Hello, 1984?
December 21, 2005 1:25 PM Subscribe

Our Domestic Intelligence Crisis Federal Appeals Court Judge Richard Posner imagines a world in which US citizens are constantly under electronic surveillance.... and is totally okay with it. Once you accept Posner's premise that "machine collection and processing of data cannot, as such, invade privacy," how far are we from cameras and microphones in private homes. After all, there is no privacy invasion so long as it is only a computer flagging "suspicious" activity, right?
posted by GregW (164 comments total)

Given the Duke Cunningham, Bob Ney, and the Abramoff scandal, I suggest we ask the 5335 members of Congress if they'd object to participating in a trial run of Posner's off-so-safe world.
posted by orthogonality at 1:28 PM on December 21, 2005

Crap, I need a new keyboard.
posted by orthogonality at 1:29 PM on December 21, 2005

Federal Appeals Court Judge Richard Posner is a yellow-bellied, lily-livered coward. I'm amazed he has the courage to get out of bed in the morning, he's so shit-scared of terrorists.
posted by Faint of Butt at 1:36 PM on December 21, 2005

You know, I've been appalled at how readily Americans have seemed to hand over their civil liberties at the slightest request from the government. But I wonder how much of that can be attributed to our reduced sensitivity about privacy -- a reduction that comes directly from changes in communications technology.

I can remember when my parents kept an unlisted number and didn't like to give out our address, except to people we knew. Now, we've come to accept a world in which someone can view a satellite image of your house online, we customarily offer personal data in order to get access to content on websites, we know that our cell-phone conversations could be overheard on our neighbor's radio, and we are (sometimes) willing to give our zip codes or phone numbers when making purchases in some stores.

no longer regard our personal information as private. So when the government asks to read our mail and listen to our phone conversations, it doesn't feel as weird as it should.
posted by Miko at 1:39 PM on December 21, 2005 [1 favorite]

"The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities."

What an alarming sentence to come from the pen of a federal judge.
posted by justkevin at 1:41 PM on December 21, 2005

I forgot, here is a link to the live Q&A with Posner on washingtonpost.com today.
posted by GregW at 1:43 PM on December 21, 2005

Or more accurately, the next sentence is the alarming one: "That is too restrictive."
posted by justkevin at 1:43 PM on December 21, 2005

I love the anti-right to privacy argument that you shouldn't mind if the government watches you if you've got nothing to hide. Especially since many of the politicians pushing that concept are buggering their boyfriends behind closed doors.

How about we put their lives on display 24/7 and see just how much they enjoy it?
posted by fenriq at 1:43 PM on December 21, 2005

I think it's not a coincidence that google's stock share is at all-time high :) "Machine collection and processing of data cannot, as such, invade privacy" - that's basically their argument as to why automatically showing relevant ads in gmail is not a bad thing.

For the record, I don't think google doing this is all that evil (just a little evil). I do think that US government doing same is evil, and far more prone to abuse than google. You know things are bad when a for-profit company has more public trust (in my eye) than the elected body for the people, by the people...
posted by blindcarboncopy at 1:44 PM on December 21, 2005

Read a chat with Posner here (from earlier today).

Or, I can sum it up for you. If you're not a criminal, you have nothing to fear. The government will not abuse its power. We need to give up our privacy for the sake of safety -- the terrorists are COMING, duh!
posted by trey at 1:46 PM on December 21, 2005

Here's the key line hidden in the Posner piece: "The government is entitled to those data, but just for the limited purpose of protecting national security." But Posner fails to show how we're going to put limits on the dissemination of that data. We already know that other legal tools of the War on Terror have been used for purposes other than national security -- why should we think surveillance will be any different?
posted by footnote at 1:46 PM on December 21, 2005

Isn't that similar to the argument that makes regarding books and gmail? If it is a machine reading it and flagging it (or sorting it) it isn't really being read, is it?

Still, it's some crazy shit.
posted by jmgorman at 1:48 PM on December 21, 2005

I do think that US government doing same is evil, and far more prone to abuse than google

We need to take more care of our terms. Google Inc isn't structured to prevent the next 9/11, should it be on tap in our future.

The USG using mass collection of communications to identify and penetrate the next cell of 16 assholes before they blow shit up somewhere is a GOOD, not EVIL.

The EVIL part comes when one fears that this power will be abused, as Hoover abused it during his lifetime reign at the FBI.

(Hoover's systematic abuse is probably the mainspring of the FISA, not Nixon, AFAICT).

But this is a potential evil, not a present one.
posted by Heywood Mogroot at 1:52 PM on December 21, 2005

Maybe we should just say the hell with privacy, and publicly broadcast every detail of everyone's life 24 hours a day. The only drawbacks to this plan that don't also come from Posner's are that reality television would no longer be a lucrative genre, and national productivity would plummet because everyone would sit around all day watching other people showering and having sex.
posted by Faint of Butt at 1:52 PM on December 21, 2005

SEPTEMBER ELEVENTH, people.

TERROR

OSAMA BIN LADEN^*!

*Note: Caring about the whereabouts of OBL not included
posted by mr_crash_davis at 1:55 PM on December 21, 2005

OSAMA BIN LADEN*!

You misspelled Saddam Hussein. Don't be embarassed, it's a common mistake.
posted by I Love Tacos at 2:02 PM on December 21, 2005

Faint of But: heh, you have a point. What's with this asymmetrical shit? You want to spy on us, fine, but we get to spy on you.

A real "West Wing" would have hella ratings, wouldn't it?

Thing is, government has a rightful mandate of preserving public safety. Is warrantless collection of communications "necessary & proper" and are civil liberties being wrongfully lessened a la the "undue burden" test, given the present threat?

I remain on the fence. While I am fearful of abuses of collection down the road, I am also fearful of getting blowed up by terrorists next month.
posted by Heywood Mogroot at 2:05 PM on December 21, 2005

The answer to Posner is really very simple. If FISA is and NSA no threat, why did FISA get made into law in the first place? Because Nixon and gang were using intel to spy upon people he thought not loyal to him and his crowd. It had nothing to do with terrorism, since at that time there were no terror threats.
posted by Postroad at 2:06 PM on December 21, 2005

Every time I hear such simplistic paranoia from educated and enlightened adults in America (the man is a judge, damnit), my mind boggles a bit more.

I mean I can understand why a politician would want to go the populist route and paint terrah as if it worked in a James Bond movie.

I can also imagine ignorant people buying it.

But guys like him... *shudders*
posted by uncle harold at 2:07 PM on December 21, 2005

Bah. Outrage fatigue.
posted by StarForce5 at 2:12 PM on December 21, 2005

While I am fearful of abuses of collection down the road, I am also fearful of getting blowed up by terrorists next month.

Well, that's just a difference of opinion, I suppose. As for me, I perceive Dick Cheney, Karl Rove and the rest of the PNAC crowd as far more of a clear and present danger to my lifestyle, liberty and happiness than Osama Bin Laden could ever be. Sure, OBL could blow me up, and that would be the end of that, but he'd never have the power to make the next fifty or sixty years an oppressive, fascist living hell, unless the US government helped him.
posted by Faint of Butt at 2:13 PM on December 21, 2005

There is absolutely no guarantee that trading in our civil liberties will actually reduce the threat of terrorism. It's a real leap of faith that's being asked for here.

In fact, an effective anti-anti-terrorism strategy would be to flood monitored channels with false information, draining government's response ability by throwing red herrings left and right while continuing to quietly plan any attacks in private cell meetings.

So it's a strategy that may not increase (or even decrease) our security, while at the same time violating 4th amendment rights.
posted by Miko at 2:13 PM on December 21, 2005

But this is a potential evil, not a present one.

But preventing the next group of 16 nutbars is also only a potential good, and one that is much less likely than the potential bad you have brought up.
posted by solid-one-love at 2:15 PM on December 21, 2005

"They who would give up an essential liberty for temporary security, deserve neither liberty or security" -- Benjamin Franklin
posted by ericb at 2:20 PM on December 21, 2005

Talk about a slippery slope, I fear the good judge doesn't fully understand the technology he speaks of. Taxonomies and ontologies are used to sift through massive amounts of data and there's absolutely no reason, that I can see, that such taxonomies wouldn't in order "to protect the people of the united states" be tweaked for political gain and abuse of power. There's always going to be intelligence organizations that answer to only very specific people in power (i.e., the President). If such a system had been in place and the New York Times or Washington Post for example had a crucial story that threatened Bush or put him in a criminal light, do you think for a minute that the system outlined by Posner wouldn't be brought down on the heads of the editorial boards of those newspapers to blackmail and shut them up? Does anyone for a second think that if the Nixon White House had had access to such a system they wouldn't have brought it down to bear on the Washington Post. I don't. Not even for a second. Anything less is severely naive or simply stupid. The case in point here is the Bush administrations defense of it's internal spying on very broad and vague "constitutional powers" granted to the executive branch. What makes me incredibly nervous is the following:
1. The obvious focus of the administration on increasing the powers of the executive branch in disregard of the judicial and legislative branches.
2. That the judicial branch is quickly being stacked with judges that are sympathetic to the GOP and this president in particular. If the Supreme court needs to rule on the latest abuse of executive power and Alito is on the bench I fear they will give broad and sweeping powers to those who have proven themselves repeatedly to be unworthy of it.

I guess what this comes down to is the old threat "if you've done nothing wrong, there's nothing to worry about" or if you've done nothing wrong, you've got nothing to worry about as long as you don't question our authority". and that's simply not good enough. Our constitution makes that exceedingly clear in the Bill of Rights and the 4th amendment.
posted by Skygazer at 2:22 PM on December 21, 2005

Heywood, have you ever considered the practical effectiveness of such a program in reducing terorrist activity? Before you retreat into wild speculation about terrorist cells waiting to blow you up, let's do an examination of how the government has used greater intelligence gathering and search powers in the past and figure out a cost/benefits analysis. A good place to start would be the PATRIOT act. If you do this analysis, you'll find these powers are very rarely used in actual terrorist investigations. Instead they're turned loose upon common criminals and, inevitably, innocent people. The whole 'potential evil' line is rhetoric. It's not a question of if the government will abuse such powers, it's a question of when.

