Wiretaps and the Fourth Amendment

[toddjh]

Okay, sorry to add yet another thread to the wiretap issue, but I seem to have a somewhat different take on the issue than a lot of people, so I'm hoping y'all can shed some light.

My point of view is this: forget FISA, war powers, Constitutional authority and all that rubbish. Go straight to the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

It seems to me that, regardless of whatever laws Congress may have passed, and regardless of whatever innate authority the office of the President claims to have, that warrantless wiretaps blatantly violate this right. You have agents of the executive branch invading the privacy of individuals without probable cause.

Hell, I don't even like the idea of retroactive warrants. What if the courts decide there weren't sufficient grounds after all? When this happens, it's too late to go back in time, and a citizen's rights have been violated...who is accountable for this? I can accept that this may sometimes be necessary for the sake of national security, but it still bothers me.

So, I guess what I'm wondering is whether more legal-minded people here know if there have been any court cases addressing how the Fourth Amendment does or doesn't apply to situations like this, and why.

Jeremy

 

[Cylinder]

Do you feel that the government does not have a legitimate interest in collecting signals intelligence against al Qaeda?

 

[toddjh]

Do you feel that the government does not have a legitimate interest in collecting signals intelligence against al Qaeda?

Sure they do. And if they have probable cause to suspect a communication will contain valuable intelligence, get a warrant and go crazy. Like I said, I'm even reluctantly tolerant of retroactive warrants if time is a factor.

But if they don't have sufficient evidence to get a warrant, how can they justify it? It's tantamount to admitting they're shooting blind, and I don't think the government should be in the business of violating citizens' rights on a hunch.

Jeremy

 

[Mark]

Sure they do. And if they have probable cause to suspect a communication will contain valuable intelligence, get a warrant and go crazy. Like I said, I'm even reluctantly tolerant of retroactive warrants if time is a factor.

But if they don't have sufficient evidence to get a warrant, how can they justify it? It's tantamount to admitting they're shooting blind.

Jeremy

Much like invading a country to find something they know is there even though they don't know if it is there.

 

[BPSCG]

Do you feel that the government does not have a legitimate interest in collecting signals intelligence against al Qaeda?

I haven't been paying really close attention to the legalities involved here, so I'm probably going to say some ignorant things in this discussion.

For starts, I think toddjh does in fact believe the government has a legitimate interest in collecting signals info from AQ. But that's not what he asked. He's asking if there are precedents that address the issue.

Seems to me there may very well be. After all, JFK's Justice department wiretapped Martin Luther King without a warrant (okay, maybe that's a bit of a stretch; the FBI under J. Edgar Hoover did it), and I would imagine someone must have sued the government over that.

Here's an argument justifying them that I haven't heard: Read carefully the language of the Fourth Amendment, and compare it to the Second (keep and bear arms). They both use the term, "the right of the people."

Now, gun-control advocates claim that "the right of the people" doesn't confer an individual right to bear arms, that it's a collective right, vested in state militias. Why, then, does "the right of the people" in the Fourth amendment confer an individual right? To be consistent with the gun-control advocates' reading, the Fourth amendment would have to be interpreted as a collective right, i.e., the government can't do mass warrantless searches.

I don't know of anyone who actually holds that belief, but it seems to me it necessarily follows if you accept that the collective right argument is valid for the Second amendment. For the record, I believe both amendments mean individually.

Okay, here's another way it seems to me warrantless wiretaps can be consistent with the Constitution. Note the Fourth amendment talks about "unreasonable" search and seizure. Are warrantless wiretaps "unreasonable" in time of war?

I'm just raising questions here, and as I said, they may be questions bred of ignorance, so anyone in a position to educate me, please do so. FWIW, I'm troubled by these wiretaps, but not to the extent that some of the more camera-hungry denizens of Capitol Hill seem to be.

 

[toddjh]

Okay, here's another way it seems to me warrantless wiretaps can be consistent with the Constitution. Note the Fourth amendment talks about "unreasonable" search and seizure. Are warrantless wiretaps "unreasonable" in time of war?

