Stay the Course

[justgoto.livejournal.com]

Court Affirms Wiretapping Without Warrants

WASHINGTON — In a rare public ruling, a secret federal appeals court has said telecommunications companies must cooperate with the government to intercept international phone calls and e-mail of American citizens suspected of being spies or terrorists.

Well who could have guessed?

Several legal experts cautioned that the ruling had limited application, since it dealt narrowly with the carrying out of a law that had been superseded by new legislation. But the ruling is still the first by an appeals court that says the Fourth Amendment’s requirement for warrants does not apply to the foreign collection of intelligence involving Americans. That finding could have broad implications for United States national security law.

The court ruled that eavesdropping on Americans believed to be agents of a foreign power “possesses characteristics that qualify it for such an exception.”

Bruce M. Selya, the chief judge of the review court, wrote in the opinion that “our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts.”

There's more!

The ruling is the latest legal chapter in a dispute dating back to the aftermath of the Sept. 11 attacks, when Mr. Bush secretly ordered the National Security Agency to eavesdrop on the international communications of American citizens without the approval of Congress or the courts. After the agency’s program was publicly disclosed in December 2005, critics said it violated a 1978 law. The White House initially opposed any new legislation to regulate surveillance, arguing that it would be an infringement of the president’s powers.

Just in time for Obama to use these constitutionally granted powers! Will wonders ever cease?

I "wonder" why President Bush has, "lowest approval rating since Nixon" and why there are twice as many hits for that phrase than "fisa national security".

Comments

[inibo.livejournal.com]

Regardless of what a court may say, the 4th amendment has not been repealed. Wiretaps with out a warrant are still illegal.

Illegal... I do not think it means what you think it means

[gillen.livejournal.com]

One may interpret the 4th Amendment in a number of ways favourable to wiretapping, either that wiretaps and other forms of non-invasive and/or non-material electronic surveillance do not constitute "searches and seizures" or that they do not have a direct effect upon the security of individuals in their "persons, houses, papers, and effects", or that the Amendment specifically does not cover such practices as may be conducted without a warrant. Far from disregarding the opinion of the court, the law requires the opinion of the court to establish one interpretation as the correct or governing one to the exclusion of all others. Since often multiple mutually-incompatible interpretations exist which are nonetheless compatible with the original document, it means that establishing the intent of the Constitution, and therefore the law, is the province of (TADA!) the courts.

Re: Illegal... I do not think it means what you think it means

[inibo.livejournal.com]

The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed ... An unconstitutional law is void. - American Jurisprudence 2nd Edition, Volume 16, Section 178

And I might add that FISA specifically prohibited wiretaps without a warrant at the time they occurred and

TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1809

§ 1809. Criminal sanctions

(a) Prohibited activities
   A person is guilty of an offense if he intentionally—
   (1) engages in electronic surveillance under color of law except as
       authorized  by statute; or
   (2) discloses or uses information obtained under color of law by 
       electronic surveillance, knowing or having reason to know that 
       the information was obtained through electronic surveillance not
       authorized by statute.

Anyone who authorized it or participated in it committed a criminal offense.

Re: Illegal... I do not think it means what you think it means

[gillen.livejournal.com]

And if FISA itself is the "unconstitutional statute"? What then?

Declaring any law void ab initio based on something as subjective as its "unconstitutionality" may be an awfully attractive position. It's clean. It's convenient - at least for those deciding that "constitutionality". But it's a castle based on a very weak foundation, and a tremor of doubt can bring it down.

Re: Illegal... I do not think it means what you think it means

[inibo.livejournal.com]

And if FISA itself is the "unconstitutional statute"? What then?

Very good question. One of the advantages of strict constructionism is the ability to actually look at the supreme law of the land and determine that yes or no that power was delegated to the federal government. If it was, peachy. If you don't like it follow the procedure for amendment. If not then apply the 10th Amendment and be done with it. Otherwise you are stuck with legal minutiae and scholastic hair splitting pin dancing arguments. Well, that and continual political warfare and a constant erosion of liberty.

Re: Illegal... I do not think it means what you think it means

[gillen.livejournal.com]

"One of the advantages of strict constructionism is the ability to actually look at the supreme law of the land and determine that yes or no that power was delegated to the federal government."


For "ability to" read "belief that one can". The spectre haunting the strict constructionist is that the document they give ultimate primacy has all the clarity of a funny pages horoscope. The Constitution is a better mirror than a window, reflecting the viewer rather than revealing the landscape beyond. It is a poor basis for any notion of unchanging law.

Re: Illegal... I do not think it means what you think it means

[inibo.livejournal.com]

Obviously we disagree.

Re: Illegal... I do not think it means what you think it means

[gillen.livejournal.com]

On that much, we agree.

