posted
For physical searches, almost all jurisdictions use the constitutional limits I've described. That is, if it's constitutional, it's legal.
Not all constitutional interceptions of sound are legal, so I'll deal with it in two steps.
Constitutionally, it is a search to intercept communications if there is an expectation of privacy. If two people meet in a diner, it's not considered a search to tape their conversation, even using a directional microphone more sensitive than a human ear. But, if the two guys rented a private room, it probably would be a search. Enclosed phone booths definitely create an expectation of privacy from microphone surveillance (I'm not talking about wiretapping yet); it's not clear if the newer open public phones create an expectation of privacy from external microphones.
Purely visual surveillance using optical magnification is, so far, not a search. Infrared cameras that see through walls are searches - even if they just detect a large heat source and don't provide any real visual definition. Directional microphones stationed in a place where the officer can legally be are usually not considered searches. Laser microphones (that scan windows and use vibrations to pick up sound in the room) are not. The idea seems to be that if the light or sound is at frequencies detectable by normal human senses, amplification of those sginals is not a search. But translation of frequencies not detectable by human senses is a search subject to the fourth amendment.
The key point: if it's not a search or seizure, the 4th amendment doesn't apply. And seizure is physical - there's no doctrine of "seizing" communications merely by listening in. So only the search analysis applies. (Edit: there is a line of cases treating wiretaps as seizures; it doesn't change any of the analysis regarding probable cause or exigent circumstances.)
As far as real intercepting, listening in on a CB would not be a search. There was some question about whether analog cell phones created an expectation of privacy back when a cheap receiver could intercept calls. Current encryption for cell phones, however, does create such an expectation. So, for now, intercepting and decrypting a cell phone signal would be a search. Intercepting a wire call is pretty much a search, unless it's a party line. In Virginia, not getting off a party line when someone is using it is a crime, which might or might not create an expectation of privacy.
And, of course, international calls are still in a constitutional gray zone.
If something is constitutionally a search, it must have probable cause. To conduct such a search without a warrant requires exigent circumstances. Exigent circumstances are much less common in wiretap scenarios, because there is no physical evidence being moved. The only type of thing I could think of is if you know the person is receiving a particular call at a particular time on a particular phone - say with the location of the kidnap victim. I could make a strong case for exigent circumstances there. But, in the usual case for wiretapping involving ongoing criminal enterprise, the case is very weak that exigent circumstances can exist.
Legally, however, the restrictions are tighter. I'm not going to look it up right now, but my recollection is that the federal wiretap laws require application for a warrant before intercepting oral communications transmitted over wire or radio signals. I think there are exceptions for true public bands such as CBs. But this law definitely covers the analog cell phones which were in the constitutional gray area above.
In short, it is very hard for law enforcement to legally tap a phone without a warrant.
FISA adds another layer, but it has been discussed already in the thread.
quote:Do you believe President Bush's actions justify impeachment? * 46327 responses
Yes, between the secret spying, the deceptions leading to war and more, there is plenty to justify putting him on trial. 88%
No, like any president, he has made a few missteps, but nothing approaching "high crimes and misdemeanors." 4%
No, the man has done absolutely nothing wrong. Impeachment would just be a political lynching. 7%
I don't know. 1%
From the same article:
quote: Not a scientifically valid survey. Click to learn more.
If you click to learn more:
quote:One week in the middle of the Clinton-Lewinsky scandal, more than 200,000 people took part in an MSNBC Live Vote that asked whether President Clinton should leave office. Seventy-three percent said yes. That same week, an NBC News-Wall Street Journal poll found that only 34 percent of about 2,000 people who were surveyed thought so. To explain the vast gap in the numbers in this and other similar cases, it is necessary to look at the difference in the two kinds of surveys.
POLLS Journalists use polls to gauge what the public is thinking. The most statistically accurate picture is captured by using a randomly selected sample of individuals within the group that is being targeted, typically adult Americans.
While a poll of 100 people will be more accurate than a poll of 10, studies have shown that accuracy begins to improve less at about 500 people and increases only a minor amount beyond 1,000 people.
So, in the case of that NBC-WSJ poll, only 2,005 adults were surveyed by the polling organizations of Peter D. Hart and Robert M. Teeter. The poll was conducted by telephone and had a margin of error of plus or minus 2.2 percentage points at the 95 percent confidence level. The confidence level means that if the same poll were conducted 100 times, each one randomly selecting the people polled, only five of the polls would be expected to yield results outside the margin of error.
...
But MSNBC’s Live Votes are not intended to be a scientific sample of national opinion. Instead, they are part of the same interactive dialogue that takes place in our online chat sessions: a way to share your views on the news with MSNBC writers and editors and with your fellow users. Let us know what you think.
quote:Do you believe President Bush's actions justify impeachment? * 46327 responses
Yes, between the secret spying, the deceptions leading to war and more, there is plenty to justify putting him on trial. 88%
No, like any president, he has made a few missteps, but nothing approaching "high crimes and misdemeanors." 4%
No, the man has done absolutely nothing wrong. Impeachment would just be a political lynching. 7%
I don't know. 1%
From the same article:
quote: Not a scientifically valid survey. Click to learn more.
