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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."

22 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 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)
    3. 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
    4. 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.

    5. 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.

  7. 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

  8. 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.

  9. 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
  10. 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?

  11. 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!!!

  12. 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.

  13. 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.

  14. 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.
  15. 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.