Your argument boils down to the 'save Manhattan' argument that's often used to justify torture. But the whole idea that the government HAS to do something in order to prevent a terrorist attack is just an argument from extremes that has no place in the day-to-day practical political setting.
posted by nixerman at 2:23 PM on December 21, 2005

Anyone seen Brazil?
posted by Shanachie at 2:26 PM on December 21, 2005

There is absolutely no guarantee that trading in our civil liberties

what civil liberties? Let's say part of "echelon" or whatever is cataloging ALL calls that go overseas, forever. No skin off my nose. The trading of civil liberties comes when this information is abused, not collected or analyzed pursuant to the USG's constitutional mandate to provide for the common defense.

violating 4th amendment rights.

I know I'm being wacky here, but I read the 4th amendment:

to mean what it says, no less and no more. Justice Black's lone dissent:

The first clause protects "persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers' purpose to limit its protection to tangible things by providing that no warrants shall issue but those "particularly describing the place to be searched, and the persons or things to be seized." A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. In addition the language of the second clause indicates that the Amendment refers not only to something tangible so it can be seized but to something already in existence so it can be described. Yet the Court's interpretation would have the Amendment apply to overhearing future conversations which by their very nature are nonexistent until they take place. How can one "describe" a future conversation, and, if one cannot, how can a magistrate issue a warrant to eavesdrop one in the future? It is argued that information showing what [389 U.S. 347, 366] is expected to be said is sufficient to limit the boundaries of what later can be admitted into evidence; but does such general information really meet the specific language of the Amendment which says "particularly describing"? Rather than using language in a completely artificial way, I must conclude that the Fourth Amendment simply does not apply to eavesdropping.

in Katz makes perfect sense to me.

and one that is much less likely than the potential bad you have brought up.

debatable. I think this admin lied their asses off getting us into war, and should be impeached for that (impeached in the sense of put on trial in the Senate) but I'll note that they didn't try / haven't tried to plant false WMD evidence.

Like Posner says, some conspiracies are just too hard to pull off.
posted by Heywood Mogroot at 2:27 PM on December 21, 2005

From something I wrote a while back:

the Internet is as much about tracking as it is transmission, and the whole Web 2.0 meme reveals, plainly I think, that current and future technological advances and killer apps will come about through collective interactions that dispense with privacy as a prerequisite, either because the application depends upon coalescing and managing the data streams that mark the moment of interaction, and because more and more normatively, people seem content to divulge private information for the sake of private and public gain. Besides, most of the data that is being used to assess our lifestyle and consumption habits, our hobbies and our family life, our educational and laboring successes and failures, is data that we ourselves provided. This wasn't our fault necessarily; the discussions of what was being lost in the wake of this collective archivization of personal data came late to the table, and to be honest, rarely ever got plated along with our happy consumer meals. And while I find myself saddened at the subsequent dissolution of basic, private information and the rise of the so-called datasphere, I also know that the data genie is already out of the bottle, so to speak, and I'm not sure there's a way to conveniently shuttle him back inside, at least not without juridical methods that I find objectionable.

For now at least, I want to put any discussion of policy implications into abeyance, and instead think a bit about privacy and media. As a blogger watching the whole tired Ivan Tribble affair, as someone who routinely publishes online by signing his own name rather than a pseudonym, I am acutely aware of the dangers that exist in publishing online. I have provided information to credit companies, have listed books I own and music I like, have disclosed personal information, (for example: my forthcoming daughter), and so on and so fourth, ad absurdum, all online. But whatever the novelty of the Internet, whatever the uniqueness of blogging, this ability to self-confess has been around a very, very long time. The ability to self-confess in a way that moves beyond the transitory, ephemeral conversation-and-memory combo has been around since the acculturation to literacy. Even blogging, for all its celebrated newness, can be understood as the completion and perfection of the typewriter, the first technology to fuse the act of composition with the act of publishing for an audience.

Blogging is at this point a somewhat battered and banal example of what many see as a more pernicious confession and collection of information that removes from the individual the power to resist authoritarian impulses (be they governmental or corporate), which at least theoretically rely upon information control and knowledge over and interpellation of their targetted subjects. And the many who see this aren't wrong, necessarily. But it occurs to me that the concern might well be alleviated if we followed Lanier's suggestion or parallel loss: that nullifying some of the force of any "right to privacy" means also nullifying that force for all sorts of actors that claim a privilege via it, from the individual citizen to the corporation to the government. If we had as much information and (and this is a hugely crucial component) information-processing as did these larger and more complex organizations, it may be that privacy would turn out to no longer be a necessary check on the authoritarian principle.

Short version: Hey Big Brother, I'll show you mine if you show me yours.
posted by hank_14 at 2:27 PM on December 21, 2005

Ah oh..heh...cool to see others wrote "If you haven't done something wrong etc etc...".

Posner strikes me as an interesting fellow, maybe working for a Supreme Court nomination. But one thing is for sure, as I state above, he doesn't seem to understand that although computers can't read data or make judgements, they still need to be programmed by people who delineate data fields, Taxonomies etc...

This from Wikipedia It seems he's always had a "free market" / Neocon-esque approach to privacy:

He famously opposed the right of privacy in 1981 by arguing that the kinds of interests protected under privacy are not distinctive. He contended that privacy is protected in ways that are economically inefficient.
posted by Skygazer at 2:30 PM on December 21, 2005

Justice Black's lone dissent:

it's not hard to see why he was lone. He's not talking any sense there.
posted by Miko at 2:32 PM on December 21, 2005

You know and the great gods of hypercapitalism forbid anything be "economically inefficient". That would be blasphemous and punishable by death or at least detention at Gitmo.
posted by Skygazer at 2:34 PM on December 21, 2005

Well, I can't think of any difference between "bulk" analysis of internet traffic and "bulk" analysis of information gathered in people's homes.

The ironic thing: right now my boss is sending me made up credit card numbers in order to test one of our bulk internet traffic analyzer (we sell them to companies who want to enforce HIPPA, SOX, financial data, etc in their networks)
posted by delmoi at 2:36 PM on December 21, 2005

Is this guy angling for a Scotus apointment? If I were in congress I would motion to impeach this judge today.
posted by delmoi at 2:38 PM on December 21, 2005

Your argument boils down to the 'save Manhattan' argument that's often used to justify torture.

The difference is here, no harm no foul. Arguendo, nobody's having actual bad things happen to them right now.

But the whole idea that the government HAS to do something in order to prevent a terrorist attack is just an argument from extremes that has no place in the day-to-day practical political setting.

eh?

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity"

If I thought echelon could help the FBI prevent another 9/11 I'd be down with getting it running, with sufficient judicial and congressional oversights.

"necessary and proper" exercise of power vs. "due process" application of power vs. "undue burden" imposed on the People or persons.

I admit the sticky question is how to guarantee these police powers won't be abused. As has been stated, we are a nation of laws, not men (cf Fitzgerald, Delay and Abramoff).

I would hope legislation would be sufficient.
posted by Heywood Mogroot at 2:40 PM on December 21, 2005

Also, computers can make judgments. They might not get emotional about it, but they can certainly say something like "this dude is in the top 12% of anti-establishmentarianism" or "this guy is in the top 8% of making pot smoking jokes" and then correlate those numbers to behavior.

And really, you could program them to look for whatever you wanted, like to eek out communists or liberals or whatever's against the patriotic ideology de jure.
posted by delmoi at 2:41 PM on December 21, 2005

The Loyal Citizen's Contract With the American Government

"I (the undersigned) believe President George W. Bush when he says that the United States of America is fighting a 'new kind of enemy' that requires 'new thinking' about how to wage war. Therefore, as a loyal citizen of President Bush’s United States, my signature below indicates my agreement to the following:

"1. I believe wholeheartedly in the Patriot Act as initially passed by Congress in 2001, as well as the provisions of the Domestic Security Enhancement Act. Therefore, I grant the FBI access to:

"a. my library records, so it may determine if I am reading material that might designate me an enemy of the nation;

"b. my financial records, including credit reports, so it may determine if I am contributing monetarily to any governmentally proscribed activities or organizations;

"c. my medical records, so it may determine if my prescriptions, injuries, or other conditions are indicative of terrorist activity on my part;

"d. any and all other personal records including, but not limited to, my store purchases, my school records, my web browsing history, and anything else determined as a 'tangible thing' necessary to engage in a secret investigation of me.

"I agree that I do not need to be notified if my records have come under scrutiny by the FBI, and, furthermore, I agree that no warrant is needed for the FBI to engage in this examination of my personal records. Additionally, I agree that the FBI should be allowed to monitor any groups it believes may be linked to what it determines to be terrorist activity...

"My consent freely given,
"(Your signature)"
posted by fungible at 2:42 PM on December 21, 2005

Hank_14: If we had as much information and (and this is a hugely crucial component) information-processing as did these larger and more complex organizations, it may be that privacy would turn out to no longer be a necessary check on the authoritarian principle.

Hmm, that's intriguing stuff, but would it also come with a mechanism that allowed an individual the ability to persecute, arrest and possibly jail aforementioned "larger and complex organizations"?
posted by Skygazer at 2:45 PM on December 21, 2005

it's not hard to see why he was lone. He's not talking any sense there.

bullshit. His was the accepted reading of the 4th Amendment until 1967.

Well, I can't think of any difference between "bulk" analysis of internet traffic and "bulk" analysis of information gathered in people's homes.

The difference is one of disturbance of one's physical stuff.

hmm, that IS a good point though. There is a contradiction here since SCOTUS held unanimously that the police did not have the power to collect infrared intelligence from one's home.

I need to review the Kyllo case. Be back in a jiffy...
posted by Heywood Mogroot at 2:49 PM on December 21, 2005

Delmoi, pay attention. ;-)
posted by Skygazer at 2:52 PM on December 21, 2005

Heywood,

The difference is here, no harm no foul.