Yeah, I thought about that too, and it's a good point. But yes, I think the current situation qualifies as unreasonable, for three reasons.

First, I'm not convinced we are at war. Congress authorized the use of force in Iraq, but is that the same as a declaration of war? A lot of members of Congress were under the impression that that resolution was meant to be used as a "stick" in ongoing diplomatic efforts, not as license to invade immediately.

And were these wiretaps directly related to Iraq? I was under the impression they were about terrorism in general. People talk casually about the "war on terror," but is that an entity with any legal weight? Does the "war on terror" confer special powers upon the executive? What about the "war on drugs?" The "war on poverty?" I'd need more than rhetoric before I'd be prepared to accept that rationale.

Second, and more importantly, FISA already provided a framework for allowing quick action. Disregarding an explicit statute in favor of acting unilaterally and without oversight is most definitely unreasonable, especially when the same effect could've been achieved by sticking to the rules.

And third, I would argue that any search is unreasonable if there is not good reason to believe the search will turn up something useful. And if there is, play nice and get a warrant.

Jeremy

 

[Cylinder]

Okay, here's another way it seems to me warrantless wiretaps can be consistent with the Constitution. Note the Fourth amendment talks about "unreasonable" search and seizure. Are warrantless wiretaps "unreasonable" in time of war?

Right. That's the legitimate government interest test. That gets one halfway through the Fourth Amendment. Since the OP quoted that clause, that's the one to which I responded.

 

[Cylinder]

And were these wiretaps directly related to Iraq?

The NSA program targets al Qaeda, which is authorized by the AUMF which was passed by Congress in response to the 9-11 attacks.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled...That the President is authorized to use all necessary and appropriate force against those nations, oganizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

 

[BPSCG]

That the President is authorized to use all necessary and appropriate force against those nations, oganizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This strikes me as being unconstitutional. "All" necessary and appropriate force? "He" determines?

What is to prevent the president from having Cylinder dragged out of his house and killed on the grounds that he (the president) determined that Cylinder was an AQ September 11 accomplice? This clause appears to leave the president answerable to no one.

 

[Luke T.]

It seems to me that, regardless of whatever laws Congress may have passed, and regardless of whatever innate authority the office of the President claims to have, that warrantless wiretaps blatantly violate this right. You have agents of the executive branch invading the privacy of individuals without probable cause.

We went over this in the Gore topic.

Anyway:

First, the Senate provision would not change the current standard for black-bag jobs, since the Reagan Executive Order uses the FISA standard. The FISA standard is a hybrid, otherwise unknown under our Constitution and quite different from the standard usually followed by courts in approving searches under our system. It does not require probable cause to believe that the target of the search is involved in criminal activity or that the search will produce evidence of a crime. This criminal standard is the best protection against unfocused government searches, since it is tied to specific conduct defined by Congress in the criminal laws.

In contrast, the FISA standard is based on the status of the individual to be searched. It requires only probable cause to believe that the target of the search is an "agent of a foreign power."

Letter from Congressman Don Edwards opposing a proposed amendment to FISA adding physical searches.

Fifteen years of experience with electronic surveillance under FISA have demonstrated that it strikes the proper balance between the President's need to obtain vital foreign intelligence and the preservation of basic civil rights.

Response by AG Janet Reno.

You can read more than you ever wanted to know about FISA here.

 

[toddjh]

That the President is authorized to use all necessary and appropriate force against those nations, oganizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

I would argue that warrantless wiretaps are neither necessary, since they could be obtained just as easily through channels of undisputed legality, nor appropriate, since using them violates citizens' rights and attempts to usurp judicial authority.

I also agree with BPSCG (does that stand for anything, by the way? ) that the language of the resolution is troubling and possibly unconstitutional. It gives legislative license to one individual (the President) to authorize any action toward any individual he sees fit. Sounds a lot like a bill of attainder to me, de facto if not de jure.

Jeremy

 

[BPSCG]

I also agree with BPSCG (does that stand for anything, by the way? )


Not this.
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[Luke T.]

