Slashdot Mirror

← Back to Stories (view on slashdot.org)

Warrantless Surveillance To Continue For Now

Posted by ryuzaki0 on from the watching-the-watchmen dept.

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."

37 of 402 comments (clear)

  1. hmm... by User+956 · · Score: 5, Funny

    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?

    --
    The theory of relativity doesn't work right in Arkansas.
    1. Re:hmm... by Anonymous Coward · · Score: 5, Informative

      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.

    2. Re:hmm... by funwithBSD · · Score: 3, Insightful

      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
    3. Re:hmm... by Elemenope · · Score: 4, Funny

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

      Now, if that only worked in reverse...

      --
      All the techniques ever used to make men moral have been themselves thoroughly immoral... (Nietzsche)
    4. Re:hmm... by NormalVisual · · Score: 3, Interesting

      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.

      --
      Please stand clear of the doors, por favor mantenganse alejado de las puertas
    5. Re:hmm... by funwithBSD · · Score: 5, Informative

      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

      --
      Never answer an anonymous letter. - Yogi Berra
    6. Re:hmm... by funwithBSD · · Score: 3, Insightful

      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
    7. Re:hmm... by funwithBSD · · Score: 3, Insightful

      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.

      --
      Never answer an anonymous letter. - Yogi Berra
    8. Re:hmm... by Darby · · Score: 4, Interesting

      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.

    9. Re:hmm... by morleron · · Score: 5, Informative

      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

      --
      Impeach Barack Obama for violating the Constitutional requirement to be a "natural born" citizen to hold the office of P
  2. It's been said by a smarter person than I by Anonymous Coward · · Score: 4, Insightful

    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.

  3. Typical by failure-man · · Score: 4, Insightful

    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.

    1. Re:Typical by dunkelfalke · · Score: 4, Interesting

      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.

      --
      Conservatism: The fear that somewhere, somehow, someone you think is your inferior is being treated as your equal.
  4. U.S. citizen foreign national by BadAnalogyGuy · · Score: 5, Insightful

    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.

  5. touche by User+956 · · Score: 4, Insightful

    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.
  6. This is good. by Animats · · Score: 4, Informative

    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.

    1. Re:This is good. by kcbrown · · Score: 3, Insightful
      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.

      --
      Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
  7. Re:U.S. citizen foreign national by LiquidCoooled · · Score: 3, Funny

    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?

    --
    liqbase :: faster than paper
  8. We have all been here before... by ExFCER · · Score: 3, Insightful

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

  9. Specific law covers this case by Beryllium+Sphere(tm) · · Score: 3, Interesting

    >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.

    1. Re:Specific law covers this case by E++99 · · Score: 3, Informative
      >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.
  10. Re:So ? by Anonymous Coward · · Score: 3, Insightful

    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.

  11. All hail the Emperor by Anonymous Coward · · Score: 3, Informative

    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?

  12. That's not the purpose of a constitution by MarkusQ · · Score: 4, Insightful
    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

  13. Arguments for this are getting^Wstale. by The+Master+Control+P · · Score: 4, Insightful

    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.

    1. Re:Arguments for this are getting^Wstale. by Beryllium+Sphere(tm) · · Score: 3, Insightful

      >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).

  14. Re:Don't leave things out by lawpoop · · Score: 4, Insightful

    "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
  15. Re:Don't leave things out by TheRealSlimShady · · Score: 4, Informative

    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?

  16. Re:U.S. citizen foreign national by Elemenope · · Score: 3, Insightful

    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)
  17. Political Garbage by Aceheaton · · Score: 5, Insightful

    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!!!

  18. Re:U.S. citizen foreign national by Alwin+Henseler · · Score: 5, Funny

    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.

  19. FISC doesn't handle lawsuits, frivolous or not by misanthrope101 · · Score: 5, Insightful
    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.

  20. FISA designed to counter a different threat by ChePibe · · Score: 5, Insightful

    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.

    1. Re:FISA designed to counter a different threat by QuickFox · · Score: 5, Insightful

      "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.

      --
      Terrorists can't threaten a country's freedom and democracy. Only lawmakers and voters can do that.
  21. Re:Kinda biased post by Beryllium+Sphere(tm) · · Score: 4, Interesting

    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.

  22. Let's be careful here. by hey! · · Score: 3, Insightful

    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."

    --
    Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
  23. Imagine if "national security" excuse used in 1775 by Sloppy · · Score: 3, Insightful

    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.

    --
    As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.