This statement is false. In order for the data to be useful in any meaningful way it will have to be analyzed by human beings. As soon as humans are introduced into the equation then the system will be abused. Historically this has always been true and it continues to be true today--again, consider the recent abuse of the PATRIOT act. This is quite clearly why the authors of the Constitution chose not to give the government the benefit of the doubt.

Your "just gathering the data is ok" position is disingenious. You cannot implement political policy and ignore the consequences or simply hope the worst doesn't happen. All too often the worst is exactly what happens. Further, it does harm everybody and everything. Again, let's take a look at history. When everybody in society is under continual monitoring it has a decisive effect on people's day-to-day lives and their willingness to speak up against the government.

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity"

This is the 'save Manhattan' argument again. Please. Look, you can justify most anything by putting the words 'common defense' in bold. Many totalitarian governments in the past have done basically that. This is not a practical political argument. There is very little practical reason to believe that this sort of overly extensive, warrantless monitoring will truly reduce or thwart terrorist efforts. Yes, there is the theoretical possibility that terrorists masterminds are this very minute planning the next 9/11 and they also just happen to be taking advantage of Verizon's Friends&Family local plan... but it's not in any way likely. Making policy decisions off such silly speculations is stupid.

I would hope legislation would be sufficient.

Heh. Yeah, you "hope" the government will do the right thing. That really sounds like a good plan for a free society.
posted by nixerman at 2:57 PM on December 21, 2005

I remain on the fence. While I am fearful of abuses of collection down the road, I am also fearful of getting blowed up by terrorists next month.
posted by Heywood Mogroot at 2:05 PM PST on December 21

I hope you don't smoke, don't ride in cars, exercise regularly, eat healthy foods, have regular checkups, have parents who lived to be at least ninety, have fire alarms and extinguishers in every room of your house, and live within a block of a major hospital with a trauma center, never get on ladders, and don't have sex with anyone ever, because that's the only way the terrorists are going to get you before anything else does.
posted by Optimus Chyme at 3:00 PM on December 21, 2005

The difference is one of disturbance of one's physical stuff.

What I meant specifically was information gathered by microphones and/or cameras (microphones would obviously be more useful)

Would you feel comfortable living in an America where 100% of internet and telephone traffic were 'bulk analyzed' for dangerous elements? Would you feel comfortable living in an America where all homes and public spaces were mic'd and everything you vocalized was 'bulk analyzed' by the government?

The difference, clearly is that you're only on the phone for a certain portion of the day, while your words could always be picked up in the second scenario.

How about if the government only listened in during certain times of the day, which you were aware of?
posted by delmoi at 3:07 PM on December 21, 2005

You think it's bad now? Wait until a terrorist group sets off a nuclear device anywhere on the planet. I would submit to you that this will happen at some point in the future, and that it will be the catalyst for measures that make anything currently being done look like a breath of fresh air.
posted by blue_beetle at 3:19 PM on December 21, 2005

Actually Kyllo was 5-4, but both sides of the decision agreed that through-the-wall observation of the home, eg. via radar, was a violation of the 4th.

As Scalia quotes Harlan in his opinion:

"a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable"

who am I to complain.

The question now revolves around the President's Constitutional powers to ignore statutory restrictions, ie what Constitutional power was the NSA exercising in collecting data on US citizens without a warrant, contrary to the provisions of FISA, and/or whether or not citizens that are suspected foreign agents lose 4th Amendment protections via FISA, and whether or not this itself is constitutional.

Wow, what a fun can of worms this administration has opened up. If they had just not gone on vacation for half of 2001 mebbe we could be talking about progress in solar powered light rail or something. Instead we gotta deal with this shit.
posted by Heywood Mogroot at 3:21 PM on December 21, 2005

Let's say part of "echelon" or whatever is cataloging ALL calls that go overseas, forever. No skin off my nose.

Not until one of your innocent calls triggers an investigation. And if that happens after you've been visiting Palestine or somewhere, on an innocent business trip, you can expect a great deal of additional inconvenience, at the least, while you try to prove that the government's suspicions are unwarranted.

At worst, you might spend a couple of years in jail while they investigate.

Here in the UK, we've had new anti-terrorism laws nigh on every year since the late seventies. I've yet to see any evidence whatsoever that any of them have made a blind bit of difference to the number of terrorist acts that are committed.

If you can offer me a single jot of evidence to the contrary though, I'd be happy to support your position.
posted by PeterMcDermott at 3:25 PM on December 21, 2005

The question now revolves around the President's Constitutional powers to ignore statutory restrictions,

Let's not beat around the Bush-- the question is if the President is allowed to break the law at will.
posted by deanc at 3:30 PM on December 21, 2005

The difference is here, no harm no foul.

This statement is false

The (honest) question is, what standing will anyone have to protest eg. the collection and retention of communications?

When everybody in society is under continual monitoring it has a decisive effect on people's day-to-day lives and their willingness to speak up against the government.

This has been asserted, but what does the case of the UK installing street cams show?

There is very little practical reason to believe that this sort of overly extensive, warrantless monitoring will truly reduce or thwart terrorist efforts.

Then it fails the "necessary & proper" test. But I disagree that it would. Collecting all communications (but only analyzing individual communications under a warrant attesting to probable cause) IMV would be an immense boon to our intelligence services. The SCOTUS has already held that "pen registers" that only record dialed numbers are constitutional.

Yeah, you "hope" the government will do the right thing. That really sounds like a good plan for a free society.

I don't think tyranny would last long in this country. Call me an optimist.

because that's the only way the terrorists are going to get you before anything else does.

I think terrorists will harm somebody here in the US before I get laid again, sad to say.

Would you feel comfortable living in an America where 100% of internet and telephone traffic were 'bulk analyzed' for dangerous elements? Would you feel comfortable living in an America where all homes and public spaces were mic'd and everything you vocalized was 'bulk analyzed' by the government?

I lived in Japan for 8 years and pretty much assumed the NSA was tapping my communications back to the US. No biggie to me.

Thing is, the home is, thankfully, sacrosanct in our Constitution and jurisprudence.

The public space issue is more interesting. Again, the UK example is instructive.
posted by Heywood Mogroot at 3:36 PM on December 21, 2005

From Justice Black's lone dissent: "A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized."

Does this mean downloading music off the internet isn't stealing?

/off-topic
posted by narwhal at 3:38 PM on December 21, 2005

Personally, I wonder exactly what kind of "machine collection and processing of data" could help identify a (potential) terrorist without some form of human intervention?

I mean, it's not as if a terrorist is likely to email, "Hi Osama! When shall I detonate the WMD?", is it? These days (if not earlier) the content of the messages would surely be codified, with innocent words standing in for suspicious ones.

Without a human to interpret the messages, this machine collection and processing sounds like just an expensive way of finding out exactly how many people are communicating with afghanistan, pakistan, iraq, syria, england, spain, morocco, kenya, tanzania, yemen, canada, etc etc etc...
posted by UbuRoivas at 3:39 PM on December 21, 2005

the question is if the President is allowed to break the law at will.

Well, there are three questions:

Q1. Can Congress limit the Executive's Constitutional powers as Commander-in-Chief by statute.

A1. (pretty sure) No.

Q2: Is unwarranted intelligence gathering on US citizens a bona fide national emergency power inherent in the congressional granting of war powers to the Executive?

A2. Dunno.

Q3. Whether or not citizens that are suspected foreign agents lose 4th Amendment protections via FISA, and whether or not this itself is constitutional.

A3. Hope not.
posted by Heywood Mogroot at 3:43 PM on December 21, 2005

I wonder exactly what kind of "machine collection and processing of data" could help identify a (potential) terrorist without some form of human intervention?

Step 1: Record every call to/fro the US, citizen or no (how can we know?).

Step 2: Find a phone in Pakistan.

Step 3: Get a warrant of probable cause, listen to every call this phone (SIM card I guess) made or received.

Step 4: Roll up a domestic cell

Step 5: Your party is in power for the foreseeable future.
posted by Heywood Mogroot at 3:46 PM on December 21, 2005

"Hi Osama! When shall I detonate the WMD?"

Oh, great! By writing those magical words you've gone and triggered the NSA sniffer program and we're all under surveillance and investigation! Thanks, buddy.
posted by ericb at 3:49 PM on December 21, 2005

We aren't having much of a debate about whether we should be doing these things

Our memories of Hoover's and Nixon's abuses are far, far away. Hell, I *have* no memories of them, just reports like how the FBI dogged MLK.

Heh. Clinton has the FBI Filegate thing to answer for, though. That oughtta give some people pause, though I suppose their answer would be not allowing a Democrat within 50yds of the Whitehouse.
posted by Heywood Mogroot at 3:58 PM on December 21, 2005

Q1. Can Congress limit the Executive's Constitutional powers as Commander-in-Chief by statute.
A1. (pretty sure) No.

Does this mean that Congress just has to declare the war over in order for us to be safe from the Executive branch?
posted by Slothrup at 3:59 PM on December 21, 2005

Q2: Is unwarranted intelligence gathering on US citizens a bona fide national emergency power inherent in the congressional granting of war powers to the Executive?

You 'dunno'? Are you serious? I don't think this makes sense to anybody except the Bush administration. There's no debate here. The entire notion that President possesses unlimited, unenumerated powers during times of war is not only logically bogus there is plenty of case law against it. Please. You 'dunno' if you're only interested in begging the question.
posted by nixerman at 3:59 PM on December 21, 2005

Heywood, I also must comment on your hypocrisy. You cannot do a close reading of the 4th amendment one second and then turn around and imply the president's war powers are unlimited. If you are going to take the position that, during times of the war, the President may arbitrarily decide to break any federal law he wants in the interest of national security then it's up to you to provide a reasoned Constitutional justification for such sweeping powers. And you won't find any such nonsense in the document itself. It requires an enormously broad reading of the Constitution--the sort of broad reading that borders on nonsense. (It doesn't even make sense that the Constitution would provide for the Executive with the ability to do an end run around the Constitution.) Your Q2 is an attempt to avoid the real issue. The real issue is whether the President can break the law with impunity.
posted by nixerman at 4:12 PM on December 21, 2005

You think it's bad now? Wait until a terrorist group sets off a nuclear device anywhere on the planet. I would submit to you that this will happen at some point in the future, and that it will be the catalyst for measures that make anything currently being done look like a breath of fresh air.
posted by blue_beetle at 6:19 PM EST on December 21 [!]