This strikes me as being unconstitutional. "All" necessary and appropriate force? "He" determines?

What is to prevent the president from having Cylinder dragged out of his house and killed on the grounds that he (the president) determined that Cylinder was an AQ September 11 accomplice? This clause appears to leave the president answerable to no one.

The President cannot have Cylinder killed. Don't be so dramatic. It's bad enough as it is.

In the AUMF, according to Senator Daschle, Bush tried to get the phrase "in the United States and" added to the joint resolution after the words "all necessary and appropriate force". It seems pretty plain that Bush planned on spying on U.S. citizens and using that resolution as his authorization.

And even though "in the United States and" didn't get explicitly added to the joint resolution, Bush has proceeded as if it was, and claims now that it is, implicit in the joint resolution.

 

[Luke T.]

No evidence that is gathered as the result of a wiretapping or search can be used against someone in court if a warrant was not obtained under FISA guidelines. Not even the AUMF gives Bush that power.

 

[Luke T.]

The mystery to me which as yet to be solved, is why Bush just doesn't follow the FISA guidelines and get ex post facto warrants.

 

[TragicMonkey]

The mystery to me which as yet to be solved, is why Bush just doesn't follow the FISA guidelines and get ex post facto warrants.

Why do you hate America so much?

 

[Random]

The President cannot have Cylinder killed. Don't be so dramatic. It's bad enough as it is.

Absolutely. The most he can do is have Cylinder arrested, held without trial, deprived of sleep, beaten, waterboarded, and otherwise physically and mentally pressured short of major organ failure.

No evidence that is gathered as the result of a wiretapping or search can be used against someone in court if a warrant was not obtained under FISA guidelines. Not even the AUMF gives Bush that power.

The evidence may not be used against them at trial (unless there’s something else buried in the latest budget bill), but it can still be used to blackmail political opponents and dissenters. There’s no evidence that Bush has done anything like that, but I find that whenever I draw an ethical line in the sand and say, “The GOP surely wouldn’t do that!”, I find that they are already doing something worse. I just don’t trust them.

The mystery to me which as yet to be solved, is why Bush just doesn't follow the FISA guidelines and get ex post facto warrants.

He doesn’t want the judicial branch to know who he is spying on. I thought that was obvious.

 

[pgwenthold]

In the AUMF, according to Senator Daschle, Bush tried to get the phrase "in the United States and" added to the joint resolution after the words "all necessary and appropriate force". It seems pretty plain that Bush planned on spying on U.S. citizens and using that resolution as his authorization.

And even though "in the United States and" didn't get explicitly added to the joint resolution, Bush has proceeded as if it was, and claims now that it is, implicit in the joint resolution.

Of course, the fact that it was _rejected_ is a pretty good indication that the AUMF was certainly NOT intended to give Bush the authorization to do what he did.

If that wasn't enough, it came out in the hearings on Monday that the AG AG (attorney general Alberto Gonzalez) actually went to the hill in 2004 to see if there was any chance of getting the FISA amended to allow Bush to carry out wiretaps without a warrant and they laughed him off. No way in heck congress was going to amend FISA to allow the president to carry out warrantless searches. Granted, he never made it to the committee that actually would be the ones to write the law that would amend FISA in this fashion (as they had done on 5 previous occasions, including twice when Leahy was chair), but his informal survey of his allies in congress showed that they would never get the votes to authorize warrantless wiretapping - so they just did it anyway and claimed they didn't need any authorization (so why did he go to try to see if they could get it? )

 

[BPSCG]

He doesn’t want the judicial branch to know who he is spying on. I thought that was obvious.

But the legislative branch knows, or at least some members do. And not just Republicans.

 

[TragicMonkey]

But the legislative branch knows, or at least some members do. And not just Republicans.

Do they? How do they know they were told the truth? That there weren't any omissions? That whatever they were told wasn't complete lies from start to finish?

The problem of having no oversight is that you have to rely entirely on credibility. How much credibility is left around there?