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."

Comments

hmm...

[User 956]

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

Is it just me, or is this sort of behavior completely unwarranted?

Re:hmm...

[TommydCat]

I appeal to your sense of compassion to stop the bad puns, as you're only trying to court the trolls. We'll be watching...

Re:hmm...

[TubeSteak]

Reminds me of this line from A Few Good Men, where
Lt. Weinberg (Kevin Pollack) is making fun of Demi Moore:

Lt. Weinberg: "I strenuously object?" Is that how it works? Hm?
[Demi Moore] "Objection."
[Judge] "Overruled."
[Demi Moore] "Oh, no, no, no. No, I STRENUOUSLY object."
[Judge] "Oh. Well, if you strenuously object then I should take some time to reconsider."

Now replace "Demi Moore" with "the Bush Administration "

Re:hmm...

[Anonymous Coward]

Is it just me, or is this sort of behavior completely unwarranted?

The point is that the District Court realized that it didn't have the final say in the matter so they wouldn't unilaterally block its use since the Executive Branch has stated that it was of interest in national security. In the court's opinion, the wiretapping is unconstitutional. But there are hundreds (or thousands) of federal judges in the United States who often make contradictory rulings that need to be reconciled at the Appeals or Supreme Court level. Since there is no question that this case will go to the Supreme Court at some point, the District Court did the wise thing, realizing it wasn't the final say and delaying the order of its ruling until the case reaches higher levels.

Obviously this isn't popular with many people on Slashdot, but it is how the courts need to work. In the reverse, a court could, for example, declare that abortion was unconstitutional. If it didn't delay its ruling until higher courts analyzed it, it would affect hundreds of thousands to millions of women.

Re:hmm...

[funwithBSD]

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.

Re:hmm...

[Elemenope]

Now replace "Demi Moore" with "the Bush Administration "

Now, if that only worked in reverse...

Re:hmm...

[TommydCat]

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.

I believe this was the court's opinion, not the submitter's, through the formal process of judging, not prejudiced.

That's what the judges in courts do...

Where's the editorial again?

Re:hmm...

[NormalVisual]

Let the post speak for itself and if you want to argue about it, do it here NormalVision.

'Tis NormalVisual, not NormalVision. :-)

The lower court issued a 43-page ruling that explaining why it ruled the activity was unconstitutional, so it was a statement of fact and will continue to be so until/unless the appeals court rules otherwise.

Re:hmm...

[funwithBSD]

I have read it and there is nothing in the fourth amendment that says they cannot do this.

It says no UNREASONABLE searches and sezures. There are no sezures here and if you want to make that leap that a communication is a search and sezure then do remember that in these cases the OTHER PARTY is not a citizen and not covered by the 4th amendment.

The current arguement is that during previous wars the president has been able to tap into communications (paper and electronic) in and out of the United States as established by the Supreme Court. Yes, there is a congressional aproval to conduct war against the terrorists passed in 2001.

Thus, the warrentless wiretaps are not Unconstitutional as they fall under war powers as granted by Article 2 of the Constitution.

See? Not only did I read the consititution, I read ALL of it, not just the parts that fit my opinion.

Stipulation: Using the data gathered against the parties involved in a normal court of law would be hard to pull off. Using it to stop an attack or kill/capture a legitimate target is OK.

Re:hmm...

[Darby]

Yes, there is a congressional aproval to conduct war against the terrorists passed in 2001.

No, there was an approval for military action. Against Afghanistan and against Iraq based on proven lies.
There was no declaration of war and this ain't a war. It's not even possible to make it a war.

Therefore, the war powers act doesn't apply, hence it is unconstitutional.

Look at the facts, don't just parrot idiotic lies. You might not give a flying fuck about your liberty, but you are selling mine out with yours and the second amendment should be your biggest worry and that of the shitbags you defend in their assaults on all of the rest of us.

Re:hmm...

[funwithBSD]

Interesting thought there.

So it is a fact they issued ruling, but that ruling has been suspended and is on appeal.

Many more opinions have been given that contradict this one, i.e. case law is AGAINST this ruling.

Pendantic reciting of case law follows:

In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the defendant was convicted of espionage. The court wrote:

In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were "conducted and maintained solely for the purpose of gathering foreign intelligence information."

Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977), a firearms prosecution. The court said:

Foreign security wiretaps are a recognized exception to the general warrant requirement....

In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant's spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch's inherent power to conduct warrantless surveillance for national security purposes:

The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment. Instead, it relied upon a "foreign intelligence" exception to the Fourth Amendment's warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.

The court agreed with the government's position:

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], "unduly frustrate" the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.

The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the "object of the search or the surveillance is a foreign power, its agent or collaborators," and the search is conducted "primarily" for foreign intelligence reasons.

The state of the law was summed up by the Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break do

Re:hmm...

[funwithBSD]

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. =)

Re:hmm...

[funwithBSD]

You do realize this is an arguement based on the First Amendment primary, brought by news reporters:

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?Stor yID=20060817-060255-3001r

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.

Re:hmm...

[Darby]

Oh, I get it. So you should only delay the ruling if you're wrong. I

No, you missed a really simple point.

When the government asks the courts if it can fuck the people, then the answer is "no" until they can prove their case.

When it is discovered that the government is already fucking the people, then the proper response is "stop" until they can prove their case.

It doesn't have a damn thing to do with eliminating the courts.

In this case, the government decided that it was better to ask forgiveness than permission.
They knew full well that they didn't have the right and they did it anyway. They only bothered to ask permission when they were caught commiting treason.

Re:hmm...

[Anonymous Coward]

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.

That reminds me of another thing mentioned in Article II:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.

Sure, but you are assuming that this warrantless spying program is not being used otherwise. I have seen no evidence to prove either and neither have you. That's the whole issue here.

Re:hmm...

[morleron]

Why is this news? THe Bush administration has been acting in extra-legal and unconstitutional ways since 9/11/2001. Why should they stop? The majority of the American people obviously care more about being kept "safe" from supposed terrorists than they do about losing their civil liberties; after all, "No one that I know, from personal acquaintance, to be innocent has been arrested by the Bush administration". That line was actually written to me, by someone whose opinion I used to respect, by way of questioning why I expressed concern and outrage over G.W. Bush's grab for dictatorial power. So long as that sort of opinion prevails and it will, because most Americans have no idea what the difference between Natural Law rights and Positivist Law rights is, there will be no change in government policy. To paraphrase Joseph Stalin, "How many divisions does Chief Justice Roberts have?"