I don't believe a terrorist nuclear device is a given, although for a while there after 911, I couldn't see how it wasn't a matter of time here in NYC. But if it does happen under this administration, it's true. GWB will become King for life, and we the people his subjects (shudder..).

It's going to be a race against time, and against what I believe is the most misguided incompetent power grabbing administration since McKinley. I think this administration makes us more vulnerable because they as yet fail to understand that the true strength of democracy is in fact Democracy, with strong (not diluted) democratic principals based on the Constitution. That means true regard and respect for civil liberties and for balance of powers. It's going to take a true global effort with real coalitions, it's going to take reaching out to marginalized peoples, as well as intelligence and ability and inspiration. A Lincoln, an FDR, a Kennedy or a B. Clinton. In essence a Genius. Not a criminal president who is a liar.

/grits teeth
posted by Skygazer at 4:23 PM on December 21, 2005

I don't think this makes sense to anybody except the Bush administration

You 'dunno'? Are you serious?

Depends on the connection of the surveillance acts to the prosecution of the "war" on AQ I guess.

The SCOTUS has done a pretty good job of avoiding the question of surveillance of US citizens wrt foreign intelligence ops. In the Katz case (1967) the majority tried to keep this open, with White saying "WTF people?" in a separate opinion.

The entire notion that President possesses unlimited, unenumerated powers during times of war

"inherent" != "unlimited"

imply the president's war powers are unlimited

See immediately above.

The real issue is whether the President can break the law with impunity.

The question is what is the Executive's wartime powers connected with the common defense and public safety, "war" here being the nexus of conflict between the US and AQ, Inc.

I personally think FISA is clear enough about this, and it is not an undue burden (or whatever the term of art is) on the administration in its prosecution of the war on AQ, and like most things emanating from this White House, the attempt to tie its domestic intelligence actions to the statute is BS... 'statutory rape' if you will.
posted by Heywood Mogroot at 4:24 PM on December 21, 2005

GWB will become King for life, and we the people his subjects (shudder..).

I disagree. GWB is the frontman. The powers behind him can, and will, find a replacement, perhaps Condi.
posted by Heywood Mogroot at 4:26 PM on December 21, 2005

I'm ready for a new reality show; if any of you have the money and time, run with it.

First, you gather a bunch of people together, the kind of folks who say "I don't care if the government listens to my phone calls, because I'm obeying the law and doing nothing wrong." You get them to agree to have their phone calls and whereabouts monitored 24/7 for a few months.

Then you observe 'em, and figure out which ones don't mind secret prisons and suspected terrorists being held without being accused of a crime. Those folks you then arrest on any pretense whatsoever, and throw 'em in a lockup, without telling them what they've done.

Then you let them out after the next election.

Okay, maybe it's not great television, but I'd sure like to see it happen anyway.
posted by davejay at 4:27 PM on December 21, 2005

Heywood, have you ever thought that maybe you're a little too afraid of terrorists? I mean, as far as dangerous things go, they're not even in the top 50. It seems both obssessive and cowardly.
posted by Optimus Chyme at 4:28 PM on December 21, 2005

Actually, White wrote this in 1967:

In joining the Court's opinion, I note the Court's acknowledgment that there are circumstances in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. New York, 388 U.S. 41, 112 -118 (1967) (WHITE, J., [389 U.S. 347, 364] dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.
posted by Heywood Mogroot at 4:30 PM on December 21, 2005

have you ever thought that maybe you're a little too afraid of terrorists?

Have you ever though that maybe you're a little too afraid of the Executive Branch?

This is a semi-serious retort. AQ has killed 3,000 citizens and caused ~$100B in economic damages during the Bush admin; don't think the Bushies have done that much damage yet (though the score wrt Iraq is right up there).

It's an interesting question, which to fear more. I have sufficient faith in our institutions and civic-mindedness of our polity that abusers of power will meet justice. cf. Delay and Abramoff.

Hell, even Ashcroft put Fitzgerald on the Plame case. That was a stand-up move.

With these AQ-esque assholes, the cost/benefit ratio is murkier. I think eg. recording every frigging cell phone call made is an excellent idea, for the reasons I stated above.

Jurisprudence sez 4th Amendment protections are a bubble around our persons and domiciles. No rights are absolute though, so we find our 4th Amendment rights sacrificed in such areas as police searches of our cars, the airport security kabuki shows (where's the warrant for the DHS feeling me up???), etc.

There is a test of 'reasonableness', and I find surveillance measures that could in fact prevent more 9/11s pretty reasonable.
posted by Heywood Mogroot at 4:43 PM on December 21, 2005

December 21, 2005
Appeals Court Rejects U.S. Bid to Transfer Terror Suspect
(NYTimes)

WASHINGTON, Dec. 21 - A federal appeals court ... said in a strongly worded opinion that the Justice Department's attempt to transfer Mr. Padilla gave the appearance that the government was trying to manipulate the court system to prevent the Supreme Court from reviewing the case. The judges warned that the administration might be jeopardizing its credibility before the courts in terrorism cases. ...
posted by hank at 4:58 PM on December 21, 2005

Heywood, your opinion is your opinion, and you're entitled to it. But you keep saying it over and over again in different ways in several threads. Fine, we get it -- you don't think guaranteed protections from government are as important as empowering government to protect us from outside threat. Personally I think that's a false dichotomy (and I'm in very, very good company there), but at this point it's clear that there's no point in going into that with you.

My point here is that you keep producing your opinion as a counterargument. It isn't a counterargument, it's your opinion.
posted by George_Spiggott at 5:00 PM on December 21, 2005

December 21, 2005
Appeals Court Rejects U.S. Bid to Transfer Terror Suspect

I'm feeling all warm and fuzzy about the federal judiciary right now (Posner nonwithstanding). Ahoy, balance of powers!
posted by footnote at 5:03 PM on December 21, 2005

Heywood,

"inherent" != "unlimited"

Um? Ok. It seems you are just trying to sidestep the issue again. You keep repeating that the government should be able to spy on citizens in times of war. Fine, maybe they should. Like George said, that's your opinion and you clearly want to stick to it. But that is only one aspect of the issue here. Again, the primary issue here is that the President broke a set of laws that were, in accordance with the Constitution, set by Congress. Throw up all the Q's you want. The real question, again, is: Does the President have the power to arbitrarily ignore federal laws in the interest of national security? Take a moment to think about this. It should be pretty clear that if the President does have unenumerated--and thus effectively unlimited--powers during times of war then a whole lotta people have been wrong about the Constitution and its authorial intent. Though you may not want to admit it, the ridiculousness of this interpretation is self-evident. In no rational reading does the Constitution grant the President the authority to step outside the Constitution and begin breaking laws at his discretion.
posted by nixerman at 5:20 PM on December 21, 2005

Personally I think that's a false dichotomy

How so? Certain intelligence collection techniques are simply incompatible with the FISC warrant rigamarole (and that's all it is, given its 99.99% approval rate). I think the Bushies should have gone to Congress to get explicit sign-off on this, but in the end it's the Executive having increased powers.

George Will says it well:
On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.

I'm not arguing that the Executive has the power to take these actions, I'm arguing that, given the threat, the People, through their representatives, and subject to judicial review to ensure protection of the civil liberties of the minority, has the right to grant the Executive these powers, should the preservation of public safety demand it.

Fears of "Oh Noes! The Feds are taking away my freedoms!" aren't necessarily going to fly with the electorate, and that's the only debate that matters.
posted by Heywood Mogroot at 5:27 PM on December 21, 2005

This is a semi-serious retort. AQ has killed 3,000 citizens and caused ~$100B in economic damages during the Bush admin; don't think the Bushies have done that much damage yet (though the score wrt Iraq is right up there).

Let me try and wrap my head around what HM is saying.

- evidently 3000 deaths on US soil are "worth" more than 30,000 civvie deaths in Iraq. This works out roughly to one person in Iraq being worth one tenth of a person on American soil. That's an interesting view indeed.

- more than $300 billion is somehow less than $100 billion? We're not even counting the economic impact of the American troops who lost their lives, or that of those who are now so wounded that they can no longer work ordinary jobs, either. Heywood Mogroot must be the guy who does math for Bush's OMB.
posted by clevershark at 5:32 PM on December 21, 2005

This is a semi-serious retort. AQ has killed 3,000 citizens and caused ~$100B in economic damages during the Bush admin; don't think the Bushies have done that much damage yet (though the score wrt Iraq is right up there).
posted by Heywood Mogroot at 4:43 PM PST on December 21

Here are dead serious statistics: approximately 2175 U.S. soldiers have been KIA in the war on Iraq, a country that had no link to the 9/11 terror attacks in D.C. and NYC. Approximately 30,000 Iraqi civilians have been killed in this war. So yeah, they've done much more damage in terms of loss of human life.

Economically? Oh, yeah. The 100 billion dollars the 9/11 attacks cost us is less than half of the $250 billion we've spent on conquering Iraq, a country that, again, had no link to the 9/11 attacks. Let's not even talk about the budget surplus Bush squandered and and the geometrically increasing debt he's given us, all while asking for tax cuts for his billionaire friends.

