similar types of surveillance -- are executive officers in virtually every governmental scheme in this country. The Article II argument can't end with the President; it would almost necessarily have to extend to every similiar effort by the executive branch, including police investigations. The argument, it seems to me, would vitiate the 4th Amendment's warrant requirement if taken to its logical end point.
Here's the fun part.
So we're at war.
Fine.
When will it end?
What tangible goal can be met for the President to give up these emergency wartime powers?
Here's my pop quiz:
Will you go to the mat for Hilary Clinton's right to operate with no oversight if she becomes President in the middle of this endless war?
I suspect someone will. But the government won't win it's case if the argument is infirm by saying "well the guy was guilty." Even if the target was as guilty as could be, the Cons utional problem stems from the investigation, and that problem can't be mitigated by the fruits of that investigation -- that's the most fundamental principle of criminal procedure. Again, if that were true, there would never be cons utional problems in prosecuting other crimes in which evidence was secured without a warrant.
The Fourth Amendment also requires probable cause and a warrant, which is the part you and the administration seem to be ignoring.
Well, if we were talking about a crime and not an enemy, you'd have a point. But, as has been posted over and over and over again, the President's cons utional obligation to maintain NATIONAL SECURITY overrides 4th Amendment protections on the grounds such warrantless searches meet the reasonableness standard.
Okay, let's read it together:
The whole amendment -- and its civil protections as well as government obligations -- hinge on the reasonableness of the search [or seizure].
That's true only if you buy the argument advanced by the Administration that Article II trumps the 4th Amendment in some instances. Again, that argument seems to be accepted by the Administration and its ardent supporters, but it doesn't seem to find much of a foothold among the legal academics and it's questionable whether it would pass muster in a court.
Were that argument absolutely true, it would seem to entirely vitiate the need for the FISA and the FISC in any instance.
I think the bigger problem here is that we are dealing with activities that are criminal in nature but can be plausibly brought within the ambit of the broad declaration.
Right, but that amendment has never been understood to allow warrantless searches of REALLY bad guys because based on a belief that those searches would be "reasonable," while other searches would not.
The reasonableness requirement for searches permits a handful of exceptions to the warrant requirement: plain view, searches incident to arrest, Terry stops, and things like that. It's never been construed to mean that as long as the search doesn't affect innocent people, it will be deemed reasonable.
I'd really be interested to see any legal authority you have to support your construction of the 4th Amendment. It strikes me as both a unique and untenable position.
I also don't understand why you'd even suggest that a reasonbleness inquiry under the 4th Amendment saves the program if you're so certain that the 4th Amendment doesn't apply to this situation.
No, again, you're missing the point. The 4th amendment protects you agains UNREASONABLE searches and seizures. There's no "trumping;" if the search is reasonble the 4th amendment doesn't even apply.
Ah jeeze, I've posted it at least a dozen times. FISA has made this exact argument when it reviewed just such a case. It has passed muster.
Well, it's be asserted that FISA needs to be updated but that it is useful in domestic law enforcement cases.
Actually, they are acts of war not crimes. Communicating with the enemy is an act of war and should be treated as such and should be subject to the powers of the President to detect and thwart the products of any such communication without being unduly en bered by Congressional Statute.
So you're going to trot out a legal definition of war in this instance and refuse to recognize it for the Geneva Conventions.
Please make up your mind.
A search without a warrant is unreasonable per se if it does not fall within a well-defined set of exceptions. You're creating an argument out of thin air that searches that would be politically expedient or publicly popular are somehow reasonable. That's a novel theory.
Since when? Is the argument that FISA needs to be updated contemporaneous with the ins ution of the present program? If so, then we're dealing in chicken-and-egg politics.
Who defines who the enemy is? And where do the President's powers stop? What you wish to investigate without a warrant is the possibility that individuals will undertake to harm civilians in the United States. Assuming that to be an act of War, it is no less a crime than Timothy McVeigh's activities, for example. I can't square the idea that if McVeigh was active today, the government would need a warrant to investigate him, but wouldn't need a warrant to investigate Mohammed who lives next door.
So what exactly would update FISA so that it would provide something resmbling oversight of the executive for these specific cases?
as an aside, o whottt. It's good to see you back.
Do you really believe your statment?
lllllooooooo. OG, what part of International don't you understand!
Then you don't look very close. I lived there for many years, and I saw
them. Not the Middle Eastern types, but the revolutionaries. Like taking
over the Mayors office in McAllen.... lllooooo!
I'll dig up the FISA Review Court opinion...again.
It doesn't apply because the searches are reasonable. It's that simple.
Have you heard anyone argue that, if the President is using the NSA program as he describes, it is unreasonable or that they want it discontinued? No, most of the heartburn is based on unsubstantiated assertions that he COULD use it illegally or that he MAY have used it illegally.
Oh brother, do I have to post this again? Ok, here we go, this is what Your president has to say about wiretapping to chase down terrorists.
"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush
Next.
Well, who could tell if he WAS using it illegally?No, most of the heartburn is based on unsubstantiated assertions that he COULD use it illegally or that he MAY have used it illegally.
The reason that people are saying that he MAY have used it illegally is because the all of the facts relating to the manner in which the program was utilized have yet to be disclosed.
What about these searches makes them "reasonable?"
I've heard ample argument that the program is uncons utional. That, to me, would incorporate arguments that the searches are unreasonable and that they should be continued only with warrants.
If you listen to the administration, the fact that Bush authorized them automatically makes them reasonable.
The searches are not reasonable. The President completely ignored the warrant requirement of FISA and the Fourth Amendment.
If you're communicating with a person known to be associated with an enemy with which we are at war, it is reasonable to intercept those communications and see what you're talking about.
On what grounds and, please, give a source.
So, if a Marine shoots Ahkmed in Fallujah and Ahkmed has a pay-as-you-go cell phone with a bunch of other pay-as-you-go cell phone numbers (the sale of which is traced to the United States) you would seek a warrant before you put a trace on every one of those other phones?
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