I asked the rhetorical question "Why is this news?" because anyone who expects that the Bush administration will respect the ruling of any court is in for a shock. They've already set the precedent with last week's passage of the "Military Commissions Act of 2006"; you know, that's the one that not only makes G.W.'s prior military tribunals legal, but goes several steps further in that the definition of "unlawful enemy combatant" is now (quoting from the Act itself):

948a. Definitions
In this chapter:
(1) UNLAWFUL ENEMY COMBATANT.(A) The term unlawful enemy combatant means
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Notice how this language does not exclude the possibility of designating American citizens as "unlawful enemy combatants". Note further how the power of determining who is an unlawful enemy combatant rests solely with "a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." and that there is no requirement that such findings be based on meeting any part of the defintion given in part (i), e.g., the President can declare anyone he wishes to be an enemy of the State. There is no recourse to the criminal justice system to appeal any such ruling, nor are writs of habeus corpus allowed, nor are civilian defense attorneys to be part of any Military Tribunal process, nor does the defendant any longer have the privilege of invoking his 5th Amendment right agains self-incrimination. Other civil liberties are also trampled upon by this act, including the right to a speedy trial and the right to examine the evidence against one. Again, from the Act itself: (these refer to parts of the Uniform Code of Military Justice which are not to apply to "unlawful enemy combatants")

(d) INAPPLICABILITY OF CERTAIN PROVISIONS.(1) The following provisions of this title shall not apply to trial by military
commission under this chapter:
(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts martial
relating to speedy trial.
(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory
self-incrimination.
(C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation.
(2) Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by this chapter."

The Act further specifies that the Geneva Convention may not b

Re:hmm...

[hcob$]

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Well, he's using his powers granted in the constitution... so I'd say he's following up on that oath.

ure, but you are assuming that this warrantless spying program is not being used otherwise. I have seen no evidence to prove either and neither have you. That's the whole issue here.

Firstly, do you have the same security clearance of the Senate Intelligence Comittee members or of the President? If not, you won't see the evidence for which you're looking for another 50 or so years. Congress was informed and they deemed it OK. Only after it was revealed in an illegal leak of classified information and contorted by the Media did it become a probelm.

Re:hmm...

[Dr. Blue]

Interesting opinions there. I'd suggest that you've got several things wrong however.

First, the ruling hasn't been suspended. The execution of the ruling has been suspended. The ruling itself stands until such a time as another court overturns it, which hasn't happened yet.

Second, while you certainly seem convinced that "case law is AGAINST this ruling," a lot of people who know an awful lot about the law disagree with you. In fact, a judge wrote a very clear ruling about why this NSA program IS unconstitutional.

Frankly, most of the citations you give are simply irrelevant. Pretty much everything you cite comes from before FISA, and FISA was in fact put in place precisely to counter those kinds of things. The one thing you have in there that is recent and might apply is the 2002 decision, from a sealed case, which does not necessarily speak to all of this specific program. For example, was this pure foreign surveillance (which the President most certainly has the authority to do), or is it domestic intelligence (where one endpoint of the conversation is in the U.S.), which is what the NSA program is doing (and which I'd argue is in a very straightforward way against FISA) - I think the only way you could possibly rule that this program is consitutional would be to rule that FISA itself is UNconstitutional. I think it's a serious stretch to say that will happen.

So we'll see how this goes - you seem quite convinced that the program is constitutional, and there are people who agree with you (primarily within the Bush Administration, but there are a few independent people who agree). I am quite convinced that the program is UNconstitutional, and there are probably significantly more people who would agree with that (and is what the most recent standing court decision says as well). Eventually this will make it's way to the Supreme Court, and the only opinion that will really matter in the end is what they say.

Re:hmm...

[Darby]

I don't think I said anywhere that none of the issues are the fault of the US or Israel.

No, you said that they hate us just becaise we're us and completely failed to address the fact that we have given them plenty of reasons to hate us.

Years of our policies have gotten us to where we are today, and they aren't just policies that were started when Bush Jr. took office. You post like you know exactly how to fix everything yet you don't offer up many ideas. I feel like I'm conversing with John Kerry..."bush sucks, but I don't have any ideas of my own, oh yeah bush sucks."

I'm aware that there were problems already before we got Bush.
My point is that given his multiple acts of treason, and crimes against humanity in specific his entirely made up excuses to invade Iraq that as long as we continue to allow him to keep his office and do nothing to punish him for his crimes then we are saying loud and clear to everybody in the world that we do not give a flying fuck about integrity, honesty, decency or anything else of that nature.

The simple fact is that until we do clean our own house and do show that we actually do stand against murdering a bunch of innocent people to steal their shit, that there are no ideas that can do anything to fix anything.

As long as we continue to *prove* that we are a nation of liars, thugs, and murderers then nobody in their right mind coulkd possibly believe a damn thing we say.

*That* is the problem that has a simple solution.

The problems in the middle east are complex and do not admit a simple solution. We can not even begin any meaningful discussion of addressing it until we do deal with the elephant in the living room.


Oh, you did offer up one idea, cut Israel off and let them get pushed into the ocean.

It's a better idea than blindly supporting *everything* they do and condemning *everything* the Palestinians do.
Dealing with it in an honest manner would go a long fucking way to helping, but it is the exact same problem we face in terms of credibility and caused by the exact same idiotic black and white absolutist thinking.


I think my whole previous post was about how things aren't black and white. You seem to think things are easy to fix, just toss Bush and all will be right with the world. That seems like a pretty black and white idea to me. I also don't think I mentioned anywhere of people being pure evil. Way to put words in my mouth.

No, tossing Bush will not fix everything. It will make it *possible* to even start thinking about real fixes. There is a major difference there. As long as he is in power and even after, as long as he is not prosecuted for his crimes, then our integrity will be shit. That is the point that you are failing to get.
It is a very simple solution to that part of the problem. But until that happens it isn't even possible to talk about a solution to the other issues.


And what domestic issues does this fix? With technology the way it is nowadays the wiretapping issue was bound to come up regardless. Better to have it be settled by the supreme court now rather than later.

The complete lack of integrity which we as a nation have demonstrated by allowing Bush to remain in office after blatantly making up lies in order to carry out a plan the members of his administration had had in place since Clinton was in office.
Hell making up the lies in response to an attack on our nation was part of the fucking plan or do you not even read what your dear leaders write and weren't aware of that little fact?