Maybe you and Dennis Miller should go buy a bunker somewhere and let the rest of us get on with our lives.
posted by Optimus Chyme at 5:34 PM on December 21, 2005

Heywood: The threat doesn't even seem to be that great, I mean there are always threats and clearly people don't want to mitigate all of them (try getting GPS speed limiters in cars, it would save far more lives then any anti-terrorist system imaginable)
posted by delmoi at 5:34 PM on December 21, 2005

Heywood Mogroot must be the guy who does math for Bush's OMB.

LOL.
posted by delmoi at 5:36 PM on December 21, 2005

In no rational reading does the Constitution grant the President the authority to step outside the Constitution

whoa, "step outside the constitution" is rhetorical BS.

The constitution guarantees some rights, we have implicit rights via the 9th and various penumbrae, but the constitution also grants the state powers, and these powers can and do enable the state to severely curtail these same individual rights via the "necessary and proper", "due process", and "undue burden" judicial review process.

and begin breaking laws at his discretion.

Actually, it is arguable that if the law(s) in question impair his Constitutional powers as Commander-in-Chief, then he CAN break them with impunity, since the laws themselves would be thrown out by the judiciary as unconstitutional.

What a great system we've got. The founding fathers were truly geniuses, and I doubt we lack the political maturity to re-create this system of government today.

and fwiw, I think John Yoo is a grade-A fucktard.
posted by Heywood Mogroot at 5:39 PM on December 21, 2005

Just quickly, to those asking if Dickie P. is aiming for SCOTUS, he's not. He writes a book or more a year and publishes most of his opinions. He was a prof. of mine in law school, and he's also well known as a genius and a nut (anyone who reads my posts knows that in this case, I'm going with "nut", or possibly scared old man). Anyway, the fact is that he has never been shy with his controversial opinions, and if he were ever put up for the Court, his Borking would make the actual Borking of Bork look like . . well like the Roberts confirmation, I guess.
posted by The Bellman at 5:41 PM on December 21, 2005

"Ecoterror is any crime committed in the name of saving nature."

"The Catholic Workers Group also advocates a communist distribution of resources."

"[PETA hires} interns from Asia and otherlocations for the sole purpose of committing criminal acts."(excerpts from FBI Files)
posted by hank at 5:42 PM on December 21, 2005

Heywood Mogroot must be the guy who does math for Bush's OMB.

Unfortunately, the "CBO" also has these numbers on its head. The people signed off on this war, both via its representatives in 2002 and with the reelection of Bush in 2004.

Granted, that doesn't reduce the argument that the Bush admin is apparently as harmful to the public interest as AQ.

I would argue though that if it were in AQ's power to kill eg. 50,000 Americans they would. After all, there could have been 50,000 in the buildings that they hit 9/11.

Frankly, I'm finding the "pro-terrorist" bent here somewhat tiring to argue against.

Electorally, people want the state to protect them by all means necessary... Kerry uttering those stupid words "Global Test" (even though the intended meaning was different than the initial apprehension) cost him the election IMV.

Like I said elsewhere, I'm interested in seeing how this plays out.
posted by Heywood Mogroot at 5:47 PM on December 21, 2005

It’s Not Your Father’s NSA.
posted by ericb at 5:57 PM on December 21, 2005

I mean there are always threats and clearly people don't want to mitigate all of them (try getting GPS speed limiters in cars, it would save far more lives then any anti-terrorist system imaginable)

Right. The balance is always that slippery word "reasonable".

For some reason, people presently do want to mitigate the threat of another 9/11, and have been willing to endure quite heavy burdens, eg. the airport security shows, invading a sovereign Arab country to be on the safe side, etc.

I don't think people have a grip on how big & deep the intelligence gathering operations are, though I could be wrong here, so their apprehension of the risks are not necessarily calibrated accurately.

The question is, in the end, how willing the people are to trust their government. There's a lot of cynicism here that I don't really see in RL, though I could be missing things.
posted by Heywood Mogroot at 5:57 PM on December 21, 2005

Frankly, I'm finding the "pro-terrorist" bent here somewhat tiring to argue against.

What the fuck are you talking about?
posted by Optimus Chyme at 5:58 PM on December 21, 2005

I think he's channeling King George, who was quite upset by similar complaints

# He has refused his Assent to Laws, the most
wholesome and necessary for the public good.
# He has obstructed the Administration of Justice,
by refusing his Assent to Laws for establishing
Judiciary powers.
# He has affected to render the Military independent
of and superior to the Civil power.
# For depriving us in many cases, of the benefits
of Trial by Jury.
# For transporting us beyond Seas to be tried
for pretended offences.
posted by hank at 6:19 PM on December 21, 2005

Opposing the NSA's use of the tools at its disposal to analyze foreign threats is, at the end of the day, pro-terrorist to some degree, in that I suspect these tools are pretty strong.

Note that there's a ton of gray area here. What if the tools do not identify actual people, eg. phone number 343-543-3323 is just encoded (by the collecting agency) with the nodename "D234-FF33-3838" before hand-off to the analysts.

Sure, the power to abuse this capability is still present, but D234-FF33-3838's (whoever they may be) privacy seems pretty well secured when the intelligence goes to the intelligence stage.
posted by Heywood Mogroot at 6:23 PM on December 21, 2005

Opposing the NSA's use of the tools at its disposal to analyze foreign threats is, at the end of the day, pro-terrorist to some degree, in that I suspect these tools are pretty strong.

Okay well then I guess supporting Bush in any way whatsoever makes you pro-torture and anti-freedom then.

Are you drunk or something?
posted by Optimus Chyme at 6:29 PM on December 21, 2005

Maybe we should create an RIAA sort of agency for American Citizens - then have each individual copyright every word out of our mouths then sue the Federal government for stealing our intellectual property. Do you think that Orrin Hatch would get behind us? Sure he would, as long as our newly formed agency shoves enough money up his ass.
posted by any major dude at 6:34 PM on December 21, 2005

Heywood, opposing the lawful use of the NSA's tools could be considered pro-terrorist. Opposing the unlawful use of the NSA to spy on US citizens is not pro-terrorist in any way, that's actually called patriotism.

The hair being split here is whether Bush overstepped his power by not gaining legal court orders to initiate the wiretaps.

I'd say supporting Bush is alot more explicit condonation of his policies than questioning the legality of using the NSA for domestic spying.
posted by fenriq at 6:40 PM on December 21, 2005

hank : # For transporting us beyond Seas to be tried
for pretended offences.

No, no. What Bush is doing is completely different from this. He's not even bothering with trials.
posted by kaemaril at 6:49 PM on December 21, 2005

Okay well then I guess supporting Bush in any way whatsoever makes you pro-torture and anti-freedom then.

I don't support Bush at all, he's been a walking disaster area for the nation and my ideals for 5 years now.

This really isn't about Bush, though he has made mistakes. It's about the NSA, what they should be doing with the tools at their disposal, and what checks & balances are present to secure civil liberties from abuse.

My freedoms aren't going to be infringed in the slightest should eg. all the calls to/from Pakistan be recorded and catalogued for future exploitation.

Yes, "they came for the Pakistanis, and I was not Pakistani" is a valid counter-argument, but it does get back to what "reasonable" is in the context of national security measures.
posted by Heywood Mogroot at 6:52 PM on December 21, 2005

Heywood,

Actually, it is arguable that if the law(s) in question impair his Constitutional powers as Commander-in-Chief, then he CAN break them with impunity, since the laws themselves would be thrown out by the judiciary as unconstitutional.

This makes absolutely no sense. Is it up to the Executive to decide which laws are constitutional and which aren't constitutional? Can the President predict the future and be 100% certain the judiciary will throw out the laws? Your argument is nonsense. The President cannot simply decide that (1) law X is unconstitutional (2) I get to break unconstitutinal laws with impunity. At this point you're just reaching.
posted by nixerman at 6:53 PM on December 21, 2005

Frankly, I'm finding the "pro-terrorist" bent here somewhat tiring to argue against.

That is the most apallingly stupid thing I've seen written on the web today.
posted by clevershark at 6:54 PM on December 21, 2005

clevershark, heh, at least he has an exit plan. That's more than can be said for some people. Anyways, I think it's starting to become clear that Heywood's arguments are largely vacuous.
posted by nixerman at 7:01 PM on December 21, 2005

The President cannot simply decide that (1) law X is unconstitutional (2) I get to break unconstitutinal laws with impunity

I was arguing the theoretical of Congress actually passing a law that would not survive judicial review as constitutional, and not arguing about the present matter at all.

My argument is simply *IF* the law is unconstitutional, the Executive can break it with impunity, unless (I guess) the Congress takes him out via successful impeachment anyway.

I should, I suppose, read the John Yoo memoranda regarding this now...
posted by Heywood Mogroot at 7:23 PM on December 21, 2005

Legally, the president MUST follow the law. If he is able to convince Congress to amend or rewrite the law we are dealing with here, then that can be done. But he can not...repeat: cannot...put the law aside and do what he wants. That specific law was put into place to guard against the political uses that have nothing to do with clear and present dangers to the country, as in the instance of Nixon using intel against those he thought of as opponents or enemies of his leadership. If congress were to impeace him--not likely unless the Dems get a majority in the House--it would be because he has broken the laws of the land.
posted by Postroad at 7:35 PM on December 21, 2005

bullshit. His was the accepted reading of the 4th Amendment until 1967.

And to that I would say, it took the courts a few years to deal with a case that caught them up on the new technologies that allowed the possibility of search and seizure of non-tangibles. There's no point hearing cases about wiretapping before phones exist. When the cases were finally brought, because of abuses, look what happened. Gee!

the constitution also grants the state powers

MMmm, sort of. It does not grant powers -- it allows them to be reserved to the states unless and until the US Constitution wants them. It's secondary, putting the powers of the United States first and allowing States to make provisions where the Constitution does not tread. The Supremacy Clause elaborates.

The tenth amendment itself defines states' powers only as the leavings of the constituion: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

But now I must bow out of this thread, as my skin is becoming irritated from the sharp, grating bits of shrapnel flying from the blade of Heywood Mogroot's axe as it whines on the whetstone.
posted by Miko at 7:43 PM on December 21, 2005

Heywood : The NSA has repeatedly stated that it can't police even the public utterances on public boards frequented by Islamic radicals because it doesn't have enough Arabic speakers, much less Farsi or Pashtun.