If you click to learn more:
quote:One week in the middle of the Clinton-Lewinsky scandal, more than 200,000 people took part in an MSNBC Live Vote that asked whether President Clinton should leave office. Seventy-three percent said yes. That same week, an NBC News-Wall Street Journal poll found that only 34 percent of about 2,000 people who were surveyed thought so. To explain the vast gap in the numbers in this and other similar cases, it is necessary to look at the difference in the two kinds of surveys.
POLLS Journalists use polls to gauge what the public is thinking. The most statistically accurate picture is captured by using a randomly selected sample of individuals within the group that is being targeted, typically adult Americans.
While a poll of 100 people will be more accurate than a poll of 10, studies have shown that accuracy begins to improve less at about 500 people and increases only a minor amount beyond 1,000 people.
So, in the case of that NBC-WSJ poll, only 2,005 adults were surveyed by the polling organizations of Peter D. Hart and Robert M. Teeter. The poll was conducted by telephone and had a margin of error of plus or minus 2.2 percentage points at the 95 percent confidence level. The confidence level means that if the same poll were conducted 100 times, each one randomly selecting the people polled, only five of the polls would be expected to yield results outside the margin of error.
...
But MSNBC’s Live Votes are not intended to be a scientific sample of national opinion. Instead, they are part of the same interactive dialogue that takes place in our online chat sessions: a way to share your views on the news with MSNBC writers and editors and with your fellow users. Let us know what you think.
I agree Dag. I also stand by my earlier post saying that the opinion surveys so far have not shown the impact of SpyGate on Bush's Presidency.
As a long ago Sociology Major, who once worked for a Polling Firm, I know about how long it took then to gather and process information. That was then, and my opinion could be wrong of course.
Posts: 337 | Registered: Nov 2005
| IP: Logged |
posted
dag, not a challenge to your statements, but what is your qualification/experience with this type of information? Or are you just a hobbyist? Again, not an attack, just curious.
Posts: 9912 | Registered: Nov 2005
| IP: Logged |
posted
I'm a 3rd year law student who intends to be a prosecutor. I have taken the course which covers this and practiced in a clinic in a prosecutors office for only one semester.
It's the one area of law in which I feel competent to go up against a defense attorney in court, and have seen direct evidence that I could stand my ground with at least three defense attorneys on the subject. This is likely more a comment on them than me, however.
However, the outline I've given in those two posts is a very basic one, avoiding dozens of complicated exceptions to the basic rules I've outlined. I feel confident in my ability to do that because I've basically skipped all the hard questions involved and pretty much all of the underlying reasoning.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
I don't know, most of the time when you expound on the law it's stuff I never learned in law school. Of course, I didn't intend to become a prosecutor, and took mostly business-related classes, but still.
Posts: 202 | Registered: Nov 2005
| IP: Logged |
posted
Dagonee, I wasn't trying to say that it was scientific or anything. Just interesting. Where would you vote on that poll?
Posts: 1592 | Registered: Jan 2001
| IP: Logged |
Even if the court were to rule it unconstitutional, at this stage I'm convinced it's a close question. The notification of Congress and FISA makes me much less worried about it.
I don't think I approve of the policy as implemented, but I'd really need to know more about the extent (not numbers) and the type of evidence that gave reason for the taps before stating a final judgment.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
Dag, how do you see all this playing out in say, ten years from now? Will the damage done to the office of the president, or our civil liberties, our national consciousness, or our connections abroad be irreparable from the events of the last, say, 4 years?
A broad question, answer however you like
Posts: 9912 | Registered: Nov 2005
| IP: Logged |
quote:Will the damage done to the office of the president, or our civil liberties, our national consciousness, or our connections abroad be irreparable from the events of the last, say, 4 years?
No. I think there have been significantly greater threats to civil liberties that have been overcome. For example, Lincoln unilaterally attempted to use military courts to try U.S. civillians in areas where Article III courts were operational. Nixon used the FBI and IRS to go after politcal opponents.
Our system is remarkably resilient. That doesn't mean we take things like this for granted. One thing I want to see is a serious discussion of these warrants, one that acknowledges the closeness of the issues and the severity of the competing secturity/liberty interests.
The reason we are resilent is that we can totally replace almost the entire government every 6 years, and can change control of the government every 4 years at minimum. (Side note: one of the reasons I don't mind SCOTUS being fairly aggressive in statutory interpretation is that mis-interpretation can be fixed by Congress and the President. Constitutional intepretation is practically non-fixable.) That resilence depends on some people getting hysterical about things like the surveillance, some people knee-jerk defending them, and, most importantly, a lot of people in the middle truly examining the issues involved.
If this goes to court, SCOTUS will clarify. I expect Congress to pass some legislation in response at some point. And I expect most administrations to not acknowledge the constitutionality of restrictions on these powers while still complying with whatever act is passed in general. The War Powers act has played out mostly like this.
quote: how do you see all this playing out in say, ten years from now? Will the damage done to the office of the president, or our civil liberties, our national consciousness, or our connections abroad be irreparable from the events of the last, say, 4 years?
Doesn't that sound just like what conservatives had said during the Clinton years?
