Slashdot Mirror
Warrantless Surveillance To Continue For Now
NormalVisual writes "It appears that the unconstitutional and controversial warrantless surveillance program being conducted by the Bush Administration can continue until an appeals court can hear the case, according to an AP article. The 6th Circuit ruled that while the lower court had ruled the program was unconstitutional, they felt that the case's chances before the appeals court and the possible danger to national security warranted their decision to let it continue despite the likelihood that the appeal process will take months."
Democracy is giving us the government we deserve.
Now, back to your big SUVs, tiny cell phones and reality television.
Perhaps we will wake up before the world turns its back on us permanently.
This is the way it's done.
1) Do something blatantly unconstitutional.
2) Get it knocked down in court.
3) Tie it up in appeals for years, continuing to do whatever you were doing.
4) Eventually get it killed by the supreme court, but have made a great run of it.
Politicians game the system and have no respect for the courts. Film at 11.
The only situation where they have been able to do this semi-legally (deemed illegal by the 6th) has been in the case of U.S. citizens communicating with foreign nationals over long-distance lines. The argument is that spying on the international wires is not a violation of the 4th Amendment because it occurs outside of American territory, nevermind the fact that one end of the wire terminates inside the U.S.
I think the court will find the action legal. The U.S. Constitution is actually pretty gray in this area because it wasn't foreseen that anyone could be able to communicate over long distances instantaneously. The U.S. has always been able to search and seize foreign mail, so that is probably the best argument they have to making long distance calls tappable.
It's a shame. The U.S. has become a place that is hostile to immigrants and travelers. Give me your poor huddled masses, indeed.
If you've got nothing to hide, then what is the big deal ?
If I've got nothing to hide, why do they need to watch me?
The theory of relativity doesn't work right in Arkansas.
http://www.online-literature.com/orwell/1984/
If you've got nothing to hide, then what is the big deal ?
3 32207&tid=217
As someone said here http://yro.slashdot.org/article.pl?sid=06/01/19/1
The only safeguard between yourself and unjustified prosecution and imprisonment is a thin, old piece of paper and people's willingness to uphold the words written on it. Please don't be under the mistaken assumption that innocence will protect you.
Well, I thought he was pointing out the unwarrented behavior of editoralizing in a news post. He has already decided that they must be "unconstitutional and controversial".
Saying they are controversial is acceptable, prejudging that they are unconstitutional is opinion.
It really is getting depressing, I mean we are supposed to be slogging it out here in the comments, not in the post. Heck, what's the point in coming here? You can get all this news in other formats, it is the discussion that is interesting.
Let the post speak for itself and if you want to argue about it, do it here NormalVision.
CowboyNeal should have edited and excisized the editorial comments from the posting.
Never answer an anonymous letter. - Yogi Berra
That's not the purpose of a constitution. A constitution doesn't grant rights to the people or offer them protection. And it isn't something that can be "enforced" on people, citizen or not.
The one and only purpose of a constitution is to set limits on the power of the government.
Read one, sometime. Ours, for example. The whole thing is a mass of "this branch of government may not do so and so, except in these very special circumstances" and "this branch of government is required to do thus and so".
Why?
Because the founders of constitutional governments are almost uniformly recent survivors of abuses of government authority. King George's belief that he could do anything he felt like (the equivalent, in his day, of the unitary executive, or the "If the president does it it isn't illegal" school of thought) did not sit well at all with our founding fathers.
--MarkusQ
Every time a case such as this, or any other criticism of the Bush administration's policies regarding terrorism comes up, we hear all but the exact same thing: We need this [power | program | law] to fight terrorism. [If you disagree, you must support the terrorists.] Why is it that we never get to hear exactly why [power | program | law] is necessary to stop terrorists? I guess they're assuming that if they beat the drum of "We need this!!!1" long and hard enough people will believe it.
