1) Where is the warrant when government searches me at the airport? At the border? At a federal building?
2) Why is President Bush the first President to have to apply the cons ution to enemy combatants, terrorists, and spies?
Just for more clarification, UNREASONABLE is defined in my legal ditionary too.
Unreasonable:
arbitrary, capricious, absurd, immoderate, or exorbitant, 287 N.W. 122, 131; not comfortable to reason, irrational, beyond bounds of reason or moderation, 268 P. 2d 605, 616.
This thread is a waste of bandwidth.
This forum is a waste of bandwidth so, what's your point?
you're a waste of an IP address
Yep.
Now, have you improved the forum?
I'm glad empty symbolism is the burning issue of the day.
Why don't we just declare America a police state and get all this legal mumbo jumbo out of the way.
Why? Undisputable facts?
But that would be unreasonable....
We are already half there why not just take the final step?
Does the judge run down the cop and give him a warrant and say "go search this house!"? No. The cop goes to the judge seeking a warrant. If he gets it, the search/seizure is on. If not, then no. De Facto permission.
I'm actually done with this, Yoni and WC, because we are never going to agree or convince the other to do so. I think the government, whatever party is in power, should never have this much power. You think, under certain cir stances, they should. The problem with that is that if they have the power, they're going to use it over and over and over and over, until the cir stances don't matter anymore.
I think so.
no, because an idiot created it.
Then ignore it instead of wasting your time. If you think it's a waste, then you must be insane to participate in it.
Actually, there are plenty of cases where the probable cause of the police is justified to enter without a warrant. Current laws for civil jurisdictions normally require a warrant. However, the cons ution does not.
I understand. Your arguments are to weak to contine debate on.
There are some things I think I cannot be convinced otherwise. However, I am open minded and could change my mind on any belief with sufficient evidence. I'm sorry if you truly are closed minded.
What we think, and what law is are two different things.
Absolutely. As long as the actions are reasonable, I see no need to seek a warrant for time sensitive issues.
There are some who will abuse such powers, but... such people would weather legal or not.
But who defines what is reasonable?
To this point in American history, reasonableness, by long-agreed conventions, has been decided by courts, not executives. Indeed, to the best of my knowledge all of the exceptions to the 4th Amendment's warrant requirement are judicially-created.
You seem to be arguing that it's for an executive branch actor to decide whether a particular cir stance requires a warrant or not. That's never been true -- or, at the very least, any such decisions made by an executive branch actor have been subjected to judicial review to determine whether the search undertaken is one that required a warrant or not.
You can cite the dictionary definitions of reasonableness all you like, but the functional truth is that there are a few established exceptions to the Fourth Amendment warrant requirement, most of which have little to do with a dictionary definition of reasonableness and a whole lot to do with balancing the privacy rights of individuals against the need to empower law enforcement. On balance, the privacy rights of individuals prevail -- as they probably should. As a result, there's good reason to question the cons utionality of efforts to identify new cir stances that will permit warrantless searches.
In the context of an issue like AG Gonzalez's warrantless wiretapping program, the argument for a warrantless search (and I'll stop you in advance, a wiretap has already been defined as a search for Fourth Amendment purposes) is particularly curious because Congress has passed a law that says that such efforts will generally require a warrant from the FISC. We're not really sure whether that program was employed against American citizens, but I don't know that it's somehow unconscionable for people to believe that it might have been and to discern from that reasonable su ion that the program may have contravened cons utional rights -- even if President Bush thought the program was reasonable. We'll likely never get concrete answers to those questions because it would be nearly impossible -- absent an arrest dependent upon information gleaned from such surveillance -- to find a person with legal standing to challenge the program. Still, there are cases in the pipe dealing with that issue and we'll have to wait to see what happens with them. In the meantime, though, I could certainly understand why some would reasonably believe that there have been some uncons utional undertakings by this Administration in that regard.
10,000.
The term is pretty well spelled out in legal dictionaries. Part of the process of getting the warrant is not to take a chance of being legally wrong.
But the executive branch is an equal part of government. The higher standards are kept in place for the lower law enforcement.
Now I will grant this. There are some instances that are clearly reasonable, and some that are clearly unreasonable with a rather large grey area.
That's not my argument. Laws created by congress cannot tie the presidents hands from him carrying out his cons utional duties. Only a cons utional change can change what a president can currently do.
Now stop and think a minute. The 4th amendment does not say a warrant is required, but it does state the criteria required to issue a warrant.
You are refusing to read the 4th amendment correctly. Where does it state anywhere, that a warrant is required?
Is this legal definition you talk about a case law referring to regular law enforcement, or national security?
Congress can limit civil law officers. Not executive power.
Congrats on your 100 squared.
This time-sensitive argument doesn't fly. There are already provisions to receive a FISA warrant after the monitoring has already been executed. The executive branch simply wants to operate without any oversight whatsoever. I guess they think some branches of government are more equal than others.
Legal dictionaries are not the law. Cite a court to a legal dictionary to prove a legal proposition and you'll be laughed at -- very, very loudly laughed at. Legal dictionaries try to provide a legal justification for certain definitions that are helpful to understanding legal concepts, but the definition put forward by a legal dictionary is never, ever controlling.