Posts: 1918 | Registered: Mar 2005
| IP: Logged |
quote:The Justice Department acknowledged yesterday, in a letter to Congress, that the president's October 2001 eavesdropping order did not comply with "the 'procedures' of" the law that has regulated domestic espionage since 1978. The Foreign Intelligence Surveillance Act, or FISA, established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, "except as authorized by statute."
posted
So the active issue is whether congress can constitutionally restrict the President's interception of international communications which involve American citizens for foreign intelligence purposes.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
You know, between this, and several other incidents during this administration, the priveleges of being an american citizen living in the united states are rapidly being eroded. Yes, I know the rights of habeus corpus were suspended during the civil war, but at least that wasn't a war on something very nebulous, we were officially at war, and the end date of said war was not likely to be full generations into the future.
Here we've got a war on a methodology that won't be extinguished, we're not officially AT war with anyone, and we're talking about something that will take decades or more to accomplish, if we ever do accomplish anything.
And during this entire time, our presidents will have war powers? The right to detain american citizens captured on american soil, without trial or presentation of charges? The right to ignore our fourth amendment protections?
I'm sorry, this is downright scary.
Posts: 4112 | Registered: May 2001
| IP: Logged |
quote:Originally posted by Dagonee: So the active issue is whether congress can constitutionally restrict the President's interception of international communications which involve American citizens for foreign intelligence purposes.
NO, the issue is whether the court should exist at all, according to the FISA judges. If you read the article, they consider it a threat to the legitimacy of past cases, whose warrents were issued on information 'illegally' obtained through the presidencial order. And it sounds like at leat some of them are also quite upset about him bypassing the courts by executive order.
quote:Judges on Surveillance Court to Be Briefed on Spy Program By Carol D. Leonnig and Dafna Linzer The Washington Post Thursday 22 December 2005 The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources. Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court. "The questions are obvious," said U.S. District Judge Dee Benson of Utah. "What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?" Such comments underscored the continuing questions among judges about the program, which most of them learned about when it was disclosed last week by the New York Times. On Monday, one of 10 FISA judges, federal Judge James Robertson, submitted his resignation - in protest of the president's action, according to two sources familiar with his decision. He will maintain his position on the U.S. District Court here. Other judges contacted yesterday said they do not plan to resign but are seeking more information about the president's initiative. Presiding Judge Colleen Kollar-Kotelly, who also sits on the U.S. District Court for the District of Columbia, told fellow FISA court members by e-mail Monday that she is arranging for them to convene in Washington, preferably early next month, for a secret briefing on the program, several judges confirmed yesterday. Two intelligence sources familiar with the plan said Kollar-Kotelly expects top-ranking officials from the National Security Agency and the Justice Department to outline the classified program to the members. The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court. The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the United States. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law does include emergency provisions that allow warrantless eavesdropping for up to 72 hours if the attorney general certifies there is no other way to get the information.
quote:NO, the issue is whether the court should exist at all, according to the FISA judges. If you read the article, they consider it a threat to the legitimacy of past cases, whose warrents were issued on information 'illegally' obtained through the presidencial order. And it sounds like at leat some of them are also quite upset about him bypassing the courts by executive order.
Yeah, I read that. Irrelevant to my point. If Congress can't constitutionally restrict this type of eavesdropping, then the President did nothing wrong. Therefore, the FISA court's concerns would be irrelevant - there would be no wrongdoing to taint the proceedings.
You're continued refusal to even deal with this issue is telling. Carter, Reagan, Bush, and Clinton all asserted their right to intercept international communications without warrants for foreign intelligence purposes. This is not a clear question. Pretending it is makes it impossible for you to meaningfully discuss this issue.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
We need to stay away from quoting large sections of copyrighted material. Links to articles and pulling in the most salient bits is more effective anyway.
Posts: 22497 | Registered: Sep 2000
| IP: Logged |
posted
Well, theoretically the SC could declare it unconstitutional, though I doubt that'd happen, at least in the main. The current system (shift supervisor indeed) might hopefully be declared unconstitutional for being too broad in accomplishing its goals.
In which case, the President did something wrong, at least in the nebulous sense.
But yeah, no impeachment.
Posts: 15770 | Registered: Dec 2001
| IP: Logged |
We need to stay away from quoting large sections of copyrighted material. Links to articles and pulling in the most salient bits is more effective anyway.
Thanks Bob. I appreciate the feedback.
quote:Originally posted by Dagonee: You're continued refusal to even deal with this issue is telling. Carter, Reagan, Bush, and Clinton all asserted their right to intercept international communications without warrants for foreign intelligence purposes. This is not a clear question. Pretending it is makes it impossible for you to meaningfully discuss this issue.
Bottom line here is that we disagree, Dag.
This is not about law enforcement. This is a constitutional question about seperation of powers: Does the Executive branch have the authority to routinely bypass the courts for two years by executive order? This was a routine policy for two years, every 45 days. A pattern of behavior in deliberate disregard of the FISA courts' authority.
Our constitution and laws are set up to prevent this use of executive priviledge. Those powers were further defined by congress with FISA, and both the law congress enacted and due process in the courts are being bypassed by executive order.
And does the President have the authority to change Legislation by Executive order? Bush has used executive order for much more than this one incident, throughout his Presidency. He has modified and disemboweled legislation and rules that were set up by the Congress. (ie changing EPA rules and enforcement, for instance.) Those laws were the 'will of the people' and they are being discarded in favor of Corporate convenience.
All of this is a dangerously close step toward becoming a dictatorship, IMHO.
Posts: 337 | Registered: Nov 2005
| IP: Logged |
Let's be clear what it is we disagree about. I've stated this is not obviously a constitutional violation and that it is a close question under existing jurisprudence concerning separation of powers. You disagree with me, which, I assume, means you think this is a close question.
