Warrantless Surveillance To Continue For Now 402
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."
This is good. (Score:5, 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.
Re:hmm... (Score:5, Informative)
The point is that the District Court realized that it didn't have the final say in the matter so they wouldn't unilaterally block its use since the Executive Branch has stated that it was of interest in national security. In the court's opinion, the wiretapping is unconstitutional. But there are hundreds (or thousands) of federal judges in the United States who often make contradictory rulings that need to be reconciled at the Appeals or Supreme Court level. Since there is no question that this case will go to the Supreme Court at some point, the District Court did the wise thing, realizing it wasn't the final say and delaying the order of its ruling until the case reaches higher levels.
Obviously this isn't popular with many people on Slashdot, but it is how the courts need to work. In the reverse, a court could, for example, declare that abortion was unconstitutional. If it didn't delay its ruling until higher courts analyzed it, it would affect hundreds of thousands to millions of women.
Re:freedom ringer (Score:2, Informative)
Note: I substituted 'f' for unicode #383 because it won't render on Slashdot.
I support the correct form of the statement, but I believe it is a little disingenuous to quote the misattributed version because it has a slightly different meaning.
All hail the Emperor (Score:3, Informative)
http://www.informationliberation.com/index.php?id
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?
Re:Specific law covers this case (Score:3, Informative)
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.
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.
Um... that quote was in reference to the Patriot Act.
Re:Don't leave things out (Score:5, Informative)
Kinda biased post (Score:3, Informative)
I believe the argument here is that cangress cannot make a law that limits constitutional authority granted to the executive branch, this would require amending the constitution. As I put it, they make a much better argument than I. However, I was just hopeing to put this in perspective
Re:Arguments for this are getting^Wstale. (Score:3, Informative)
Oh yeah? I read it was 99.99% in another post. Now I'm all confused.
It does nothing of the sort. It protects the security of people in the persons, their houses, their papers, and their effects against unreasonable searches and seizures, and it requires probable cause for a judge to issue a warrant. I don't think it has ever been interpreted by any court in the history of the U.S. to require the affirmation of a judge for any search.
If a person feels that their possessions have been searched or seized unreasonably, then they have recourse to the courts to bring suit against the Administration for their damages. At that point it becomes incumbent upon the Administration to provide evidence of the reasonability of the searches. It's an absurdity to suggest that they need to broadcast that evidence for every search they conduct, and I can't imagine why anyone would even suggest it, unless they were intentionally hoping to undermine the ability of the country to protect itself.
If the 4th amendment said what you thought it said, you'd have a point. Sort of.
So we agree. The FISA law is illegal and void insofar as it appropriates to the courts powers given in the Constitution to the President.
Well, I hope it will be a nation of law again one day. It hasn't been that for a very long time. The justices this president has appointed are the best shot at moving back in that direction. But the point about terrorists vs. criminals needs more careful scrutiny. We have never applied the 4th amendment in the same way to battlefield searches and seizures, or to spying on our enemies. I'm sure that they thought of that when writing it, which is a big part of why it is stated so vaguely... the test is simply if the search or seizure is "reasonable". Warrants have always been about criminal prosecutions, and they kept that part separate. So the question is, is it reasonable to listen to Osama's phone call to his grandma in Florida. Well, of course it's bloody reasonable.
Re:Specific law covers this case (Score:3, Informative)
It says the president is in charge of national defense
Where does it say that? Article II Section 2: "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States".
I think there's a pretty wide divide between being put in charge of the military, and being unilaterally in charge of national defense, but I guess I can follow that reasoning. Even if it's self-serving.
and the Congress has no right to usurp that power
Oh, I see. Baloney. If that was actually true, military actions wouldn't be constrained to budgetary limitations imposed by Congress. Nor would the War Powers Act of 1973 have passed constitutional muster.
Re:Specific law covers this case (Score:2, Informative)
However, we both agree that all acts of Congress are not constitutional. President Carter's AG claimed FISA violated the Constitution. Clinton's Administration submitted to FISA while simultaneously stating that the President had inherent authority to monitor.
