Wiretaps and the Fourth Amendment

[Cylinder]

Do you feel that the government has the right to violate the constitution at will?

No. The question I posed is the same line of reasoning that the Supreme Court uses when testing for a reasonable nature to a governmental action. Absent a compelling and legitimate governmental interest, searches become unreasonable under the 4th Amendment. It's why the cop who stops you for speeding gets a weapons search without any cause for suspicion.

 

[Elind]

Why do so many people act like Bush is assuming powers unprecedented in time of war? What he is doing is mild compared to what FDR did in WWII, Lincoln in the Civil War, and even Kennedy during peace time.

Probably they would have done the same for them, and predicted doom gloom and a slipperyslope end then too.

Some people have little faith in the robustness of our system. They always forget we have the NYT and Washington Post guarding us, don't we?

What, me worry?

 

[Ladewig]

Why do so many people act like Bush is assuming powers unprecedented in time of war? What he is doing is mild compared to what FDR did in WWII, Lincoln in the Civil War, and even Kennedy during peace time.

Because all those folks (and George Washington, too) did their electronic surveilling before 1978 when the FISA law which limits the scope of electronic surveillance was passed.

I am glad that no one here put forth the argument that only guilty people are being observed and that innocent people who have nothing to hide should not worry about the limits of these intrusions. It does seem that the people who do put forth that argument are among the first to hide behind the law when it serves their purpose - e.g. Rush Limbaugh accepting help from the Godless ACLU to prevent search warrants from being served or Dick "shoot 'em up" Cheney stopping Freedom of Information Act requests about who attended the energy task force meetings.

 

[Elind]

I am glad that no one here put forth the argument that only guilty people are being observed and that innocent people who have nothing to hide should not worry about the limits of these intrusions.

No one has said that (?) because it is a stupid argument given that there is not much point in such surveilance if one already knows who is guilty without doing it.

It does seem that the people who do put forth that argument are among the first to hide behind the law when it serves their purpose - e.g. Rush Limbaugh accepting help from the Godless ACLU to prevent search warrants from being served or Dick "shoot 'em up" Cheney stopping Freedom of Information Act requests about who attended the energy task force meetings.

That is a what is called a strawman. Really, I just looked it up.

 

[WildCat]

Because all those folks (and George Washington, too) did their electronic surveilling before 1978 when the FISA law which limits the scope of electronic surveillance was passed.

Close, but no cigar. They were able to do it because that is the power granted to the Commander -in-Chief in times of war, and the Congress can pass no law to curtail the inherent powers of the CiF. That would take a Constitutional Amendment.

Remember, we're talking about wartime intelligence-gathering here, not gathering evidence for a criminal prosecution.

It does seem that the people who do put forth that argument are among the first to hide behind the law when it serves their purpose - e.g. ...Dick "shoot 'em up" Cheney stopping Freedom of Information Act requests about who attended the energy task force meetings.

The Supreme Court, in a 7-2 ruling, sent the case back to the lower court w/ instructions that there needed to be a very high threshold the plaintifs would have to meet to get that FOIA request.

The seven-justice majority, in an opinion written by Justice Anthony Kennedy, emphasized that it was directing the appeals court to set a very high threshold for disclosure of documents from the task force.
The justices assailed the sweeping request for documents by the Sierra Club and Judicial Watch, calling it “unbounded in scope” and “anything but appropriate.”

That wasn't just the conservative justices in that ruling, and it's unlikely the case will meet the threshold set for it.

 

[Ladewig]

No one has said that (?) because it is a stupid argument given that there is not much point in such surveilance if one already knows who is guilty without doing it.



That is a what is called a strawman. Really, I just looked it up.

Someone had told me that Rush had put forth that argument. I should have checked for a reliable source before posting. I've just finishing searching and cannot confirm that Rush said that. I was wrong to post it.

 

[Elind]

Someone had told me that Rush had put forth that argument. I should have checked for a reliable source before posting. I've just finishing searching and cannot confirm that Rush said that. I was wrong to post it.

No problem, no doubt somebody tried it, but even if he had it is still changing the basis of the original argument. Just because someone makes a wrong assessment about one argument, doesn't prove the original wrong. Isn't that the definition of a strawman?

 

[President Bush]

... able to do it because that is the power granted to the Commander -in-Chief in times of war, and the Congress can pass no law to curtail the inherent powers of the CiF. That would take a Constitutional Amendment..

What can't the president do (because of the power granted to the Commander -in-Chief in times of war) under your argument? If I really were President Bush, why couldn't I order Private Joker to break into your house and kill you (under my inherent powers as Commander-in-Chief)? Can you logically rebut this?

That there are some powers of the President that cannot be limited by Congress is true. They are detailed in the Constitution. Seeking (and getting) advice from Cabinet officials as he/she sees fit is an example of a power that Congress cannot limit. The president granting pardons is another. An Act of Congress acting to limit the pardon power would be useless because the President's authority with respect to pardons is all powerful.

I believe these are called exclusive powers. Not to be confused with default powers, which are exercisable by the President even without Congressional authorization, but nonetheless subject to Congressional override.

Of course, this is a Fourth Amendment thread. And I won't argue against the President having the authority to order wartime warrantless surveillance as Commander-in-Chief. Lots of court precedent there allowing exceptions to the Fourth Amendment prohibition against unreasonable search and seizure.

But there's a difference between warrantless surveillance carried out on the President's own authority and such surveillance conducted in violation of a Congressional prohibition such as FISA. Wishing that weren't so won't make it go away.

 

[Beerina]

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?

No, and Congress will never declare a war regarding terrorists -- because that would clearly activate the "acts of war" escape clause in everyone's insurance policy. So our "war" is that in rhetoric and reality, but not in legal definition. Gotta love politicians.

 

[Beerina]

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.

That is the big problem, anyway, isn't it? There can be no reason for not going to the secret court unless they are listening in to people they have no remote reason to listen to whatsoever. Since they do it after the fact, they must be afraid of being denied.

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

I have little problem with the wording since it doesn't really add to the president's power -- he's always had the authority to defend the United States. As came out in the old Iran-Contra thing, pretty much Congress' only method of control is the purse strings over the military. And that's largely Congress' fault for not claiming their rightful authority to declare war. When push comes to shove, they just issue these weak-kneed declarations of support "authorizing" the president to do things, the first of which is the president claiming said authorization is not needed.

 

[Beerina]

No way in heck congress was going to amend FISA to allow the president to carry out warrantless searches

Congress cannot violate the Constitution any more than the President can. But at that point, with 2 of the 3 rings against freedom, you'd have to hope for a strong Supreme Court made up of liberals and libertarian-style conservatives.

 

[Cylinder]

I cannot speak for other members, but I'll give these questions a shot.

What can't the president do (because of the power granted to the Commander -in-Chief in times of war) under your argument?

Generally, any action targeted against persons or entities not belonging to the group of "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," and actions against those groups that fall outside of the scope of "necessary and appropriate" incidents of war.

If I really were President Bush, why couldn't I order Private Joker to break into your house and kill you (under my inherent powers as Commander-in-Chief)? Can you logically rebut this?

There are instances where the President would have this power. One need not look to hypothetical in this instance, since the President has already authorized civilians to be engaged who happened to be on hijacked airliners which failed to respond to the direction of controllers.