Re: Illegal... I do not think it means what you think it means

[njyoder.livejournal.com]

If if it's a poor basis for unchanging law, why not just eliminate SCOTUS? Without any objectivity in interpretation of constitutionality, it becomes a pure vote, in which case we should just abide by whatever the legislature says.

the 4th amendment has not been repealed

[justgoto.livejournal.com]

Try reading it once, it might surprise you!

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html)

Notice that "against unreasonable searches and seizures" part? Eavesdropping on a suspected terrorist isn't "unreasonable".

Re: the 4th amendment has not been repealed

[underlankers.livejournal.com]

Define "suspected terrorist."

If any problems come with the definition....

The amount of potential abuses from this kind of shit are frightening. "Terrorist" could come to mean political opponent or it could come to mean someone someone in power has a grudge against....without an ironclad definition, this is a dangerous step in a liberal democracy, and one of the first steps to an American KGB or Department for the Promotion of Virtue and the Prevention of Vice.

[xforge.livejournal.com]

Hey, YOU'RE the ones who stood idly by or even cheered when Bush *took* all this power for himself. Did NONE of you stop and think "hey, y'know what, someday this office could be held by a Democrat?"

[inibo.livejournal.com]

Yep. We'll see how much the Republicans like an elected dictator now that he is not a Republican.

[ihatepeoplealot.livejournal.com]

three cheers to that

three cheers

[justgoto.livejournal.com]

http://community.livejournal.com/talk_politics/11923.html?thread=407955#t407955

Yep. We'll see

[justgoto.livejournal.com]

http://community.livejournal.com/talk_politics/11923.html?thread=407955#t407955

[hunterkirk.livejournal.com]

SO will Obama make them illegal now that he has them? I bet they will not.

[shadowyphantom.livejournal.com]

Shh ... he's watching ... and listening ...

[xforge.livejournal.com]

Dunno, my fucking crystal ball is broken. Get off it already!!

Hey, YOU'RE the ones who

[justgoto.livejournal.com]

I know this is hard for a ultra (http://community.livejournal.com/politicsforum/2017752.html?thread=73080280#t73080280)-partisan such as yourself, I expect and encourage President Obama (http://community.livejournal.com/ljdemocrats/2971265.html?thread=34675329#t34675329) to take full advantage of his constitutional duties and powers. Haven't you read any of what I have presented?

[kinvore.livejournal.com]

It's a conspiracy you tells ya.

It's a conspiracy you tells ya.

[justgoto.livejournal.com]

Is it your intention to have people think you as a fool?

^--- I'm with stupid

[kinvore.livejournal.com]

Nah, just giving you a hard time. If I didn't you'd think there was a glitch in the matrix or something.

[hunterkirk.livejournal.com]

As I understand Democrats and the Media are saying that Obama will need these wire traps to provide "flexability". I guess it is ok when the Democrats do it. Also did you know that the Democrat congress has consitently had a 10 point lower approval rating then Bush?

But aside of the double standards in play, Yes Bush was right in this issue as he was in many others. In time non-bias thinkers will come to recognize this, but for now the bias left has the media and the resources to ensure that most their views get known.

[inibo.livejournal.com]

BTW, insofar as left/right mean anything, I'm on the biased right.

Awwwwwwh!

[justgoto.livejournal.com]

Isn't that cute! I'll put it on the refrigerator!

*pats head*

[underlankers.livejournal.com]

The next time I hear that Bush's security expansion of power was worse than the average, I'm going to hammer the Wilson point stronger. When Woodrow Wilson entered WWI, he passed the Sedition Act. Thousands of people were jailed for speaking out against the Great War. Bush's actions are just part of an overall cycle of US history, and as the crisis passes...so will the civil liberties abuses. This cycle dates all the way back to the Founders and John Adam's Alien and Sedition Acts. Bush was not an innovation except in the tools he used to trod over the Constitution.

[inibo.livejournal.com]

as the crisis passes...so will the civil liberties abuses.

No they don't, that's the problem.

Maybe in the most egregious cases, but it's two steps forward one step back and the precedent is set for next time.

Also, the "crisis" this time is terrorism. Since terrorism will never be eliminated when will the crisis end?

that's the problem.

[justgoto.livejournal.com]

You have to reply to them (http://community.livejournal.com/talk_politics/11923.html?replyto=392083), otherwise you're just talking to thin air.

[underlankers.livejournal.com]

When the next, flashier enemy comes along, that's when. Western civilization always needs an Other. First it was the Persian monotheists, then the non-Greek barbarians, then the Germans, then Islam, then either democracy, communism, or both communism and fascism, or fascism, depending on which West you subscribed to, to today.

There will always be an outsider to the West.