You are empirically wrong about the question being close, at least in any meaningful sense of the word close. Ultimately, this issue can only definitively be decided by SCOTUS (something which, as fugu explained, is unlikely). There are numerous people, far more qualified than we, who have made strong cases going in each direction. That's pretty much the definition of a close legal question.
quote:This is not about law enforcement.
Right. If it were, then there would be no close constitutional question. It's about foreign intelligence.
quote:his is a constitutional question about seperation of powers:
Exactly. And it's not just the Executive's powers under discussion. There is a close question as to whether Congress can interfere with the President's authority to intercept international communications involving a U.S. citizen for purposes of foreign intelligence.
quote:Does the Executive branch have the authority to routinely bypass the courts for two years by executive order? This was a routine policy for two years, every 45 days. A pattern of behavior in deliberate disregard of the FICA courts' authority.
A question which is only meaningful if FISA had authority over these types of intercepts.
quote:Our constitution and laws are set up to prevent this use of executive priviledge. Those powers were further defined by congress with FICA, and both the law congress and due process in the courts are being bypassed by executive order.
You've leapt straight ahead to your conclusion, skipping over an important analytical step.
quote:And does the President have the authority to change Legislation by Executive order? Bush has used executive order for much more than this one incident, throughout his Presidency. He has modified and disemboweled legislation and rules that were set up by the Congress. (ie changing EPA rules and enforcement, for instance.)
Bush has the power to change prior executive orders by executive order. Unless you can point me to a specific instance I haven't seen convered, the EPA rules in question are administrative rules fully within the delegated power of the administration to change.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
Here is an interesting history review from an editorial:
quote:From Republic to Empire:
Let's hope history does not repeat itself. The constitution of ancient Rome was put in place in 510 BC, when the republicans overthrew the last of the Roman kings, Tarquin the Proud. As was the case 2300 years later in the newborn USA, the introduction of constitutional order meant the rule of law and not of kings, providing liberty under law for every Roman citizen. That experiment lasted almost five centuries, until the Roman senators fell down on the job.
Although Cicero warned, with pointed eloquence, of the dangers to the Republic, in the end his warnings proved no match for strongmen like Julius Caesar and Gnaeus Pompey. They wrapped themselves in republican virtue when it suited them, but they lacked any serious belief in the fundamental principles that had formed republican Rome. They and their followers believed in themselves, and in their own vision of what Rome should be, and in little else. Plutarch tells us that the increasingly glaring unequal distribution of wealth served to make the situation exceedingly volatile. Sound familiar?
And so the Republic died, and Cicero died with it, his severed head and hands nailed to the "rostra," the platform in the forum from which he had warned the Roman people. The vision of the strongmen led first to civil war and then to empire.
If we learn from history we can perhaps avoid losing our Republic (to) a similar trap today.
Posts: 337 | Registered: Nov 2005
| IP: Logged |
posted
"There is a close question as to whether Congress can interfere with the President's authority to intercept international communications involving a U.S. citizen for purposes of foreign intelligence."
Where does the presidents constitutional authority to do ANYTHING to a US citizen other then with the consent of congress derive from? As far as I can tell, he's got authority over the military, but unless martial law is established, he doesn't have any authority other then as executive over US citizens written into the constitution.
Which means his authority to do this must come from case law, correct?
Posts: 4112 | Registered: May 2001
| IP: Logged |
posted
I dunno...Sorry to cause such angst. That's the best use of that graemlin in like forever though. Hey, whatever you need in your post to make your point.
Just a clue though, I didn't even read through that block of text. It's so much more readable on the WP website that it's just too annoying to go through it all in BB format.
Posts: 22497 | Registered: Sep 2000
| IP: Logged |
Let's be clear what it is we disagree about. I've stated this is not obviously a constitutional violation and that it is a close question under existing jurisprudence concerning separation of powers. You disagree with me, which, I assume, means you think this is a close question.
You are empirically wrong about the question being close, at least in any meaningful sense of the word close. Ultimately, this issue can only definitively be decided by SCOTUS (something which, as fugu explained, is unlikely). There are numerous people, far more qualified than we, who have made strong cases going in each direction. That's pretty much the definition of a close legal question.
quote:This is not about law enforcement.
Right. If it were, then there would be no close constitutional question. It's about foreign intelligence.
quote:This is a constitutional question about seperation of powers:
Exactly. And it's not just the Executive's powers under discussion. There is a close question as to whether Congress can interfere with the President's authority to intercept international communications involving a U.S. citizen for purposes of foreign intelligence.
That's where we part ways. Can the President throw out the constitutional protections of American Citizens by Executive order? There is no proof that these people are foreign intelligence agents. The assumption is that they are guilty until proven innocent. As noted in the previous links regarding the Patriot Act abuses, people have been arrested and held for long periods of time without those constitutional protections. In effect those searches are fishing expeditions, which is what those constitutional protections are there to protect against happening. Throw those protections out and we become a police state, not a Republic.
quote:
quote:Does the Executive branch have the authority to routinely bypass the courts for two years by executive order? This was a routine policy for two years, every 45 days. A pattern of behavior in deliberate disregard of the FICA courts' authority.
A question which is only meaningful if FISA had authority over these types of intercepts.