And dear lord, since people are likely to abuse technology it's therefore good that the President knowingly violated the law and the constitution?
Where do you come up with this stuff?


If world politic were as simple as you seem to think we should've had world peace years ago.

Had I said that, you might have a point. If it were possible to be trusted when everybody knows you're lying through your teeth, then there wouldn't be a *need* to fix that first.

It's been said by a smarter person than I

[Anonymous Coward]

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.

Typical

[failure-man]

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.

Re:Typical

[dunkelfalke]

But you still can learn something from EU:

1) Give records of european flight passengers to a country without data privacy
2) European court of justice says: wrong legal basis, find a new legal basis until 30. September or stop by then
3) 30. September passed, no new legal basis, everything goes on as usual
4) This violation of a court decision is then called "legal vacuum"
5) The airlines won't get sued because "it is not their fault"

But wait, it gets even better

1) SWIFT gives the bank transaction data to the US intelligence
2) It is proved that it is against EU law
3) SWIFT sais it is not against US law so it is a legal grey zone and they can go on as usual

And because EU-Comission thought it is fun it is thinking now about giving phone communication data to US.

Re:So ?

[NoGuffCheck]

then i guess you will be first in line for the daily cavity search...all in the name of freedom!

i call flaimbait on ur ass!

U.S. citizen foreign national

[BadAnalogyGuy]

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.

Re:So ?

[bennomatic]

It depends on who defines what you "need to hide".

What if it became illegal to have blue eyes? To be left-handed? To have a black or Jewish grandparent?

It's a big deal. Trust me.

touche

[User 956]

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?

Excuses, excuses!

[themushroom]

> and the possible danger to national security warranted their decision to let it continue

That's the excuse for everything. You name it, and some pro-security / anti-terrorism phrase will be tossed out, regardless of how irrelevant it factually is. Must be nice to have a bugaboo for all occasions.

Just another year and a month, folks. Just another year and a month.

This is good.

[Animats]

This is OK. Because this is no longer an urgent issue for Congress, the bill to legalize it probably won't make it through Congress before the election. Especially with the Republican leadership distracted by their pedophile problem. By the time this gets to court, either or both houses of Congress will be controlled by Democrats. Which means that Congress can and will investigate this.

Remember, Congress has the real power in the United States. It doesn't look like that when both houses are controlled by the party that has the White House, and party discipline is strong, but that's an unusual situation, and one about to end. The United States Government works better with some tension between Congress and the President; it keeps both ends of Pennsylvania Avenue from going off the deep end.

Re:This is good.

[kcbrown]

By the time this gets to court, either or both houses of Congress will be controlled by Democrats. Which means that Congress can and will investigate this.

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.

Re:U.S. citizen foreign national

[LiquidCoooled]

If your constitution is out of date, what is the process for making an amendment?
Do you just submit the changes to CVS and let it filter through?
Perhaps a Patch Tuesday idea could be implimented?

We have all been here before...

[ExFCER]

http://www.online-literature.com/orwell/1984/

Re:We have all been here before...

[lawpoop]

Seriously, no joke, Great Britain now has shouting telescreens.

Long Live Big Brother!

Specific law covers this case

[Beryllium Sphere(tm)]

>The U.S. Constitution is actually pretty gray in this area

Not really. It says the Executive has to enforce laws passed by Congress, including the 1978 law that regulates eavesdropping on foreign communications.

>The government says it can't always wait for a court to take action.

And doesn't have to. Within the law, they can (and do) wake a judge up at three in the morning, or even get approval after the fact. They can start wiretapping the instant they choose and take it to a judge days later.

>The ACLU says the 1978 Foreign Intelligence Surveillance Act, which set up a secret court to grant warrants for such surveillance, gave the government enough tools to monitor suspected terrorists.

Actually, the President said the same thing. When he signed the amended surveillance law, amended at his request and the one he is breaking now, he said "This new law I sign today will allow surveillance of all communication used by terrorists".

The only visible reason to skip getting a warrant (which will be granted, literally, over 99.99% of the time) is to get away with things that you don't want a judge knowing about.

Re:Specific law covers this case

[E 99]

>The U.S. Constitution is actually pretty gray in this area
Not really. It says the Executive has to enforce laws passed by Congress, including the 1978 law that regulates eavesdropping on foreign communications.

I agree it's not gray, but it says the opposite of what you say it says. It says the president is in charge of national defense, and the Congress has no right to usurp that power. It further says that any application of an act of Congress (including that 1978 law) to shift Constitutional responsibilities from one branch (e.g. the President) to another (e.g. the Courts) is automatically void, and that the President has an independent responsibility to honor the Constitution, even if the Congress and the Courts disagree.

Within the law, they can (and do) wake a judge up at three in the morning, or even get approval after the fact.

Sure, but so what? Aside from it being unconstitutional to legislate a requirement of approval from a judge before spying on an enemy force, its also absurd to suggest that there should be a requirement for probable cause of a crime before spying on an enemy force, which is the only basis for getting a warrant.

he said "This new law I sign today will allow surveillance of all communication used by terrorists".

Um... that quote was in reference to the Patriot Act.

Re:Specific law covers this case

[Johnny Mnemonic]

  It says the president is in charge of national defense
 
Where does it say that? Article II Section 2: "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States".

I think there's a pretty wide divide between being put in charge of the military, and being unilaterally in charge of national defense, but I guess I can follow that reasoning. Even if it's self-serving.

and the Congress has no right to usurp that power

Oh, I see. Baloney. If that was actually true, military actions wouldn't be constrained to budgetary limitations imposed by Congress. Nor would the War Powers Act of 1973 have passed constitutional muster.

Re:So ?

[Anonymous Coward]

If you've got nothing to hide, then what is the big deal ?

As someone said here http://yro.slashdot.org/article.pl?sid=06/01/19/13 32207&tid=217

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.

The Founding Fathers knew their stuff

[Gryle]

"Much of the strength and efficency of the government, in procuring and securing happiness to the people, depends on..the wisdom and integrity of its governors."
Benjamin Franklin
Speech in the Constitutional Convention at the Conclusion of Its Deliberations - Sept 17, 1787

A rather insightful individual I'd say.

Re:So ?

[Larry Lightbulb]

If the government has nothing to hide, why do they resist providing information to commissions?