Now, there's a lot of babbling here about how a system with very futuristic capabilities _could_ be constructed someday with some nods to protecting Constitutional rights. But the NSA has been listening to conversations since 2002, with the blessing of the President. We're talking about English speaking dudes with headphones, here. And they don't give a shit about your rights, or limits to executive power. (Could have gone through Congress, otherwise.) And they aren't keeping you safe from any terrorist that doesn't have the courtesy to speak English.
posted by swell at 7:51 PM on December 21, 2005

Results 1 - 10 of about 1,950,000 for nude pictures michael moore.
posted by swell at 7:58 PM on December 21, 2005

My argument is simply *IF* the law is unconstitutional, the Executive can break it with impunity, unless (I guess) the Congress takes him out via successful impeachment anyway.

Heywood, this is exactly what you said before and, hmm, yeah, I think it's still nonsense. The Executive cannot (1) decide that a given law is unconstituional (2) break federal law with impunity. No reading of the Constitution supports either (1) or (2). And impeachment isn't a political too, it's a criminal proceeding. Seriously, at this point, I suspect you're not so much broadly interpreting the Constituion as you are simply just dreaming (or smoking?). Even if the President's unenumerated war powers allow him to spy on US citizens (unlikely), even if the FISA laws are unconstitutional (highly unlikely), and even if the government could be trusted not to abuse such extraordinary powers (astronimically unlikely), it doesn't change the simple fact that our laws, as they are now, do not support your argument. In this case it's quite clear that the President broke the law and committed a crime. In light of this, you may want to revisit all your rhetoric and dancing around the fourth amendment and the nature of the Executive's war powers.
posted by nixerman at 8:13 PM on December 21, 2005

That's right Swell and once again we come to this fork in the road and/or wall or whatever the hell it is, which is that this administrations actions are suspect and I would argue more subject to constitutional restraint.

Heywood Mogroot, I hear what you're saying , but the Bush admin has repeatedly proven itself unworthy of taking liberties with the constitution. That makes it unfit to read any expansion of executive privilege in the constitution in regard to the abridgement of fourth amendment rights. Basically, just as someone who's lied to you in the past would cause greater suspicion. From the mouth of our President himself: "Fool me once, shame on — shame on you. Fool me — you can't get fooled again"

Exactly.
posted by Skygazer at 8:16 PM on December 21, 2005

in the last 100 years, who's killed more people - secret police/intelligence agencies or terrorists?

which do you think we have more to fear from?
posted by pyramid termite at 8:43 PM on December 21, 2005

As Fredric Brown put it so well in "The Weapon":

“Only a madman would give a loaded revolver to an idiot.”
Let alone spy tools, without oversight, to a president.
posted by hank at 8:44 PM on December 21, 2005

My argument is simply *IF* the law is unconstitutional, the Executive can break it with impunity, unless (I guess) the Congress takes him out via successful impeachment anyway.

No. He can't. Whether Congress takes him out or not. You're terribly mistaken and have afforded him dictatorial powers when we've all ensured he couldn't have those powers. If he breaks the law, he's guilty and should be removed--a criminal is a criminal, whether they're Tom DeLay and Abramoff and Cunningham and the CEO of Diebold or not.

Why don't you get that?
posted by amberglow at 8:54 PM on December 21, 2005

Speaking of which, the US is not actually "at war" in Iraq or Afghanistan. War was never declared.

The press and politicians talk about "the war" all the time. As far as I'm aware, the US is occupying Iraq whilst it tries to foster a functioning democracy there.

But the fact that the US is NOT in a state of war limits George W. Bush's presidential powers considerably, as far as I know.

I must be missing some fine print somewhere, a special clause that says "US presidents can declare war preemptively and summarily and so by executive fiat grant themselves the power of kings."

Just saying.
posted by troutfishing at 8:55 PM on December 21, 2005

Heywood, were you even alive during Watergate?
posted by amberglow at 8:55 PM on December 21, 2005

In other words - to make the point unavoidably blunt :

The War Powers Act does not apply. The US is not at war. I repeat....

Dahlia Lithwick, for Slate, covered this ground back in '01. The logic of her case still applies today.
posted by troutfishing at 9:02 PM on December 21, 2005

I've heard it phrased various ways on various issues...outrageous offenses dismissed with a rhetorical wave:

- Domestic spying: I am doing what you expect me to do, and at the same time, safeguarding the civil liberties of the country."

- Iraq invasion: "the defect is in international law"

- Aggression: "We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries."

and I'm certain I could find similar dismissals of issues like torture, secret prisons, secret laws, holding American citizens without charges, discarding the Geneva Conventions, and so on.

Here's the best summation I've seen...four paragraphs to completely nail it:

Look. We have a President here who is making a claim of unlimited power, for the duration of a war that may never end. Oh, he says it’s limited by the country’s laws, but they’ve got a crack legal team that reliably interprets the laws to say that the President gets to do whatever he wants. It amounts to the same thing.

I am not exaggerating. I am really and truly not.

September 11 started the war. When will it end? Maybe never. Where is the battlefield? The entire world, including the United States. Who is an enemy combatant? Anyone the President says is an enemy combatant, including a U.S. citizen–no need for a charge, no need for a trial, no need for access to a lawyer. What if they’re found not to be an enemy combatant? We can keep them in prison anyway, and we don’t have to tell their families they’re alive or their lawyers that they were cleared. What can you do to an enemy combatant? Anything you want. Detain him forever, for the rest of his life, because this is a war like any other and we have always been able to detain POWs for the duration of the war. But you don’t need to follow the Geneva Conventions, because this is a war like no other in our history. And oh yes–if the President decides that we need to torture a prisoner for the war effort, it’s unconstitutional for Congress to stop him. They took that position in an official memo, and they have not backed down from it. They have said it was “unnecessary” but they have never backed down from it.

They are not only entitled to do these things to people; they are entitled to do them in secret. When Congress asks for information about them, they can just ignore it. And they are entitled to actively deceive the public about all this.

That’s the power they claim. At what point are we going to take that claim seriously?

Krugman nailed it years ago:

Most people have been slow to realize just how awesome a sea change has taken place in the domestic political scene....The public still has little sense of how radical our leading politicians really are....Just before putting this book to bed, I discovered a volume that describes the situation almost perfectly....an old book by, of all people, Henry Kissinger....

In the first few pages, Kissinger describes the problems confronting a heretofore stable diplomatic system when it is faced with a "revolutionary power" — a power that does not accept that system's legitimacy....It seems clear to me that one should regard America's right-wing movement...as a revolutionary power in Kissinger's sense....

In fact, there's ample evidence that key elements of the coalition that now runs the country believe that some long-established American political and social institutions should not, in principle, exist....Consider, for example....New Deal programs like Social Security and unemployment insurance, Great Society programs like Medicare....Or consider foreign policy....separation of church and state....The goal would seem to be something like this: a country that basically has no social safety net at home, which relies mainly on military force to enforce its will abroad, in which schools don't teach evolution but do teach religion and — possibly — in which elections are only a formality....

Surely, says the conventional wisdom, we should discount this rhetoric: the goals of the right are more limited than this picture suggests. Or are they?

Back to Kissinger. His description of the baffled response of established powers in the face of a revolutionary challenge works equally well as an account of how the American political and media establishment has responded to the radicalism of the Bush administration over the past two years:...."they find it nearly impossible to take at face value the assertions of the revolutionary power that it means to smash the existing framework"....this passage sent chills down my spine....

There's a pattern...within the Bush admin-istration....which should suggest that the administration itself has radical goals. But in each case the administration has reassured moderates by pretending otherwise — by offering rationales for its policy that don't seem all that radical. And in each case moderates have followed a strategy of appeasement....this is hard for journalists to deal with: they don't want to sound like crazy conspiracy theorists. But there's nothing crazy about ferreting out the real goals of the right wing; on the contrary, it's unrealistic to pretend that there isn't a sort of conspiracy here, albeit one whose organization and goals are pretty much out in the open....

Here's a bit more from Kissinger: "The distinguishing feature of a revolutionary power is not that it feels threatened...but that absolutely nothing can reassure it (Kissinger's emphasis). Only absolute security — the neutralization of the opponent — is considered a sufficient guarantee"....I don't know where the right's agenda stops, but I have learned never to assume that it can be appeased through limited concessions. Pundits who predict moderation on the part of the Bush administration, on any issue, have been consistently wrong....

Consider the big picture. What are we talking about?

A little torture here, a little secret prison there, a little suspension of habeus corpus, a little spying on Americans, a little extraconstitutional activity?

Jack Cafferty:

Who cares about whether the Patriot Act gets renewed? Want to abuse our civil liberties? Just do it.

Who cares about the Geneva Conventions. Want to torture prisoners? Just do it.

Who cares about rules concerning the identity of CIA agents. Want to reveal the name of a covert operative? Just do it.

Who cares about whether the intelligence concerning WMDS is accurate. Want to invade Iraq? Just do it.

Who cares about qualifications to serve on the nation's highest court. Want to nominate a personal friend with no qualifications? Just do it.

And the latest outrage, which I read about in "The New York Times" this morning, who cares about needing a court order to eavesdrop on American citizens. Want to wiretap their phone conversations? Just do it.

What a joke. A very cruel, very sad joke.

Here's what's happening: They do not accept the legitimacy of the existing framework. Argue each outrage case by case as you may, but there's no denying the trend. On issue after issue, Bush and his circle reject American and international law, and the framework built by past leaders, on any matter. Take any issue and you'll find a radical departure from past strategies, warranted or not, and a practical war on consensus.

Your being "reasonable" about it all is their primary advantage. All that's required is for you to do nothing.

.
.
.