The court exists through it's creation by FISA so it follows that the FISA court HAD that authority through that Congressional legislation. As mentioned above, Cheney and Rumsfeld have a long history of fighting FISA. In the article quoted above it mentions that when the judges meet one point of discussion will be the question of dissolving the FISA court. Either they do or do not have Constitutional authority. If they do have Constitutional authority, then the Executive Orders in effect undermine the legality of their case work by introducing 'illegal' information into the cases they see, which opens up a whole new can of worms. The existence of that court is a waste of their time if they are unknowingly making decisions based on information that has been gathered illegally, nullifying their decisions.
quote:
quote:Our constitution and laws are set up to prevent this use of executive priviledge. Those powers were further defined by congress with FICA, and both the law congress and due process in the courts are being bypassed by executive order.
You've leapt straight ahead to your conclusion, skipping over an important analytical step.
quote:And does the President have the authority to change Legislation by Executive order? Bush has used executive order for much more than this one incident, throughout his Presidency. He has modified and disemboweled legislation and rules that were set up by the Congress. (ie changing EPA rules and enforcement, for instance.)
Bush has the power to change prior executive orders by executive order. Unless you can point me to a specific instance I haven't seen convered, the EPA rules in question are administrative rules fully within the delegated power of the administration to change.
That is true, BUT the intent of his changes through dueling Executive orders are MEANT to undermine an agency that was created to administer Environmental Laws which were created by Congress. Remove the proper administration and enforcement of those laws, and you have in effect removed the laws. This is a case of sidestepping laws (at the behest of special interests) through executive order.
Posts: 337 | Registered: Nov 2005
| IP: Logged |
quote:Originally posted by Bob_Scopatz: I dunno...Sorry to cause such angst. That's the best use of that graemlin in like forever though. Hey, whatever you need in your post to make your point.
Just a clue though, I didn't even read through that block of text. It's so much more readable on the WP website that it's just too annoying to go through it all in BB format.
Some people are lazy and don't bother to go to links ... at least that was my assumption. But you are right, and I really will try to limit by wordiness! Posts: 337 | Registered: Nov 2005
| IP: Logged |
quote:That's where we part ways. Can the President throw out the constitutional protections of American Citizens by Executive order?
You're still missing the point. I haven't said this is constitutional. I've said that constitutional schalars disagree about whether it is. This isn't really something you "part ways" about, as it is demonstrably true.
quote:The court exists through it's creation by FISA so it follows that the FISA court HAD that authority through that Congressional legislation.
Once again you've leapt right past the point of contention. It is a close constitutional question as to whether Congress had the power to limit the Executive's use of wiretaps in these situations. If Congress didn't have the power to impose those limits, then FISA did not have constitutional authority with respect to those taps.
quote:That is true, BUT the intent of his changes through dueling Executive orders are MEANT to undermine an agency that was created to administer Environmental Laws which were created by Congress.
If Bush acted within the scope of the delegated authority with respect to those rules then it was legal. He's the President, he's the one we elected to have that authority.
quote:Where does the presidents constitutional authority to do ANYTHING to a US citizen other then with the consent of congress derive from? As far as I can tell, he's got authority over the military, but unless martial law is established, he doesn't have any authority other then as executive over US citizens written into the constitution.
Paul, this has been discussed throughout this thread. The President has authority over foreign policy. Gathering intelligence is a necessary part of this authority.
SCOTUS has, in a case cited somehwere on this thread or another one, made dicta that normal fourth amendment considerations do not necessarily apply to taps of international communications for the purpose of gathering foreign intelligence.
Dicta is not authoritative, but it's highly suggestive. The same dicta suggests that the Congress can regulate such taps, but it does not define the boundaries of pwoer between the president and the congress.
Regardless, there is a lot of constitutional analysis on this going both ways, including some heavy hitters.
Since I'm not trying to advocate one way or the other, I'm not going to parse it. I'm simply trying to get people to realize that this is a close question with highly divergent viewpoints by people who specialize in powers issues.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
quote:That's where we part ways. Can the President throw out the constitutional protections of American Citizens by Executive order?
You're still missing the point. I haven't said this is constitutional. I've said that constitutional schalars disagree about whether it is. This isn't really something you "part ways" about, as it is demonstrably true.
When one legal scholar says it is legal, and another says it is not, we part ways. I agree with the one that says it is not legal. Not that my opinion will carry any weight in the final decisions.
Time will tell whether one or the other is true.
Posts: 337 | Registered: Nov 2005
| IP: Logged |
quote: how do you see all this playing out in say, ten years from now? Will the damage done to the office of the president, or our civil liberties, our national consciousness, or our connections abroad be irreparable from the events of the last, say, 4 years?
Doesn't that sound just like what conservatives had said during the Clinton years?
I was 7 when Clinton was elected, and as far as I can recall, the biggest hullabaloo in his 8 years had to do with him having sex, which in retrospect, was a pretty benign sort of controversy. No lives at stake, no civil liberties in danger. Of course of was a preteen through much of his term.
Posts: 9912 | Registered: Nov 2005
| IP: Logged |
quote:When one legal scholar says it is legal, and another says it is not, we part ways. I agree with the one that says it is not legal. Not that my opinion will carry any weight in the final decisions.