Re:freedom ringer

[Anonymous Coward]

It is unknown whether Ben Franklin actually said (the correct form): "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety." As wikiquote notes:

This statement was used as a motto on the title page of An Historical Review of the Constitution and Government of Pennsylvania. (1759) which was attributed to Franklin in the edition of 1812, but in a letter of September 27, 1760 to David Hume, he states that he published this book and denies that he wrote it, other than a few remarks that were credited to the Pennsylvania Assembly, in which he served. The phrase itself was first used in a letter from that Assembly dated November 11, 1755 to the Governor of Pennsylvania. An article on the origins of this statement here includes a scan that indicates the original typography of the 1759 document, which uses an archaic form of "s": "Thofe who would give up Essential Liberty to purchafe a little Temporary Safety, deferve neither Liberty nor Safety." Researchers now believe that a fellow diplomat by the name of Richard Jackson is the primary author of the book. With the information thus far available the issue of authorship of the statement is not yet definitely resolved, but the evidence indicates it was very likely Franklin, who in the Poor Richard's Almanack of 1738 is known to have written a similar proverb: "Sell not virtue to purchase wealth, nor Liberty to purchase power."

Note: I substituted 'f' for unicode #383 because it won't render on Slashdot.

I support the correct form of the statement, but I believe it is a little disingenuous to quote the misattributed version because it has a slightly different meaning.

All hail the Emperor

[Anonymous Coward]

Check out the latest power grab attempt here:
http://www.informationliberation.com/index.php?id= 16337

Now. Are you all still not bothered about warrentless wiretaps and monitoring of US citizens?
Are YOUR conversations at all critical of the Emperor G?

Seriously, the gubbermint is broken. How can it be repaired?

That's not the purpose of a constitution

[MarkusQ]

If someone who is not a citizen can expect to be protected by our constitution when not on our soil, can we enforce our constitution on them as well?

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

Arguments for this are getting^Wstale.

[The Master Control P]

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.

Re:Arguments for this are getting^Wstale.

[ScentCone]

Bush administration's policies regarding terrorism comes up, we hear all but the exact same thing: We need this

Funny how you're leaving out the fact that the leading figures in the party that bitterly dislikes him also say we need this. At least be honest - it gives you a better shot at being credible.

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.

You can't get evidence of what a loose group of people in several countries using a trunk full of disposable cell phones are working on until you assemble data about the network of calls. You get the evidence of these overseas communications by looking for patterns. When you get on-the-ground type intel from other sources, that can sometimes expose a cell phone number (or a collection of them) that in turn provide an anchor to more pattern matching. The only internation calls that are "tapped" are those that actually include such contacts (those, in other countries, known to have such ties). FISA doesn't help you at all when you're dealing with a shifting network of multiple, one-time-use trash phones, VoIP, etc.

If that network of international calls does point to someone here in the US as part of the picture, then the FBI does go and get one of those pretty-easy-to-get warrants, and there you go.

Re:Arguments for this are getting^Wstale.

[Beryllium Sphere(tm)]

>End of debate, national security be damned.

Please don't reinforce the fraud that national security is an issue here.

During the Cold War the USSR had spies in the US, their own US political party, and thousands of nuclear ICBMs half an hour from deleting the US from history. We won that conflict with the Foreign Intelligence Surveillance Act intact.

What we're doing now is more on the scale of suppressing the Barbary Pirates (who, remember, destroyed entire cities).

Re:Arguments for this are getting^Wstale.

[E 99]

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.

Oh yeah? I read it was 99.99% in another post. Now I'm all confused. ;-) Exactly what kind of evidence do you think is going to get you a FISA warrant??? Evidence that the person on the phone belongs to Al Qaeda? There's no law against belonging to Al Qaeda. Seriously, what sort of evidence are you suggesting that there should be before the court allows a military spy mission to proceed??? And what does that have to do with a warrant???

The Fourth Amendment forbids any unreasonable search and any search not affirmed by a judge.

It does nothing of the sort. It protects the security of people in the persons, their houses, their papers, and their effects against unreasonable searches and seizures, and it requires probable cause for a judge to issue a warrant. I don't think it has ever been interpreted by any court in the history of the U.S. to require the affirmation of a judge for any search.

The Bush administration refuses to provide evidence that the wiretaps are reasonable

If a person feels that their possessions have been searched or seized unreasonably, then they have recourse to the courts to bring suit against the Administration for their damages. At that point it becomes incumbent upon the Administration to provide evidence of the reasonability of the searches. It's an absurdity to suggest that they need to broadcast that evidence for every search they conduct, and I can't imagine why anyone would even suggest it, unless they were intentionally hoping to undermine the ability of the country to protect itself.

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

If the 4th amendment said what you thought it said, you'd have a point. Sort of.

and any program or law contravening the Constitution, it's Amendments, or Treaties is illegal. End of debate, national security be damned.

So we agree. The FISA law is illegal and void insofar as it appropriates to the courts powers given in the Constitution to the President.

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.

Well, I hope it will be a nation of law again one day. It hasn't been that for a very long time. The justices this president has appointed are the best shot at moving back in that direction. But the point about terrorists vs. criminals needs more careful scrutiny. We have never applied the 4th amendment in the same way to battlefield searches and seizures, or to spying on our enemies. I'm sure that they thought of that when writing it, which is a big part of why it is stated so vaguely... the test is simply if the search or seizure is "reasonable". Warrants have always been about criminal prosecutions, and they kept that part separate. So the question is, is it reasonable to listen to Osama's phone call to his grandma in Florida. Well, of course it's bloody reasonable.

Re:Arguments for this are getting^Wstale.

[ScentCone]

I suspect you don't really know what you're talking about and are just repeating what you think and what you've heard.

You suspect incorrectly.

The most recent "liquid explosives on a plane" threat was halted through good old fashioned British Police work.

Yes. That, and overseas eavesdropping and counter-terrorism intel from people in several other countries, backed up by more communcations monitoring. The arrests, involving UK nationals on their soil, absolutely were best handled in a law enforcement framework... but the people on the other end of the money and explosives training trail, overseas, do not have some nightstick-and-a-whistle Bobby on their tails. Not hardly.

which was that the Law Enforcement approach does a better job of preparing you for the aftermath of stopping a terrorist attack

Even if that were true (which probably depends on a lot of circumstances), that doesn't make it the only thing to do. The aftermath of the death of thousands of people still involves the deaths of thousands of people and a huge economic hit. Prepare for the aftermath, but stop it from happening in the first place, too. You can't stop everything, but the more sophisticated plots, or those that are aimed at, say, damaging a large port facility or releasing some bio-nastiness or radiological stain in a big urban center cannot be about after-the-fact prosecution. In any way that matters, that's always too late.