But what real use is this warrantless surveillance program to fighting terrorists? If you evidence, get a warrant. If you have a shred of something resembling evidence, go to FISA and you have about a 99.8% chance of getting a warrant. If there's no time to waste, start tapping and you can file for a warrant (which in an emergency case can be approved within an hour) any time in the next 3 days. To those who support this program: What conceivable set of circumstances would simultaneously require so many resources that there isn't one intern left over to file a request sometime within the next 3 days marked "urgent" with an institution that rubber-stamps nearly every request that crosses it's path, yet also be totally unknown and not under any previous surveillance. Such a set's parameters are absurd: it doesn't exist. Bush's warrantless surveillance program is nonsense in this regard.
But debating the merits and usefulness of any such program is a moot point. The Fourth Amendment forbids any unreasonable search and any search not affirmed by a judge. The Bush administration refuses to provide evidence that the wiretaps are reasonable (instead insisting that we take it's word), and the fact that they are not affirmed by a judge is the whole point of the program. Therefore, this program is inconsistent with the Fourth Amendment and any program or law contravening the Constitution, it's Amendments, or Treaties is illegal. End of debate, national security be damned. This is a nation of law, no matter what might be convenient, useful, or even life-saving. No one with even the foggiest clue what America is about petitions to destroy the 4th Amendment because it would be a great help to other criminal investigations (and hell yes it would be more convenient and efficient to not have to deal with judges and evidence beforehand), yet when "terrorists" come up, certain people who have all rules and regulations disappear. That is wrong, and history provides abundant evidence why.
"Every time I see this argument, they leave out every mention of the fact that the wire taps happen when there's a known terrorist on the end of the line.
Every time. "
How could you possibly know that? How could you possibly know that?
Are the men who run these programs infallible? They never make a mistake?
"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."
- James Madison, Federalist #51
Computers are useless. They can only give you answers.
-- Pablo Picasso
My turn to go, 'wait...what?'
If your assertion is true, then there is nothing wrong with US troops in Berlin searching the homes of German citizens. After all, the violation of rights occurs outside of American territory.
There IS nothing wrong, according to American Law with that scenario (assuming the order was given legally through the chain of command). The 4th Amendment to USCon does not protect German citizens in Berlin. What DOES protect the German citizens in Berlin is International Law (specifically the concept of National sovereignty), and also, incidentally, the German Military. I imagine that German law also looks down pretty poorly upon foreign armies executing searches on citizens in their country.
All the techniques ever used to make men moral have been themselves thoroughly immoral... (Nietzsche)
What warrants this obviously lefty post on Slashdot? Am I the only conservative on Slashdot that actually wants to WIN against the terrorists? You can talk all day long about how many civil rights you protected at all funerals you will be attending if we DON'T do the surveillance. I am so tired of a weak, shortsided view that left winged politicians use as their foundation for "peace" that I can hardly watch the news anymore. You that disagree deserve what will happen to you. The terrorists can only win if we let them, and right now that is exactly what we are doing. What a weak country the USA is becoming. I hope the trend can be reversed!!!
Are you kidding? Where do you people come from? I mean, I've made some bone-headed statements in my life, but I do generally try to research something before I spew it forth.
Being wrong is one thing--everyone makes mistakes--but to say that frivolous lawsuits are hampering the war on terror, causing the Executive Branch to jettison the need for warrants altogether, is so far in left (by that I mean right) field that I must infer that you really are a space alien.
A lot of people here are predicting this.
I predict the opposite. I predict the Republicans will retain control over both houses of Congress.
I predict this because despite the fact that awareness of the problems of electronic voting is higher now than ever before (keep in mind that awareness and caring are not the same thing), about 40% (cite) of the country will be using unauditable electronic voting machines for the November election. That's easily enough to make it possible to undetectably change the outcome of any race that's reasonably close and where such machines are in use. And the Republicans are in a much better position to pressure the machine manufacturers into subtlely changing (via software) the results in regions that matter the most, if only because they control the two electable branches of government.
The outcome may be "surprising" in some cases, but people will accept it just the same as they always have.
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
Comments regarding FISA are perfectly reasonable in this context - the provisions of that bill are important to the present debate - but one must not lose sight of the fact that FISA was designed to counter an entirely different threat.