OK, please cite some caselaw or doctrine to support your conclusion.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
quote:When one legal scholar says it is legal, and another says it is not, we part ways. I agree with the one that says it is not legal. Not that my opinion will carry any weight in the final decisions.
OK, please cite some caselaw or doctrine to support your conclusion.
You're the legal scholar Dag. I am a 50 something grandmother, mother, and wife, not necessarily in that order. I am also educated fairly well, am a citizen of this country, and I am a voter. I really don't need a 'caselaw' to tell me that secret spying is illegal. We have a law - FISA - which is being ignored. There are specific legal limits placed on what Bush is doing. Even the President is not above the law.
As I mentioned on a different thread , in a probably too long quote (nod to Bob), some of the same legal authorities that helped Impeach Clinton agree that this is an Impeachable offense, and that it was and is illegal. That backs up my belief that this is a serious and illegal event in our history.
As an American citizen who seeks out the news from internet sources as well as mainstream news, I am at least as informed as anyone on the subject of what is legal or not legal in our elected officials' behavior. This is my informed belief: The President authorizing spying on Americans, and holding them in indefinate detention without benefit of counsel and due process is against our laws. If that is not against the law, then you and I are living in different countries.
Perhaps the current Administration thought it could get away with this by splitting hairs, but Clinton didn't get away with his lies and as mentioned above, no lives were at stake. The survival of our Republic dictates that these Police state tactics must stop. I pray that our Legislature has the Kahoonas to be above politics, and will stop this travesty.
Only time will tell whether my judgement (from the available facts, and from Bush's admissions) is true.
Posts: 337 | Registered: Nov 2005
| IP: Logged |
quote:We have a law - FISA - which is being ignored. There are specific legal limits placed on what Bush is doing. Even the President is not above the law.
Then please reconcile your contention with Hamdi, which authorizes detention without charges and without warrant based on the 9/11 resolution in direct contradiction to the Bail Reform Act.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
quote:If that is not against the law, then you and I are living in different countries.
I'm living in the one where complex legal questions are answered according to legal precedent, not gut reactions derived from a few op-eds.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
quote:We have a law - FISA - which is being ignored. There are specific legal limits placed on what Bush is doing. Even the President is not above the law.
Then please reconcile your contention with Hamdi, which authorizes detention without charges and without warrant based on the 9/11 resolution in direct contradiction to the Bail Reform Act.
If by your reference to Hamdi you mean Hamdi v. Rumsfeld which was decided by the Supreme Court, I don't see how that decision applies to Spygate.
quote:Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States? Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?
Conclusion Yes and no. In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O'Connor wrote that although Congress authorized Hamdi's detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government's argument that the separation-of-powers prevents the judiciary from hearing Hamdi's challenge. Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality that Hamdi had the right to challenge in court his status as an enemy combatant. Souter and Ginsburg, however, disagreed with the plurality's view that Congress authorized Hamdi's detention. Justice Antonin Scalia issued a dissent joined by Justice John Paul Stevens. Justice Clarence Thomas dissented separately. http://www.oyez.org/oyez/resource/case/1723/
quote:When the case was then sent back to the District Court, it denied the government's motion to dismiss Hamdi's petition. The court found the government's evidence offered in favor of his detention to be woefully inadequate, based mostly on hearsay and bare assertions. The District Court ordered the government to produce numerous documents for review by the judge in chambers that would enable it to perform a "meaningful judicial review," such as the statements by the Northern Alliance regarding Hamdi's capture, the dates and circumstances of his capture and interrogations, and a list of all the officials involved in the determination of his "unlawful combatant" status. The government appealed the order to produce the evidence, and the Fourth Circuit once again reversed the District Court. Because it was "undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict," the Fourth Circuit stated that it was not proper for any court to hear a challenge of his status. It ruled that the broad warmaking powers delegated to the President under Article Two of the United States Constitution and the principle of separation of powers prohibited courts from interfering in this vital area of national security. After the Fourth Circuit denied a petition for rehearing, Hamdi's father appealed to the Supreme Court, which granted review and reversed the Fourth Circuit's ruling. Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review. http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld
My understanding of this case is that it was decided that this enemy combatant still had civil rights, and was entitled to due process. I don't understand how that would apply to wholesale spying and these 'fishing expeditions' to find terrorist activities.
Posts: 337 | Registered: Nov 2005
| IP: Logged |
posted
So, what do we think of the new revelations today about all the data mining the NSA has been doing? From what I gathered in the short blurb I saw about it, if you had an e-mail sent to another country, it went through some program. Whether or not is set off any red flags, it was logged. And the same went for phone calls. Something about tracking times of day that calls are made, clusters of calls, etc., to try and see patterns that might indicate terrorists.
I'm just thinking that anyone here at Hatrack who has sent an e-mail to Jebus, Kama, Anna, or any number of other non-Americans (BtL, twinky, etc.) has had their e-mail, at the very least, data mined by the NSA.
So, still think they are only spying on "known terrorists or people associating with people with ties to groups that support terrorist groups?
Posts: 9871 | Registered: Aug 2001
| IP: Logged |
quote:My understanding of this case is that it was decided that this enemy combatant still had civil rights, and was entitled to due process. I don't understand how that would apply to wholesale spying and these 'fishing expeditions' to find terrorist activities.