Re:Don't leave things out

[Twilight1]

If there's a KNOWN TERRORIST on the other end of the line, then there shouldn't be a problem getting a quick and speedy warrent from a judge. But there's the catch -- the system isn't quick and speedy. Why? We could debate that on many levels. I think it's mostly bogged down with what amounts to frivolous lawsuits. The correct solution is to fix the system to handle more volume (or reduce the volume) -- not simply bypass the system of checks and balances because it's inconvenient.

- Twi

Re:Don't leave things out

[pNutz]

Every time.

How the hell would you know? Oh, YOU MUST KNOW MAGIC!!

It really is the 5th branch of government, magic. When the other 4 branches fail us, magic lets us know that things are being done properly. Did you get one of the pointy hats?

Re:U.S. citizen foreign national

[E 99]

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

Does it specifically mention any specific "people"? No, because it applies to all people.

You're right. However, note that it specifically applies itself to tangible property that can be messed with or taken. There was no less spying or eavesdropping when the amendment was written, but the amendment is carefully addressing a distinct issue. Now I relize that the supreme court has decided that this amendment means everything up to and including that babies are fair game for dismemberment until their head clears the birth canal... however, the Constitution requires the president to take an oath of loyalty to what the Constitution actually says.

Re:Don't leave things out

[lawpoop]

"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

Re:Don't leave things out

[TheRealSlimShady]

So why don't they just get a warrant under the FISA provision? It's exactly what FISA is supposed to be for, why don't they just use it? Cause they don't want to?

Re:U.S. citizen foreign national

[Elemenope]

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.

This is not America...

[Eggplant62]

America died several years ago. Welcome to the Corporate States of North America and the White Western World.

In other words

[Kohath]

In other words, the appeals court ruled that the original court's decision was likely-enough to be overturned that it should not be enforced until the appeal could be heard.

It's so unconstitutional that the appeals court is going to rule that ... it's not unconstitutional at all.

Re:U.S. citizen foreign national

[ScentCone]

it is also impossible to expect immigrants to throw away their entire identity just for the privilege of living here

You're positing a false dichotemy, there. There's a lot of room in between "coming to America and leaving your entire identity and culture behind" and "coming to America and doing your best to make the local courts practice Sharia law" (as an example... a more mild example might be to change the centuries-long practice of presenting certain government documents and services in a single language and start adjusting the prevailing society around the immigrants, rather than asking the immigrants to adjust (not abandon) their ways around the prevailing society.

One wag mentioned this, in regards to France, these days: it's not that Moroccans want to move to France, it's that they want to move Morrocco to France.

Liberty and Freedom are not for everyone, in that view.

True, they aren't for everyone. They're for the people willing to pay the price of liberty and freedom, and those willing to take the responsibilities (like, say, taxes) that are part of that framework. For example, people who break the law, rather than taking their turn to immigrate, aren't exactly committing themselves to the responsibility side of the equation.

I see that sort of veiled racism all the time

You're confusing frustration over what people do (or don't) with what color they are.

As If This Is A New Concern?

[Smackintosh]

Honestly, I fully expect that the U.S. government has been doing this type of surveillance for as long as it has technically been possible. How is anyone shocked or surprised by this?

I only think that in today's age of technology, political correctness, and softness that it has actually been dragged out into the public for debate, whereas in the past it was simply done when it was deemed necessary, and no one questioned it.

Of course, the fear is that the power will be abused. In some cases it will. That is inevitable. However, I say the good outweighs the bad. But that's just me.

Political Garbage

[Aceheaton]

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!!!

Re:Political Garbage

[NormalVisual]

What warrants this obviously lefty post on Slashdot

It's not a "lefty" post - I'm probably closer to a libertarian than anything else, and when it comes to my views on stuff like gun control I imagine that I'd make most right-wingers look like card-carrying members of the Brady bunch.

I just don't have the unconditional (and provably unwarranted) faith in government, be it either Democrat or GOP, that a lot of aforementioned right-wingers do, and I also look at the number of people that died in the 9/11 attacks, then compare that to those things that we continue to tolerate that kill a lot more people, like drunk driving.

Re:Political Garbage

[michajoe]

While I believe your post was indeed intended to be "Funny", let me just make one observation, just in case you were being serious:

Wake up, the terrorists have already won. What happened to your "freedom" and "liberties"?

Welcome to the United Police States of America!

Re:U.S. citizen foreign national

[Alwin Henseler]

If your constitution is out of date (..)

Actually, the current version is outdated but that isn't a problem since no-one uses it anyway.

Kinda biased post

[javac]

It seems that the law may ne be as clear as the person who posted this lead us to believe. Here is someone who can make legal arguments much more effectively than I (powerline)

I believe the argument here is that cangress cannot make a law that limits constitutional authority granted to the executive branch, this would require amending the constitution. As I put it, they make a much better argument than I. However, I was just hopeing to put this in perspective

Re:Kinda biased post

[Beryllium Sphere(tm)]

That is the line the administration's lawyers have been taking.

The Constitution spells out the President's powers down to such minutiae as "he shall receive ambassadors". Unlike the Bill of Rights, it's an exhaustive list. The Founders knew how to write and they knew how to implement a kingship. If they'd wanted the President to be able to spy on Americans without any check and balance from the judiciary, they would have said so.

"Commander in Chief" is a title Hamilton took pains to distinguish from the British King's powers. It was deliberate and careful design that left Congress with exclusive power to declare war, to raise armies, and to regulate the armed services. That last is in Article I Section 8, "To make rules for the government and regulation of the land and naval forces". This is why administration attorney John Yoo was dead wrong when he said that Congress can't outlaw torture. This is why Congress can regulate the NSA.

FISC doesn't handle lawsuits, frivolous or not

[misanthrope101]

You do know, of course, that the McDonald's hot coffee lawsuit, frivilous or not, was not seen in the US Foreign Intelligence Surveillance Court (FISC)? You must know that slip-n-sue lawsuits, though irritating and probably jacking up the price of our apple sauce, are not competing for time in judge's chambers with efforts to get warrants to catch terrorists?

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.

abortions

[falconwolf]

Now I relize that the supreme court has decided that this amendment means everything up to and including that babies are fair game for dismemberment until their head clears the birth canal...