Impeach.
posted by edverb at 9:08 PM on December 21, 2005 [1 favorite]

Thanks - I was looking for that Kissinger quote, and there it is.
posted by troutfishing at 9:29 PM on December 21, 2005

"The distinguishing feature of a revolutionary power is not that it feels threatened...but that absolutely nothing can reassure it. (Kissinger's emphasis)

That needs repeating.
posted by Skygazer at 9:31 PM on December 21, 2005

it took the courts a few years to deal with a case that caught them up on the new technologies that allowed the possibility of search and seizure of non-tangibles

40 years! The Olmstead case was decided 5-4 that surveillance wasn't search, in 1928.

Justice Black was correct, that the Constitution needed a right to privacy, and the 4th Amendment was close enough to stash it for the SCOTUS in 1967. Not that I'm complaining, I just find it fascinating that people can write "search & seizure of non-tangibles" with a straight face.

Justice Black in Katz:
Thus, I think that although the Court attempts to convey the impression that for some reason today Olmstead and Goldman are no longer good law, it must face up to the fact that these cases have never been overruled or even "eroded." It is the Court's opinions in this case and Berger which for the first time since 1791, when the Fourth Amendment was adopted, have declared that eavesdropping is subject to Fourth Amendment restrictions and that conversations can be "seized." * I must align myself with all those judges who up to this year have never been able to impute such a meaning to the words of the Amendment.

Black goes on to point out that this statement in the Katz decision:

The Fourth Amendment governs not only the seizure of tangible items but extends as well to the recording of oral statements. Silverman v. United States
Black:

Silverman is an interesting choice since there the Court expressly refused to re-examine the rationale of Olmstead or Goldman although such a re-examination was strenuously urged upon the Court by the petitioners' counsel.

Here is where the Silverman decision "explicitly refuses" to revisit prior decisions holding that eavesdropping is not prohibited by the 4th:

"The facts of the present case, however, do not require us to consider the large questions which have been argued. We need not here contemplate the Fourth Amendment implications of these and other frightening paraphernalia which the vaunted marvels of an electronic age may visit upon human society. Nor do the circumstances here make necessary a re-examination of the Court's previous decisions in this area. For a fair reading of the record in this case shows that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners

It boggles my mind that the Katz decision could so brazenly refer to the Silverman decision as "eroding" previous decisions when the Silverman decision does absolutely no such thing, as Black pointed out above.

The right to privacy in the 4th is a construction out of solid air.
posted by Heywood Mogroot at 9:42 PM on December 21, 2005

Why don't you get that?

if I break an unconstitutional law do I (necessarily) get punished? Same principle. For the 3rd time, I'm not talking about this case, but something manifestly unconstitutional, like the Congress trying to command the military via legislation.

Heywood, were you even alive during Watergate?

Yes and no. My earliest political memories date from the Republican convention in 1976.
posted by Heywood Mogroot at 9:46 PM on December 21, 2005

if you do, yes, you do. It's basic--even little kids understand it. It doesn't matter if the law is wrong--you have to abide by it until you get it changed. See prohibition for just one example. If you lead the country the responsibility to abide by the laws are even higher--you swore to do it.
posted by amberglow at 10:46 PM on December 21, 2005

it's even beyond basic--we have a system--no individual no matter what their position is allowed to ignore it. We learned during Watergate (and before that, when they interned the Japanese) that no one is above the law--no one. You really need to read up on what Nixon did, and what happened. I was just a kid, but the media was better then, and i saw it all--and learned that even presidents are not above the law and Constitution--no one is. It's essential to the functioning of the country.
posted by amberglow at 10:50 PM on December 21, 2005

I feel as if I'm watching great person go from healthy to developing dementia and dying of cancer, almost overnight.

The mental and moral rot in America, that is demonstrated daily since the events of 9/11, is profoundly depressing.

Question: When the watchers watch everything, who watches the watchers? or if you prefer: When the police can exercise their powers indiscriminantly, who polices the police?

Rampant, indiscriminate surveillance of everyone does not, and never will, include surveillance of the surveyors. This sort of activity does not protect you, it protects the surveyors; it hands them absolute power over information - over "fact" and "fiction".

Real protection is only gained by being vigilant, educated, engaged in your society, respectful of your fellow citizens (and other inhabitants of the world), etc... all else is an illusion of protection.

To hear a federal Judge, a presumably well educated and intelligent person, make such remarkably ignorant statements is indicative of the dire straits that the USA is in.
posted by C.Batt at 11:05 PM on December 21, 2005

amberglow, tell it to Rosa Parks, and the hundreds if not thousands of people who the SCOTUS has set free due to the invalidation of an unconstitutional statute that they had violated.

I'm not saying that Bush is above the law, I'm saying that unconstitutional laws will not, in the end, necessarily be applied to him, and in fact, it is my opinion that the administration would have the duty to force a constitutional crisis over what it (bona fidely) felt were Congressional usurpations of its Constitutional authority.

Not that I believe the present mess is related to anything like that. If it helps, imagine Clinton standing up to a total batshit insane Gingrich law.
posted by Heywood Mogroot at 11:19 PM on December 21, 2005

C. Batt: the press, and the people, watches the watchers.

Theoretically.

DC would go nuclear should it come out that the Executive abused their powers. In 1974 the Dems took 48 seats from the Republicans, a slaughter that cemented their majority for 20 years.
posted by Heywood Mogroot at 11:30 PM on December 21, 2005

"Unconstitutional laws"? "Congressional usurpations of [the Administration's] Constitutional authority"? Are you a complete whack job?

The president is the Commander in Chief of the armed forces, NOT of the united states, NOT its citizens or any other institutions EXCEPT the armed forces. The president is not at liberty to use the apparatus of government willy-nilly upon the citizens of this country free of oversight or legislative backing, and nothing in the constitution or the traditions of this country give him that right. Using the NSA -- quasimilitary at best -- against civilians residing inside this country -- not a legitimate target for military action -- is not within the legitimate powers of the president; in fact that is precisely the sort of discretionary power the president should be denied. Nothing, anywhere implicitly or explicitly authorizes him to do so. He must go to congress explicitly to obtain such powers and he did not do so.
posted by George_Spiggott at 11:39 PM on December 21, 2005

george, for the nth time my hypothetical has nothing to do with the present NSA case but, eg. Gingrich telling Clinton (via legislation) that he could deploy infantry but not tanks to Bosnia.

He must go to congress explicitly to obtain such powers and he did not do so.

I have agreed with the numerous times. I'm talking about a Constitutional Crisis hypothetical here. Using the NSA to spy on civs clearly requires Congressional and Judicial sign-offs, war powers or no.
posted by Heywood Mogroot at 11:49 PM on December 21, 2005

Hey, heywood, you're not even consistent. You're all over the map, from constructionist/ literalist/ fundamentalist to wild-eyed radical.

First you insist on a stringent literal reading of the Constitution, including impossible, absurd arguments about technology that didn't exist 200 years ago and couldn't be specifically addressed in the document.

But then you go all soft and wooly about "war." The Constitution that you honor in letter (failing to understand its spirit) specifies quite clearly what war is, and what's required to go to war. Congress has to declare war. The president can't. No ambiguity at all. Crystal clear.

Congress didn't declare war. Therefore, we are not at war. Period, paragraph, end of story.

The whole vast, clanking array of fabulous powers you (mistakenly) imagine the president to possess in "wartime" is thus irrelevant. This isn't wartime, because, again, we are not at war.

Q.E.D., babe.
posted by clicktosubmit at 1:27 AM on December 22, 2005

Oooops, I now see that troutfishing has already cast this same exact pearl before you, heywood, to no discernable effect.

Never mind.
posted by clicktosubmit at 1:34 AM on December 22, 2005

The trading of civil liberties comes when this information is abused, not collected or analyzed pursuant to the USG's constitutional mandate to provide for the common defense.

What I find mildly perplexing is that most people I have talked to who support your view are at the same time deeply convinced that you can never give your handguns away - because it's a fundamental element of American freedom to be able to defend yourself against a potentially mischievous government.

Not saying that's true in your case (I just don't know), but it can certainly be said of a lot of conservative people in the US.

So which is it?
posted by uncle harold at 1:55 AM on December 22, 2005

Yeah, the easiest solution is to just trot politicians lives out into public scrutiny 24/7. I fully support CSPAN's The Real World: Congress. :)
posted by jeffburdges at 3:00 AM on December 22, 2005

After plowing through the Katz decision, I'm puzzled about why heywood cites it. Or rather why he cites a lone dissent from it. After all, it's not dissents, but decisions, that make precedents, right?

Black's dissent is especially "wacky." First he quotes the Constitution saying the gov't can't rummage around on a fishing expedition but rather has to get a warrant "particularly describing" what they're after. So far, so good. Then he says, hey, they can't "describe" a phone call, so they can't get a warrant to seize (record) it. Great. No warrant, no seizure, right? But Black concludes the opposite: since they can't describe it and can't get a warrant, then they can seize it. Mighty strange reasoning.

It's wacky to read the logical contortions around this business, including silliness about whether the tap was inside or outside of the phone booth, whether the door to the booth was open or closed, etc. When did anyone last see a phone booth with a door, or a phone booth at all? This is what happens when you try to be a literalist about a document from centuries ago, be it Constitution or Bible or whatever. Doesn't work. You have to actually think at some point.
posted by clicktosubmit at 3:12 AM on December 22, 2005

amberglow, tell it to Rosa Parks, and the hundreds if not thousands of people who the SCOTUS has set free due to the invalidation of an unconstitutional statute that they had violated.

You make my point. Those laws were changed using the system. Rosa was arrested and charged. She broke the law that existed at the time. They were challenged in court, by her and many other people. And they went to Congress...

When Ms. Parks disobeyed the law, she knew she'd be punished. It was worth it to her and many many others to fight in many ways to get those laws thrown out or changed or abolished.

Now look at Bush and the Administration. They're stating they don't have to follow the laws or the Constitution, not that the existing laws are wrong. They're not even trying to get new laws passed allowing them to spy on us, nor are they using the existing FISA Act when they easily could.
posted by amberglow at 6:35 AM on December 22, 2005

Sen. John Cornyn: "None of your civil liberties matter much after you're dead."