Read the dissent by Scalia. The Hamdi decision dramatically cuts civil rights, severely undermining the due process protection required to detain Hamdi.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
quote:My understanding of this case is that it was decided that this enemy combatant still had civil rights, and was entitled to due process. I don't understand how that would apply to wholesale spying and these 'fishing expeditions' to find terrorist activities.
Read the dissent by Scalia. The Hamdi decision dramatically cuts civil rights, severely undermining the due process protection required to detain Hamdi.
I read the synopsis. Three of the nine justices did not side with the Government in this case. Scalia was as usual on the conservative side, ordering that his detention just be considered unconstitutional, and leaving it at that.
quote:Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the farthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in times of "insurrection" or "rebellion"), which hadn't happened; or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.
Justice Clarence Thomas was the only justice who sided entirely with the government and the Fourth Circuit's ruling, based on his view of the important security interests at stake and the President's broad war-making powers.
see wikipedia link in above post
Again, how does that apply to wholesale wiretaps and 'fishing' expeditions?
Posts: 337 | Registered: Nov 2005
| IP: Logged |
posted
We already had the legal ability to spy on our own people before 9/11. Bush's choice to bypass the legal path to doing so, and thus avoid any supervision, is a main problem in this case. The NSA is very good at what they do, but was already bogged down before 9/11.
quote:Jokingly referred to as "No Such Agency," the NSA was created in absolute secrecy in 1952 by President Harry S. Truman.
But the agency is still struggling to adjust to the war on terror, in which its job is not to monitor states, but individuals or small cells hidden all over the world. To accomplish this, the NSA has developed ever more sophisticated technology that mines vast amounts of data. But this technology may be of limited use abroad. And at home, it increases pressure on the agency to bypass civil liberties and skirt formal legal channels of criminal investigation. Originally created to spy on foreign adversaries, the NSA was never supposed to be turned inward. Thirty years ago, Senator Frank Church, the Idaho Democrat who was then chairman of the select committee on intelligence, investigated the agency and came away stunned.
"That capability at any time could be turned around on the American people," he said in 1975, "and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide." He added that if a dictator ever took over, the NSA "could enable it to impose total tyranny, and there would be no way to fight back."
At the time, the agency had the ability to listen to only what people said over the telephone or wrote in an occasional telegram; they had no access to private letters. But today, with people expressing their innermost thoughts in e-mail messages, exposing their medical and financial records to the Internet, and chatting constantly on cellphones, the agency virtually has the ability to get inside a person's mind.
quote:According to an interview last year with Gen. Michael V. Hayden, then the NSA's director, intercepting calls during the war on terrorism has become a much more complex endeavor. On Sept. 10, 2001, for example, the NSA intercepted two messages. The first warned, "The match begins tomorrow," and the second said, "Tomorrow is zero hour." But even though they came from suspected al Qaeda locations in Afghanistan, the messages were never translated until after the attack on Sept. 11, and not distributed until Sept. 12. What made the intercepts particularly difficult, General Hayden said, was that they were not "targeted" but intercepted randomly from Afghan pay phones. This makes identification of the caller extremely difficult and slow. "Know how many international calls are made out of Afghanistan on a given day? Thousands." General Hayden said.
Still, the NSA doesn't have to go to the courts to use its electronic monitoring to snare al Qaeda members in Afghanistan. For the agency to snoop domestically on American citizens suspected of having terrorist ties, it first must to go to the Foreign Intelligence Surveillance Court, or FISA, make a showing of probable cause that the target is linked to a terrorist group, and obtain a warrant.
The court rarely turns the government down. Since it was established in 1978, the court has granted about 19,000 warrants; it has only rejected five. And even in those cases the government has the right to appeal to the Foreign Intelligence Surveillance Court of Review, which in 27 years has only heard one case. And should the appeals court also reject the warrant request, the government could then appeal immediately to a closed session of the Supreme Court.
As mentioned in another post above, the terrorists that bombed the WTC were under surveillance, and were considered an imminent threat. The Bush Administration was briefed on that, and ignored that threat. In my opinion THAT shortsightedness and arrogance is the problem. Getting more data only complicates the issue, since there is that much more to sift through and more and more American citizens' rights are being stepped on in doing it.
Posts: 337 | Registered: Nov 2005
| IP: Logged |
posted
Its worth noting Dagonee doesn't like the wiretapping either, he's just not sure its illegal. He may even (though he just hasn't said his opinion on this score at all) hope it be found illegal.
Not liking something isn't a reason for it to be illegal. Agreeing with the conclusions of the arguments for it being illegal is not a reason to assume those carry more weight than those for it being legal.
Posts: 15770 | Registered: Dec 2001
| IP: Logged |
quote:Again, how does that apply to wholesale wiretaps and 'fishing' expeditions?
It's very clear you do not understand the implications of Hamdi. Anyone who thinks that decision was a victory for civil liberties is fooling themselves.
The plurality upheld the government's contention that U.S. citizens could be detained by the government without charging them with a crime. That is a HUGE intrusion on civil liberties.
Here are the protections denied to Hamdi by the plurality decision:
1.) the right to be seized only upon probable cause.
2.) the Miranda protections against self-incrimination.
3.) The right to a preliminary hearing in which the gov't must show probable cause that the defendant committed a crime.
4.) the right to an indictment by grand jury.
5.) the right to not be detained without being convicted without a finding by the preponderance of evidence that he would not appear at trial or a finding by clear and convincing evidence that he represented a danger to the community.