Wrong! The USSC in Roe v Wade specifically setup the trimester idea. During the first trimester the state can't block abortions. I don't recall what the rules are for the second trimester but the state can block abortions in the third trimester.

To test whether some one is really pro choice or wants to dictate is by asking them to support abortions in the third trimester if the woman's lfe is in danger. If they won't allow an abortion even if the person's life is at risk then they don't really support life.

Falcon

translation

[Anonymous Coward]

"national security" -> "coverups for high crimes and misdemeanors"

It's well past time people recognized the US is now an occupied government, taken over in a series of "stealth" coups, some violent, like the 9-11 reichstagg fire event, some non violent like the blackbox voting hijacks. This alleged government-more properly called a "dictatorship" by anyone who has any shred of decency left and can look at all the available evidence, is run like a huge mafia-like organization. That's it in a simple nutshell, it's a violent armed gang. Now I know this sucks, this really sucks, even contemplating it sucks, but it needs to be done. Ostrich head in the sand action is not working to get anything fixed back to just partially corrupt and rotten like the good old days. That was normal and tolerable - but today? The assaults on freedoms, the rape of the economy, the further divisions into the "above the law-connected rich elite" with government ties vs everyone else is simply unacceptable. It's a fraud, a lie and a clear and present danger.

  For the remaining innocent and honest people in government, comes a time you have to fish or cut bait-you are either with the fascists or you aren't. For people outside of government-do what you can, try to get the hacked voting fixed and then vote every single incumbent OUT before it is too late for even that to maybe work. They are corrupt and bribed off and blackmailed off. The only change we have seen with the combined crew in there now is for the worse, and anyone can see that. They will not, and can not, and may not do any better than that.

  The fix is in, look at last weeks 100% senate vote for the stripping of the remaining rights, quickly overshadowed and knocked off the news headlines by the relatively trivial congressional pervert "news". Ever notice all the critical votes have some distractions always appear? Something for the coup plotters to use to remind the "elected representatives" who really runs tings? that's what the pervert outing was. Remember the Patriot act original vote and the *conveniently timed* alleged "terrorist" anthrax attacks? Same thing. And this doesn't make people suspicious? please..

    This... so called legalization of the pure military dictatorship package they passed is obscene and is part of their coverups for the high crimes and misdemeanors, and a clear indicator of what they have planned that hasn't happened yet.

      ANYONE can now be called a "terrorist", by any appointed pseudo-military appointed political tribunal goon and be "disappeared" into the system. If you are aware of your friend or associate getting "disappeared",and dare to tell anyone about it, YOU can be arrested for "terrorism", said label being the magic words they use to dispose of enemies-and believe me, it is just getting started, just like you see in any other tinpot dictatorship which demands complete loyalty to the "leaders" ..or else..

  The full senate thought that was a good idea. They voted for it, ALL of them, as did the bulk of the house. They have also clearly warned any judges to "not interfere", which is a clear threat to them to sit down and shutup-"or else". That was a direct threat from the fascist AG to the judges, go look it up, it happened.

    Go find any decent legal analysis of the package, google around, they are out there now, you'll see what I have said is just the tame stuff, it is very, very bad. And it is being pushed through this catch-all of "national security".

Funny, but I don't see washington, madison, jefferson, monroe, hale, hancock or franklin agreeing with them, do you? Seems like that was the original idea they thought up, to GET AWAY FROM such a style of government.

Re:U.S. citizen foreign national

[TubeSteak]

1. Before the invention of the telephone, there were these things called "letters" which people used to convey information back and forth. The FF saw fit to protect these "letters" aka "papers" against unreasonable searches and seizures. Shame on Congress & the Supreme Court for extending that concept.

2a. "however, the Constitution requires the president to take an oath of loyalty to what the Constitution actually says" The Constitution says nothing about a "unitary executive", despite the fact that Bush mentions it in one of his signing statements.

2b. Basing your argument on "what the Constitution actually says" suggests that for every failure of imagination that the founding fathers had, the President gets to make up his own mind.

3. You forgot to mention the part about how the President "shall take care that the laws [passed by the Congress and the Senate] be faithfully executed"

Are you claiming that his oath is to the Constitution means he gets to disregard the Laws of the country & the Supreme Court's interpretation of those laws... cause, in other situations they call that a Dictatorship.

Or is this one of those "It's not Fascism when we do it" kind of things?

This isn't flamebait or a troll, I think I bring up serious, if rather pointed issues.

Re:U.S. citizen foreign national

[DavidTC]

Screw California. When did Puerto Rica stop being part of the US? They're citizens!

And, yeah, anyone who thinks immigrants will come in and take out identidy is either a racist or a moron. How many cultures have we chewed up and spit out, again?

Sure, they'll come here, and won't speak English.
Their kids will grow up to be honor students and speak near-perfect English and whatever other language.
Their kids won't speak the other languages, speak English with a local accent, roll their eyes when their grandparents talk about 'the old country', get married to someone their parents disapprove of, and generally be Americans.
Their kids will speak of their 'heritage' and have no clue what they're talking about, imagining a sort of parody of that country gained from old movies.

In 100 years the country might be slightly browner. It might have a few more Spanish words, and it might have a few more Mexican food places.

It will still be America. It will probably have changed in unrecognizable ways, yes, but that will have nothing to do with immigration, legal or otherwise.

For a country that constantly influences the entire damn world's culture via movies and television, it seems rather egotistical to worry about a single culture, especially one that already 'invaded' the entire Southwest like 100 fucking years ago. It's like worrying about Italian influence, or English influence! Hey, that ship already sailed, dumbasses. We've sucked in so much of their culture we have real Mexican restaurants and fake Mexican restaurants, and 'Mexican' dishes in normal restaurants, just like Italian food.

I wonder how much of this is anti-Catholic.

illegal imigrants paying taxes

[falconwolf]

True, they aren't for everyone. They're for the people willing to pay the price of liberty and freedom, and those willing to take the responsibilities (like, say, taxes) that are part of that framework. For example, people who break the law, rather than taking their turn to immigrate, aren't exactly committing themselves to the responsibility side of the equation.

You've heard of those 12 million illegal immigrants I bet but I also bet you haven't heard that 8 million of them also pay income and social security taxes. Fact is is that those illegal immigrants help prop up social security because they pay into SS but they won't receive any SS when they "retire" if they do in the US. And yes illegal imigrants pay income tax, in 1996 I believe the IRS specifially setup SSNs illegal immigrants can get so they can get a real job and not just work under the table.