I've had the opportunity to study under a man that helped write the act, and while I haven't had a chance to discuss the recent developments with him, his view of FISA was that it was designed to serve a counter-intelligence role, but fails to be as useful against other threats.
Counter-Intelligence operations are fundamentally different from counter-terrorist operations. CI operations are much easier to predict, with relatively well understood actors, motives, and a much lower imminent risk to life and property. CI threats are relatively easy to pick out, relatively easy to understand. Of course, the most important word in this post is "relatively"...
Counter-terrorist operations are almost the polar opposite. Targets of foreign intelligence agencies are clear - they're after classified data and those that manage or handle it. The actors are clear - "diplomats", non-official cover officers, and Americans (in this case) with classified data. Targets of terrorists are not, as the focus of many of these groups is simply to kill as many people as possible by whatever means they can use. They don't care about classified data, they don't play games with diplomatic immunity. The actors could be foreign college students or home-grown California boys who decide to support the cause for reasons of their own, as we've seen recently.
Beyond simply acquiring data, FISA also allows for the prosecution of those who hand classified data to those who are not authorized to receive it by allowing evidence to enter into court without entering into the public record. FISA is an excellent tool for what it does. It's much more precise, limited, and focused on its threat.
Counter-terrorist operations require a wider approach - something of a "drag net" - for them to be successful. Pre-9/11 U.S. counter-terrorism was based largely on luck - case in point being the capture of the WTC '93 bombers, whose cell was unraveled because a member thereof just couldn't leave behind the deposit on his truck. More recent attacks should provide ample evidence that we can't fall back simply on luck any longer - we must be more active in preventing attacks rather than mopping up after them.
I think there is room for debate on this matter, and I do not believe that Benjamin Franklin quotes nor tradition should hold us from implementing laws we need to protect ourselves. Of course, this should occur within reasonable limits, in accordance with majority will and proportionate to the threat - which is growing and innovative itself - and without completely losing national character.
A quote I read recently sums up my position:
"To lose our country by a scrupulous adherence to written law would be to lose law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means." (Letter from Thomas Jefferson to John B. Colvin, September 20, 1810, quoted from Terrorism Freedom and Security: Winning Without War, Heymann, MIT Press, 2003, pg. xi)
Of course, this view must be tempered - we must be careful about those means we do and do not sacrifice - but we also should not sacrifice our nation on the altar of law. There is a time for dogmatic adherence a time to take a more pragmatic view rooted in self-preservation. We should slip from the first to the last cautiously, infrequently, and with friction and great reservation. Yet sometimes, we must slip to survive and pursue our own self-preservation.
I thank you for your comment and for what it brings to this discussion.
You are flat out wrong, and the supreme court says so:
The third relevant Supreme Court case is Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Hamdi was an American citizen who was captured on the battlefield in Afghanistan and sued the Defense Department, claiming that his indefinite detention as an enemy combatant was unconstitutional. The Court upheld Hamdi's detention, while also ruling that he was entitled to a limited hearing regarding the facts of his detention. The government offered alternative theories in support of Hamdi's detention; the Court's plurality opinion describes them as follows:
The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force].
President Bush was given AUMF in 2001 by Congress. That gives him War Powers Act powers as defined in the war powers act of 1973. End of story.
BTW, nice sig inciting to violence. =)
Never answer an anonymous letter. - Yogi Berra
You do realize this is an arguement based on the First Amendment primary, brought by news reporters:
r yID=20060817-060255-3001r
The ACLU had brought the case on behalf of a group of reporters, academics, lawyers and activists who believed that their communications with clients, sources or others might have been monitored by the National Security Agency as part of the program, thereby violating their Fourth Amendment guarantees against unreasonable searches, and chilling their First Amendment rights to freedom of expression and association.
http://www.upi.com/SecurityTerrorism/view.php?Sto
They haven't proved they were prosecuted by facts found by being tapped, they are saying they might have been tapped and that it is keeping their sources from being frank with them.
It is a pretty weak standing, and likely the first thing that will go on appeal, did they have standing to bring a suit?