6.) The right to a speedy jury trial requiring unanimous conviction by 12 jurors.
Only Scalia and Stevens said Hamdi was entitled to these rights - rights specifically guaranteed in the constitution or by statute. I raged about the plurality decision on the board here.
18 U.S.C. § 3142 precisely describes the requirements for detaining a U.S. citizen prior to a trial. The Hamdi decision authorizes detention based on the 9/11 resolution in a manner that directly violates 1342. Such detention is not mentioned in the resolution.
The parallel is absolutely clear. It doesn't mean the parallel will be dispositive. It does, however, provide a very strong argument.
As to how is it relevant? Because it supercedes a specific statute (several actually) and several constitutional provisions based on the 9/11 resolution and the President's inherent powers as commander in chief and to decide matters of foreign policy. Just because it didn't allow the government to go as far as it wanted to doesn't meant the decision doesn't provide a huge precedent for the administration.
Until you acknowledge that, your reading of the synopsis is not doing you any good.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
quote:Again, how does that apply to wholesale wiretaps and 'fishing' expeditions?
It's very clear you do not understand the implications of Hamdi. Anyone who thinks that decision was a victory for civil liberties is fooling themselves.
The plurality upheld the government's contention that U.S. citizens could be detained by the government without charging them with a crime. That is a HUGE intrusion on civil liberties.
Here are the protections denied to Hamdi by the plurality decision:
1.) the right to be seized only upon probable cause.
2.) the Miranda protections against self-incrimination.
3.) The right to a preliminary hearing in which the gov't must show probable cause that the defendant committed a crime.
4.) the right to an indictment by grand jury.
5.) the right to not be detained without being convicted without a finding by the preponderance of evidence that he would not appear at trial or a finding by clear and convincing evidence that he represented a danger to the community.
6.) The right to a speedy jury trial requiring unanimous conviction by 12 jurors.
Only Scalia and Stevens said Hamdi was entitled to these rights - rights specifically guaranteed in the constitution or by statute. I raged about the plurality decision on the board here.
18 U.S.C. § 3142 precisely describes the requirements for detaining a U.S. citizen prior to a trial. The Hamdi decision authorizes detention based on the 9/11 resolution in a manner that directly violates 1342. Such detention is not mentioned in the resolution.
The parallel is absolutely clear. It doesn't mean the parallel will be dispositive. It does, however, provide a very strong argument.
As to how is it relevant? Because it supercedes a specific statute (several actually) and several constitutional provisions based on the 9/11 resolution and the President's inherent powers as commander in chief and to decide matters of foreign policy. Just because it didn't allow the government to go as far as it wanted to doesn't meant the decision doesn't provide a huge precedent for the administration.
Until you acknowledge that, your reading of the synopsis is not doing you any good.
I appreciate the explanation, and still, does it really do all of that? Hamdi was apprehended on a battlefield in another country (Afghanistan) in the midst of a war where he was fighting against his own country, the United States.
Those circumstances don't lend themselves to Grand Jurys and Miranda rights.
Posts: 337 | Registered: Nov 2005
| IP: Logged |
quote:Those circumstances don't lend themselves to Grand Jurys and Miranda rights.
Certainly they don't on the battlefield, and SCOTUS specifically limited its decisions to situations in which the exigency of battle no longer apply. Further, Hamdi was being held in Norfolk, Va. when SCOTUS heard his case.
The SCOTUS decision allows review on the question of whether Hamdi is an enemy combatant. In this review, it is acceptable to shift the presumption from one of innocence to one that the government's assertion of enemy comnbatant status is correct.The standard is "credible evidence," not reasonable doubt. If he is found to be an enemy combatant under this very weak form of due process, SCOTUS seems to have authorized indefinite detention of Hamdi with no finding of guilt beyond a reasonable doubt by a jury, after a hearing in which Hamdi did not have the presumption of innocence.
The government claimed it could hold Hamdi indefinitely based on its own determination that Hamdi was an enemy combatant.
SCOTUS ruled that the government could hold Hamdi indefinitely based on the determination of an independent tribunal (a court or a military tribunal) after a hearing in which most of the normal rules of due process are suspended.
Scalia and Stevens were of the opinion that the government has no authority to hold a U.S. citizen in a U.S. territory without bringing criminal charges.
So yes, it really does all that, and does so based on inherent executive power coupled with the authorization of the use of force in response to 9/11.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
He'd been sitting in a brig for something like two years off the coast of the US, plenty accessible for a grand jury to charge him. Also, you seem to completely misunderstand what dagonee said about miranda rights. Protection against self-incrimination is an extraordinarily important right. Dagonee is not referring to the need to have the miranda rights read to him or her -- a person possesses miranda rights whether or not they were read at time of arrest.
Also, it is not at all decided that Hamdi was apprehended on a battlefield fighting against the US. Don't be so willing to assume his guilt because it suits your line of argument.
Posts: 15770 | Registered: Dec 2001
| IP: Logged |
Printer-friendly view of this topic
![[Eek!]](eek.gif)
![[Angst]](graemlins/angst.gif)
OMG! I always have had a terrible time editing - what part(s) should I remove?
![[Big Grin]](biggrin.gif)
Hey, whatever you need in your post to make your point. ![[Hat]](graemlins/hat.gif)
![[Blushing]](graemlins/blushing.gif)