Falcon

FISA designed to counter a different threat

[ChePibe]

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.

Re:FISA designed to counter a different threat

[QuickFox]

"To lose our country by a scrupulous adherence to written law

Terrorists do not threaten your country in any way that could make you lose your country. Nor do they threaten your freedom.

Terrorists can only threaten the freedom of a very limited number of citizens, by taking them hostage and/or by killing them. That is the only thing terrorists can do. Their power is very limited.

Any other taking of freedom would be done by lawmakers, courts, officers of the law, intelligence agents, and so on, aided by media frenzy and scaremongers. They can threaten your freedom. Terrorists cannot.

Re:FISA designed to counter a different threat

[bitmonki]

Seems to be your argument assumes that such surveillance will be useful, and won't be abused, in return for which the precedent is set for secret, universal, unlimited warrantless surveillance of electronic communications.

Such powers would never be abused to say, oh, listen in on political opponents, now would they?

How long until such powers are used to catch middle class tax "cheats", who are "shirking" (part of) their share of paying for the war that polls for months (years?) have shown at least half the country is against, and that is vastly enriching the company still paying the Vice President a yearly stipend?

Doesn't casting so wide a net then present the problem of sorting out the desirable "fish"? Hasn't that precise problem already been cited has the reason the 9/11 guys weren't stopped, i.e., we had evidence against a few, but it was fragmented amongst agencies, and thus ignored? Given the number of cell phones in use at any given moment is it even practical in the foreseeable future?

While FISA may have been meant for CI, it doesn't mean that same tool can't be used -- the issue is the government having the grounds for wiretapping vs. listening to anybody anytime/all the time to just hear what they can hear and hope for something to pop up.

Let's consider the also the source and context a bit, shall we?

In recent weeks, the US government has been debating what degree of torture is "acceptable", despite the fact that the military and CIA, et. al. are on record as saying that torture is ineffective, counter-productive and produces unreliable information. Never mind that it is just wrong.

Too, we have the Military Detainee Act, an act that essentially eliminates habeas corpus in the US, on the whim of a single individual, at present a failed businessman, recovering alcoholic who has publicly laughed at and mimicked a woman who was pleading for her life after he had signed her death warrant and refused her appeal for clemency. He has already ordered the execution of many people -- he bragged as much in a State of the Union address. But we don't know whom, or on what evidence, now do we? Consider the fact that the military has admitted that a waaaaay too large percentage (majority?) of people at Gitmo are innocent, yet they continue to hold them.

These are the people, tactics and results the Founding Fathers repeatedly warned us about.

Let us not submit to such chicanery.

Re:Don't leave things out

[jackbird]

This is how easy it is to get a FISA warrant. 16 rejections since 1979 on thousands and thousands of requests. Those 16 rejections are evidence both that it's very easy to get a warrant when you need it, and that there's some degree of oversight to the process. The FISA court can be trusted infinitely more than no oversight at all.

Intelligence agencies SHOULD have a lot of leeway when investigating something legitimate. If that leeway is allowed to extend to activities intended to benefit the party in power or the people at the top, though, we're in banana boat dictator territory (or Hoover's FBI territory if you prefer).

The administration hasn't proposed an alternative check on wiretapping, they want to do away with oversight entirely. Insisting on freedom from any and all oversight doesn't pass the sniff test.

As for allegations of spying for profit being ridiculous, the EU has already accused the CIA of providing intercepts to Boeing that helped them beat out Airbus for contracts. Now we get to do it at home, too.

Simply Discussing This..

[SQLz]

Simply asking why we are not obtaining warrants offers comfort and solace to the terrorists.

have faith--they're out there

[misanthrope101]

Does anyone know of any news sites similar to Slashdot that don't editorialize their stories to this degree?

Foxnews.com may be what you're looking for. They're both fair and balanced, and they don't spin their stories at all. They're about as close to objectivity as I've seen this side of the Drudge Report.

You've all missed the point

[EQ]

The decision in question was so laughable and poorly reasoned that it *will* be thrown out on appeal. The judge was a partisan hack whose legal analysis would have failed were it submitted as a practice brief by a first year law school student. So a stay is the proper course for the court of appeals, givne the large probability that the Government will sustain its case and overturn the original judge's poor work.

There are far many more issues open thhan were addressed int he case - and they are being argued all over the place here, while you completely miss the point.

All of you on both sides seem to have missed the court's decision itself was flawed and poorly reasoned (read the lawblogs commentaries form whenit was first released - it was panned, left and right). The original judgement was not properly based in the law at all. BOTH sides commented on this when the decision was handed down. the only people taking it at face value were the Bash Bush At Any Cost crowd. Those who actually practice law were cringing at the poor quality of the judgement and expecting this very action by the appeals court - an action that will tie down any and all further attempts to limit the warrantless intercepts until this case is resolved.

It will be eventually overturned - and THAT is why the appeals court has stayed that decision pending the appeals process. Not becasue the program in question was right or wrong, but that the decision by the judge was horrendously poor.

There are plenty of good legal arguments to curtail the warrantless intercepts. And they will eventually make it to court and have a fair hearing. Its a shame this crappy original decision is going to dealy so many of them as it is demolished and overturned in the appeals system.

Again, there are many good arguments and legal reasons that favor curtailment of the warrantless intercept program.

Unfortunately, the original decision was bereft of *all* of those good reasons, and it deserves to be tossed out as a matter of correcting bad jurisprudence.

Let's be careful here.

[hey!]

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.

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 ... 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.

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."

Not yet it isn't...

[PadRacerExtreme]

the unconstitutional and controversial warrantless

controversial: obviously

unconstitutional: Not until the courts rule it. If it is the appeal process it is NOT unconstitutional!!!

Re:U.S. citizen foreign national

[TubeSteak]

And what do they call logical fallacies in other situations?

They call them pudge (3605)

Things you've said that are wrong:
(A) That is only for laws that are constitutional.
(B) If they are unconstitutional, yes. Absolutely. Hell, it's his obligation to do so, if he feels it is necessary.
(C) Only if the Court's interpretation is blatantly and unquestionably unconstitutional. [irrelevant example here]. Then hell yes, he should ignore that.

The funny part, is that you follow up that *stunning* display of ignorance about the roles of both the President & the Courts with this gem: And yes, the President should, and will, abide by the ruling of the Supreme Court. There's no question about that.