I'm not discounting the executive's co-equal standing; I'm simply telling you that while you seem to be implying that it is up to the executive to determine whether a search is reasonable or not for Fourth Amendment purposes. I'm telling you that the executive's claims of reasonableness have always, historically, been subject to challenge through the judiciary and the executive has always, historically, accepted the judiciary's determinations about the cons utional reasonableness of a search. That has everything to do with the meaningful separation of powers.
Again, even where the executive thinks a search falling within the grey area is reasonable that reasoning is subject to review by courts. As such, courts generally have the final say in determining whether a warrantless search is reasonable or not -- courts; not the executive.
Or a willingness to accept the judiciary's constructions of the Fourth Amendment's warrant requirement. I suppose that you could call those decisions cons utional changes, but really they're just decisions applying law to particular facts to determine the cons utionality of an executive act. If the Supreme Court were to determine that a particular search required a warrant and that was somehow not an acceptable result, Congress could pass a law or the People could amend the Cons ution. But with very limited exceptions, that hasn't generally happened.
The default position in Cons utional Law is that the Fourth Amendment does require a warrant supported by probable cause -- that is, cons utional presumption is that a search undertaken without a warrant is unreasonable. Given that fact, the cir stances in which no warrant is required are known as "exceptions to the warrant requirement;" if the Fourth Amendment were understood to not require a warrant, there would be "exceptions requiring a warrant."
I'm only relating to you the nearly-unanimous understanding of the Fourth Amendment's language. I'd tell you that the notion that the government must obtain a warrant is implicit in the requirement that a search be reasonable. That is, a search is reasonable, in general terms, only if it is conducted pursuant to a warrant. The second clause of the Fourth Amendment defines under what cir stances a court can issue a warrant, but that notion would be essentially useless unless there was a general need to obtain a warrant in the first place.
That construction of the Fourth Amendment supports the notion of a balancing of individual privacy rights against governmental law enforcement interests. If you stopped to think about Fourth Amendment jurisprudence at all, you'd realize that the balancing test is implicit in any and all discussions of the warrant requirement.
I don't know that there would be any reason to make that distinction. The Fourth Amendment doesn't distinguish between searches undertaken by regular law enforcement and searches undertaken under the au ies of national security. The Fourth Amendment prohibits the government -- any branch and regardless of the basis for its action -- from unreasonably searching the persons and property of citizens.
Though this President doesn't seem willing to admit it, the Cons ution restrains executive power. And it does so very much in favor of the People. The arguments against programs like the warrantless wiretapping program aren't arguments concerning Congressional power to limit the President; they're arguments that the program exceeds the bounds of the Fourth Amendment, which clearly imposes limits on executive power.
These are legal established definitions. If you wish to maintain denial in what the cons ution clearly says, then fine. It was written in clear English of the day for people to easily understand.
Please... show me were the cons ution says a warrant is required, rather than explaining how authroizing it as a tool is granted.
Are you up to the challenge?
If not, I maintain my argument that the cons ution does not protect from reasonable search and seizure, and that law less than the cons ution cannot override the presidents con utional powers.
I'll try this a different way -- the Cons ution says that individuals should be free from unreasonable searches and seizures. The question, then, is what is unreasonable. Since "unreasonable" isn't defined in the Cons ution, that question has been left to courts. Those courts have determined that a search undertaken without a warrant is unreasonable unless and except certain very specific conditions are present. Those conditions -- "exceptions to the warrant requirement" -- a search where contraband is in plain view; a search where exigent cir stances exist (imminent destruction of evidence or threat of physical harm posed by suspect, for instance); a search incident to a lawful arrest; searches of places with diminished expectations of privacy such as open fields, public schools, and border crossings.
If you disagree with that construction of the Fourth Amendment, I'd suggest that you take it up with the Supreme Court of the United States and the vast majority of the general public who live by those rules and that construction every day of their lives. Congress and even Presidents live by that construction of the Fourth Amendment.
You can tell me all you want that your reading of the Fourth Amendment is superior to mine -- I'm not denying anything; I'm telling you that, regardless of your choices in reading the amendment, the Fourth Amendment's function has always been understood to require governmental officials to obtain warrants except where a search without a warrant can be deemed reasonable.
Law implementing Cons utional protections can override the President's Cons utional powers. The rights protected by the Cons ution would be of very little value if the executive could just claim to have some Article II authority to ignore the very specific rights guaranteed to individuals. The Cons ution and the Bill of Rights are designed, in the main, to favor individuals over government. The President cannot claim an executive power to simply ignore cons utional guarantees; and if those cons utional guarantees are protected by statute (i.e., FISA) I don't see any authority for concluding that the President is vested with some right to ignore that law.
DownTown. Again, you are applying the laws laid out for civil law and trying to apply them to national security.
It just doesn't wash.
Are you saying that the Fourth Amendment is inapplicable if the President claims a national security interest justifies the search?
I'd be quite interested in seeing the Cons utional authority for that proposition.
I'd argue that you're both overstating the President's powers vis-a-vis the Bill of Rights and that you're choosing to ignore well-settled principles of Fourth Amendment law.
The latest Obama outrage!
Watch: Obama Busts A Move On "Ellen"
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