Lower court, probably. Higher court? Unlikely.
Never answer an anonymous letter. - Yogi Berra
That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.
... thereof". Provided of course those laws are "necessary and proper". Of what is necessary, only the Congress should be considered a competent judge. With respect to propriety, I would argue that a law would be improper if and only if it would would amount to the legislative branch appropriating an Article 2 power for itself. Requiring accountability to the other branches does not stop the President from doing anything which is within his lawful power.
An important distinction needs to be drawn though. Because the president has the power to conduct surveillance as part of his article 2 powers doesn't mean he has an unlimited license to do any surveillance he wishes. Nor does it preclude some form of oversight by the other branches, provided that oversight doesn't amount to an unconstitutional restriction on his Article 2 powers. For practical purposes he can't be free from oversight, because he has no authority to spend money on his own.
To say that any attempt to creates laws regulating the President's exercise of his Article 2 powers is unconsitutional would be a very sweeping assertion. For one thing, it encroaches on a Congressional constitutional power granted in Article 1, Section 8: "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The Congress also has the power to regulate the military forces, literally the land and naval forces, but clearly this doesn't preclude the regulation of the air force, which didn't exist back then. Nor, if we are arguing they are being used in the conduct of war, should it preclude the regulation of intelligence services.
So, the Congress can create laws which govern how the President uses his contitutional powers, since the exeuctive branch is part of "the government of the United States, or in any department
The style of relationship that is supposed to exist between the executive and legislative branches was developed between George Washington and the Continental Congress during the Revolutionary War. Early on Washington was vexed by congressional arm chair generals who wanted to direct the war by dispatch. John Adams was an admirable man in almost every respect but his character was marred by his firm belief he was smarter than everyone else around him. Apparently Adams was among the worst offenders. Washington developed an approach to this problem that proved highly effective, not only at securing for himself ample independence for his conduct of the war, but enthusiastic legislative and public support. He worked like hell to keep Congress "in the loop" (to use a modern metaphor). In return he could count on Congress to reach a little deeper when he needed its support. This consultation with his civilian superiors and his field commanders did not come easily to Washington, but it earned him the tremendous stature he enjoyed after the Revolution.
The commonly used phrase "secret wiretapping program" is semantically loaded, because it forces a "take it or leave it" on you. Every wiretapping program has to have an element of secrecy; to say you are against "secret" wiretapping programs sounds like you are against wiretapping programs in general. We end up rhetorically wrassled into a position where it looks like we're against the goals of the program if we thing the program is bad.
A phrase that would more correctly capture our concerns is this: "unaccountable wiretapping program."
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
It's amusing how caselaw inserts weird things into our laws. In this case, it's being argued that
has an implicit "unless the violators say 'national security' is involved."
Go back in your mind to 1789 when the words were written. People had their former unhappiness with King George's rule on their mind, and didn't like how officials would just barge in and do whatever the hell they wanted without any court oversight. The framers didn't want people like Sam Adams or Thomas Paine to be unfairly harassed without due process. Do you think they really intended for it to be ok for the British to spy on colonists without a court order, as long as the magic words "national security" were used as a justification later? Everything the revolutionaries did was counter to British "national security" since it threatened to get the colonies to break away -- and protecting those actions is exactly what the Bill of Rights was intended to do.
The words are clear (there is not a list of arbitrary exceptions enumerated, such as "national security" or "if foreigners are involved somehow, even if indirectly") and the intent is pretty obvious too. And yet, caselaw has amended the 4th amendment, all without that pesky and inconvenient constitutional amendment process.
"But.. but.. the constitution says the Executive has the authority to--" The 4th amendment overrides that. That's why it's called an amendment. Amendments change constitutional law, see? That's why I'm not allowed to own slaves, why Congress is allowed to collect income tax, etc. If you want to legalize what the White House is doing, you need another amendment that makes exceptions to the 4th. Perhaps you can make a good argument for why it's a bad idea for the 4th Amendment to be as broad as it is -- maybe national security exceptions are really a good idea -- but there is an established process for changing the law. Follow it.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.