Excuse me? No question? The above statement and your point (C) directly contradict one another.

Just to be clear, I was referring to "unitary executive" as described by John Yoo, not the literal interpretation of the words "unitary" and "executive". I feel compelled to say this, since you begin by stating the literal meaning, then supporting the John Yoo version (which, if not fallacious, is intellectually dishonest).

Either way, you seriously need a remedial class in civics. Perhaps you've absorbed too many talking points to recall exactly how the balance between the Legislative, the Executive and the Judicial branches work.

Seriously, this Republican controlled Congress may have given up on their job and refused to do anything about a Republican President usurping their powers, but that doesn't mean the United States system of Government was supposed to work that way.

GWB

[smoker2]

When GWB said "You are either with us, or you are against us" just after 9/11, he didn't mean "us" as in the United States. He meant "us" as in his group of cronies.

Given the amount of anti-Bush feeling on this site, I would guess that anybody who expresses such sentiments is open to accusations of siding with terrorism. And your govt. is giving him the tools he needs to back it up.

BTW, if the US became a fascist dictatorship, and there was a popular uprising against it, you do realise that you would all be terrorists ?

Then what you gonna do ?

I guess you can't wrest control of the country from the dictator without breaking the law, so are you just going to give up ?

The law is supposed to be by the will of the people, not against the people.

Government sponsored FUD is also terrorism, just at a more insidious level.

Way to go mods.

[Quiet_Desperation]

Race baiting is now modded insightful. :( I'm sorry, but that's fricken embarassing.

Imagine if "national security" excuse used in 1775

[Sloppy]

It's amusing how caselaw inserts weird things into our laws. In this case, it's being argued that

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

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.

Are you even paying attention?

[Grendel Drago]

The whole point is that the wiretaps are being done to conversations that at least one citizen is a part of. While it's nice to know that you're happy to run right over the rights of people who have the misfortune to live elsewhere, it's not really relevant to the question at hand.

Not to mention that they're being done with absolutely no oversight, no checks or balances. Without at least something like the FISA court, there's no way to know who's being wiretapped.

Which law is Bush upholding? The FISA statute which states that no foreign intelligence gathering can be done without their say-so? The Fourth Amendment? The constitution itself, which states that he's not above the law, and can't just start issuing kingly decrees when he disagrees with said law? Executive Order 13292, which prohibits the use of security classification to hide illegal acts? If he was so certain that the program was legal, why did he lie about it before the story came out, claiming that all wiretapping was done with a warrant?

And what "agenda" does the lower court have in this case?

We can moan here as long as we want...

[darkfire5252]

We can complain here about liberty infractions as long as we want, no one is listening to us. We can complain to others who feel the same way that we do, but all that does is make both of us feel better that there are others who agree. However, all that conversation does is make us feel better, we then go about our usual lives for a few weeks content in the knowledge that because we are not alone then this sort of thing can't possibly go on forever.

WE ARE WRONG.

The American public are the people that need to care. Before they can even start to realize why they should care, they need to realize there is something here to care about. They need to be informed. WE NEED TO TELL THEM. The media won't. This stuff doesnt sell advertizing, pedophiles in the government do. This stuff doesn't sell ads, school shootings do. This stuff doesn't sell ads, because it's being swept under the carpet. I formed a group on facebook, called "America. Land of the Free." facebook is a poor media to start a movement, but it's something. It's the contribution that I can make right now, and if it seems like it's helping, I'll make another. As should you.

Here's a piece I wrote about this for my school (UT-Knoxville) paper. It got published, people read it, and there was no outcry. We need to change that.

Last week, the senate and the house of representatives both passed a bill (S 3930 and HR 6166, respectively) called the Military Commissions Act of 2006. This bill is described by our government as "A bill to authorize trial by military commission for violations of the law of war, and for other purposes." Statistically, you probably haven't heard of it. If you have heard of it, then you may know how it feels to be a member of the informed minority. The bill itself is deplorable, but the shift in American opinion that it represents is horrifying. I'll explain what the bill is in a second, but first let me tell you what it represents. It sends the message loud and clear: "We, as a people, do not care about our rights." It's saddening how we have ceded victory to the terrorists through the very act of fighting them. America, once the land of the Free, is now the land of the complacent majority. Ask yourself: Is it more important that you get decent grades this semester, or that our country remains a free nation? Now ask yourself which one you have worked harder for. Which one occupies most of your time? Now look at the news and ask yourself what is more important: a former congressman's possible affair with a young assistant, fourteen people being kidnapped in Iraq, or the American government, under the guise of keeping us safe from terrorism, trying to take away our basic rights. Because that's what this bill does. This bill, which is only a signature away from becoming law, states that if the United States government determines that you are an enemy combatant and not a citizen, then you have no right to habeas corpus. Habeas corpus! Do you know what that is? It is your right to question whether you have been lawfully arrested or just abducted by a person with a gun. It is your right to insist that an impartial person be present and agree that the government is justified in taking away your liberty. Right now, you may be thinking that this is not such a big deal because, as the law states, you are only affected by this if you are an enemy combatant (terrorist) and not a citizen. Habeas corpus is your right to argue against the charges brought against you. It is a basic human right, either everyone has it, or no one does. If you are arrested and told that you're a terrorist and not a citizen, it doesn't matter if it's true or not. The American government, at that point, has decided that you don't have the right to question it. You don't have the ability to just show passport or birth certificate. In order to challenge their decision, you'd need a writ of habeas corpus.

I could go on and on about how this right has been around since 1305, but the public doesn't care. I could explain that Germany went

Re:U.S. citizen foreign national

[pudge]

I was saying that since it was already covered in the DoI as "self-evident", they didn't need to mention that the BoR applied to all people (to the best they could), not just people of the united states

Except, that's not true. The Bill of Rights DOES only apply to the people of the United States. (Note, I am not saying "citizens" of the United States.) This is absolutely clear, and true. The DoI is not law. It's a statement of principles. And it says that BECAUSE of the principle that all men are created equal and have rights, THEREFORE they should select their own government, and the Constitution defines part of that government. But if you are not a part of that (again, not necessarily a citizen, but in the United States), then none of the Constitution applies to you, unless it explicitly says so.

Re:U.S. citizen foreign national

[pudge]

It isn't a foreign policy document. But it WAS written to be exclusively for the people of the United States, and consciously so. They wouldn't have even dreamed of trying to make it apply to anyone else.