Additionally, "section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance 'without a court order.'" The Authorization of Use of Military Force is an authorization of war. Therefore, we are at war and the President has full use of his war powers under the Constitution.
But, don't take my word for it, here's the word of an expert on the subject: http://www.opinionjournal.com/editorial/feature.h
I'm sure I'll be modded down for supporting the President's legitimate use of his authority by the guy who can't come up with a reasoned response.
Re:U.S. citizen foreign national (Score:2, Informative)
2a. "however, the Constitution requires the president to take an oath of loyalty to what the Constitution actually says" The Constitution says nothing about a "unitary executive", despite the fact that Bush mentions it in one of his signing statements. [wikipedia.org]
2b. Basing your argument on "what the Constitution actually says" suggests that for every failure of imagination that the founding fathers had, the President gets to make up his own mind.
3. You forgot to mention the part about how the President "shall take care that the laws [passed by the Congress and the Senate] be faithfully executed"
Are you claiming that his oath is to the Constitution means he gets to disregard the Laws of the country & the Supreme Court's interpretation of those laws... cause, in other situations they call that a Dictatorship.
Or is this one of those "It's not Fascism when we do it" kind of things?
This isn't flamebait or a troll, I think I bring up serious, if rather pointed issues.
Re:Political Garbage (Score:3, Informative)
It's not a "lefty" post - I'm probably closer to a libertarian than anything else, and when it comes to my views on stuff like gun control I imagine that I'd make most right-wingers look like card-carrying members of the Brady bunch.
I just don't have the unconditional (and provably unwarranted) faith in government, be it either Democrat or GOP, that a lot of aforementioned right-wingers do, and I also look at the number of people that died in the 9/11 attacks, then compare that to those things that we continue to tolerate that kill a lot more people, like drunk driving.
illegal imigrants paying taxes (Score:3, Informative)
True, they aren't for everyone. They're for the people willing to pay the price of liberty and freedom, and those willing to take the responsibilities (like, say, taxes) that are part of that framework. For example, people who break the law, rather than taking their turn to immigrate, aren't exactly committing themselves to the responsibility side of the equation.
You've heard of those 12 million illegal immigrants I bet but I also bet you haven't heard that 8 million of them also pay income and social security taxes. Fact is is that those illegal immigrants help prop up social security because they pay into SS but they won't receive any SS when they "retire" if they do in the US. And yes illegal imigrants pay income tax, in 1996 I believe the IRS specifially setup SSNs illegal immigrants can get so they can get a real job and not just work under the table.
FalconRe:hmm... (Score:2, Informative)
No, there was an approval for military action. Against Afghanistan and against Iraq based on proven lies.
There was no declaration of war and this ain't a war. It's not even possible to make it a war.
Therefore, the war powers act doesn't apply, hence it is unconstitutional.
Look at the facts, don't just parrot idiotic lies. You might not give a flying fuck about your liberty, but you are selling mine out with yours and the second amendment should be your biggest worry and that of the shitbags you defend in their assaults on all of the rest of us.
Re:hmm... (Score:5, Informative)
So it is a fact they issued ruling, but that ruling has been suspended and is on appeal.
Many more opinions have been given that contradict this one, i.e. case law is AGAINST this ruling.
Pendantic reciting of case law follows:
In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the defendant was convicted of espionage. The court wrote:
In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were "conducted and maintained solely for the purpose of gathering foreign intelligence information."
Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977), a firearms prosecution. The court said:
Foreign security wiretaps are a recognized exception to the general warrant requirement....
In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant's spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch's inherent power to conduct warrantless surveillance for national security purposes:
The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment. Instead, it relied upon a "foreign intelligence" exception to the Fourth Amendment's warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court agreed with the government's position:
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], "unduly frustrate" the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.
The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the "object of the search or the surveillance is a foreign power, its agent or collaborators," and the search is conducted "primarily" for foreign intelligence reasons.
The state of the law was summed up by the Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:
Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.
Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break do
Re:Don't leave things out (Score:3, Informative)
Intelligence agencies SHOULD have a lot of leeway when investigating something legitimate. If that leeway is allowed to extend to activities intended to benefit the party in power or the people at the top, though, we're in banana boat dictator territory (or Hoover's FBI territory if you prefer).
The administration hasn't proposed an alternative check on wiretapping, they want to do away with oversight entirely. Insisting on freedom from any and all oversight doesn't pass the sniff test.
As for allegations of spying for profit being ridiculous, the EU has already accused [bbc.co.uk] the CIA of providing intercepts to Boeing that helped them beat out Airbus for contracts. Now we get to do it at home, too.
Re:hmm... (Score:5, Informative)
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
You've all missed the point (Score:2, Informative)
There are far many more issues open thhan were addressed int he case - and they are being argued all over the place here, while you completely miss the point.
All of you on both sides seem to have missed the court's decision itself was flawed and poorly reasoned (read the lawblogs commentaries form whenit was first released - it was panned, left and right). The original judgement was not properly based in the law at all. BOTH sides commented on this when the decision was handed down. the only people taking it at face value were the Bash Bush At Any Cost crowd. Those who actually practice law were cringing at the poor quality of the judgement and expecting this very action by the appeals court - an action that will tie down any and all further attempts to limit the warrantless intercepts until this case is resolved.
It will be eventually overturned - and THAT is why the appeals court has stayed that decision pending the appeals process. Not becasue the program in question was right or wrong, but that the decision by the judge was horrendously poor.
There are plenty of good legal arguments to curtail the warrantless intercepts. And they will eventually make it to court and have a fair hearing. Its a shame this crappy original decision is going to dealy so many of them as it is demolished and overturned in the appeals system.
Again, there are many good arguments and legal reasons that favor curtailment of the warrantless intercept program.
Unfortunately, the original decision was bereft of *all* of those good reasons, and it deserves to be tossed out as a matter of correcting bad jurisprudence.
Re:hmm... (Score:3, Informative)
First, the ruling hasn't been suspended. The execution of the ruling has been suspended. The ruling itself stands until such a time as another court overturns it, which hasn't happened yet.
Second, while you certainly seem convinced that "case law is AGAINST this ruling," a lot of people who know an awful lot about the law disagree with you. In fact, a judge wrote a very clear ruling about why this NSA program IS unconstitutional.
Frankly, most of the citations you give are simply irrelevant. Pretty much everything you cite comes from before FISA, and FISA was in fact put in place precisely to counter those kinds of things. The one thing you have in there that is recent and might apply is the 2002 decision, from a sealed case, which does not necessarily speak to all of this specific program. For example, was this pure foreign surveillance (which the President most certainly has the authority to do), or is it domestic intelligence (where one endpoint of the conversation is in the U.S.), which is what the NSA program is doing (and which I'd argue is in a very straightforward way against FISA) - I think the only way you could possibly rule that this program is consitutional would be to rule that FISA itself is UNconstitutional. I think it's a serious stretch to say that will happen.
So we'll see how this goes - you seem quite convinced that the program is constitutional, and there are people who agree with you (primarily within the Bush Administration, but there are a few independent people who agree). I am quite convinced that the program is UNconstitutional, and there are probably significantly more people who would agree with that (and is what the most recent standing court decision says as well). Eventually this will make it's way to the Supreme Court, and the only opinion that will really matter in the end is what they say.
Re:U.S. citizen foreign national (Score:3, Informative)
Except, that's not true. The Bill of Rights DOES only apply to the people of the United States. (Note, I am not saying "citizens" of the United States.) This is absolutely clear, and true. The DoI is not law. It's a statement of principles. And it says that BECAUSE of the principle that all men are created equal and have rights, THEREFORE they should select their own government, and the Constitution defines part of that government. But if you are not a part of that (again, not necessarily a citizen, but in the United States), then none of the Constitution applies to you, unless it explicitly says so.
Re:U.S. citizen foreign national (Score:3, Informative)