Sen. Russ Feingold's retort: "Give me liberty or give me death."

There's nothing here to discuss. Hang the bastards who would be kings or claim the rights of kings. That is what our country was built on.
posted by nofundy at 7:29 AM on December 22, 2005

I have an idea. Why don't we make ourselves less of a target, rather than trading in our civil liberties and privacy so that an administration with an grudge can invade whoever they want whenever they want. Let's focus on having a positive reputation with the rest of the world and then we won't ahve to be worried about an attack.

I know, it's a crazy idea, but how many foreign attacks on the US happened before the Bush administration came to power? And how many massively multiplayer data collection schemes were in place to scrutinize every aspect of our lives all the time?

Whatever. Don't be an asshole, don't invite hate, let people live their lives in peace.
posted by BuffaloBandit at 8:00 AM on December 22, 2005

Frankly, I'm finding the "pro-terrorist" bent here somewhat tiring to argue against.

Wow, just wow, as they say.

I know you're not talking about this specific case (or so you claim) so how does this statement apply to what you claim you're speaking about? Where are the pro-terrorist arguments?

No one here is protesting the use of intelligence gathering whatsoever, nor the need for good security. However, illegal methods of gathering intelligence is, in itself, a clear breach of good security as it permits the strong possiblity of abuse.

If there is a pro-terrorist bent here, it's you.
posted by juiceCake at 8:20 AM on December 22, 2005

If there is a pro-terrorist bent here [...]

Quite right.

The POTUS and his lapdog AG Gonzales argued that the 9/14/01 resolution grants them the necessary authority -- to wit: "necessary and appropriate force" to fight terrorists.

Note the word "force".

He's the commander-in-chief, using the Defense Department (via it's subdepartment NSA) to fight terrorists using top secret, warrantless spying, right? That's the authority they've cited, correct? That's the jist of their argument?

Lemme see...

- "necessary and appropriate force" (granted by 9/14/01 resolution)
- "to fight terrorists" (also granted by 9/14/01)
- using a sub-department of the DoD (NSA)
- citing his authority as Commander-in-Chief of the Army and Navy (article 2, section 2 of US Constitution)

here's the rub...mindful of this authority they claim, and that their "force" is directed without judicial oversight:

AGAINST AMERICANS.

Since we're gonna play semantics about a "pro-terrorist" bent...please explain how Bush's actions, target, and rationale is distinguishable from Article 3, Section 3:

"Treason against the United States shall only consist in levying War against them [...]"

His argument is that in employing domestic spying without judicial oversight, he can do so by "constitutional authority" to command the DoD to use force against Americans.

Their words. Not mine.
posted by edverb at 9:28 AM on December 22, 2005

sorry...the above question is for Heywood Mogroot.

Care to tell us how their own actions and argument are distinguishable from treason as defined by the Constitution?
posted by edverb at 9:33 AM on December 22, 2005

Heywood, I have a hypothetical for you:

When a non-invasive thought scanning device is invented, do you think the 4ht amendment of the constitution protects you from having your mind read by government computers? The technology already exists in a very rudimentary form!
posted by batou_ at 10:09 AM on December 22, 2005

sorry for the busted link. It is:

http://www.newscientist.com/article.ns?id=dn7304
posted by batou_ at 10:10 AM on December 22, 2005

I know, it's a crazy idea, but how many foreign attacks on the US happened before the Bush administration came to power?

Oh, a few.

Don't get me wrong. I think George Bush is maybe the worst President in history, an immediate threat to the Constitution, and terrible for our foreign relations. But the idea that everybody in the world had the warm fuzzies for America until January 21, 2001 is a little silly. We've been global meddlers for a long, long time, and even if we were to wake up tomorrow with a sane and decent foreign policy, we'd still be feeling the effects for decades.
posted by EarBucket at 10:14 AM on December 22, 2005

First you insist on a stringent literal reading of the Constitution

I do no such thing. I'm fine with the current jurisprudence, I just find it interesting how the right to privacy of telecommunication magically appears from the right of privacy of communication within the home, which magically appeared from the right that one's person and personal effects may not be searched or seized without warrant attesting to probable cause.

And especially how Katz cites Silverman as establishing this right, when in fact it does absolutely no such thing (though see below about Douglas' concurrence).

Congress has to declare war. The president can't

The Afghanistan resolution was explicitly coordinated with the War Powers resolution, as was the Iraq resolution of 2002. Actual declarations ("a state of war exists...") is an extraconstitutional diplomatic formalism.

Congress didn't declare war.

Technically, I'm comfortable that the SCOTUS will agree that Congress sufficiently passed the war baton to the Executive via their twin war powers acts of 2001/2002.

I have talked to who support your view are at the same time deeply convinced that you can never give your handguns away - because it's a fundamental element of American freedom to be able to defend yourself against a potentially mischievous government.

Handguns are for personal protection against criminals, not 2nd-amendment rights. I find the idea of fighting the US Army with one's personal ordnance silly (cf Waco, 1993); any successful armed insurrection will come like the Civil War, with sufficient numbers of regular military defecting to the cause to produce a military stalement.

It's wacky to read the logical contortions around this business, including silliness about whether the tap was inside or outside of the phone booth, whether the door to the booth was open or closed, etc.

I agree. The jurisprudence prior to Katz was very wacky. William O Douglas, in a concurring opinion in Silverman, says:

My trouble with stare decisis in this field is that it leads us to a matching of cases on irrelevant facts. An electronic device on the outside wall of a house is a permissible invasion of privacy according to Goldman v. United States, 316 U.S. 129 , while an electronic device that penetrates the wall, as here, is not. Yet the invasion [365 U.S. 505, 513] of privacy is as great in one case as in the other. The concept of "an unauthorized physical penetration into the premises," on which the present decision rests, seems to me to be beside the point. Was not the wrong in both cases done when the intimacies of the home were tapped, recorded, or revealed?

And Douglas got it right. Douglas was also the one in Katz to say, "WTF about giving the admin rights to warrantless taps for national security purposes?". Looking over his entry in wikipedia, seems like quite an interesting guy.

But looking at the jurisprudence, the right to be secure in one's communications (eg satellite calls to Pakistan) is extended from the right to be secure in one's home. I'm not saying it's wrong to do this, just that Black has a point that this is reading words into the constitution that the founders did not put there. In the late 18th century both eavesdropping was a state power as was intercepting and reading mail. Neither was prohibited to the state (without a warrant showing probable cause) by the constitution as written.

They're stating they don't have to follow the laws or the Constitution,

I doubt they will make that claim. Gonzales says that should PATRIOT go away they will look at what tools and powers remain to the agencies under existing laws.

not that the existing laws are wrong.

The admin has subtle legalisms tthey can deploy, either to obfuscate or defend. One is that unwarranted surveillance of US citizens communicating with eg. Afghanistan is a war power enabled by Congress authorizing the President to fuck over Afghanistan. Two is that there is an inherent power to spy on civs regardless, construed from a more amorphous reading of the general executive power of Article II (I predict this would not fly very well).

They're not even trying to get new laws passed allowing them to spy on us, nor are they using the existing FISA Act when they easily could.

I disagree about FISA, should the NSA be collecting & indexing calls to MENA wholesale. Can't go to FISA getting retroactive warrants for 10M calls every day, nor is it even possible to know whether a citizen is having their rather non-existant right to privacy of overseas communications violated when these calls are captured.

Care to tell us how their own actions and argument are distinguishable from treason as defined by the Constitution?

treason is giving aid and comfort to the enemy. Abusing powers is not treason.

my "pro-terrorist" dig was a reaction at people afraid of the NSA (lawfully) using the tools at their disposal to intercept communications with foreign countries, not people disgusted with the Bushie actions here.

The Bush administration deserves to be impeached, hell just for the Jose Padilla case alone. They think 9/11 gave them a blank check to cut every corner and abuse any civil liberty they can, which is ironic since their own incompetence is a primary reason 9/11 happened. The best way to prevent more 9/11s was to remove these clowns from power last year, but unfortunately the people failed at this elemental decision.

My arguments here are just reminding people that Padilla is the one having his civil rights infringed right now. People who have had their calls intercepted without warrant have no standing to complain since they aren't being charged with anything, and if in fact their communications are hermetically sealed within the NSA then I don't see harm, though I would admit great unease that the NSA would be doing this without sufficient oversight to prevent the USG from using that wiretap intelligence like eg. Hoover did.
posted by Heywood Mogroot at 10:43 AM on December 22, 2005

do you think the 4ht amendment of the constitution protects you from having your mind read by government computers?

Yes, the most consistent reading is that the 4th gives us a bubble of privacy around our persons and domiciles, like I said above.

The courts have already ruled that this bubble does not extend fully into our vehicles, nor does it apparently extend to the security line at the airport, and I suspect it may not extend to communications to/from an enemy nation at a time of war.

There's this "reasonable" thing. It's reasonable for the Executive to want to surveil (not "seize") every call going to eg. Pakistan. Getting a warrant showing probable cause in this situation for every citizen's call caught in this dragnet is impossible, and it's still unclear to me that the intention of the 4th Amendment requires it. The jurisprudence of Katz and Kyllo is that we are secure in our homes from invasive "scans" and surveils, even if there is no physical penetration.

The court has been willing to reduce these protections the further away the surveilling is from the home. What these intercepts are doing is essentially surveilling in eg. Pakistan, capturing US citizens' communications there. This is a bit distant from one's home and I'm curious as to how the court will divide on this subject should it appear before them.
posted by Heywood Mogroot at 10:52 AM on December 22, 2005

Someone cannot be apriori under suspicion and subject to surveillance merely because the surveillance apparatus is otherwise innocuous. We can dance around what’s ‘legal’ all day. But that’s the issue. - Closer to Minority Report than 1984 I suppose.

And, lots of people are not clear on this:
The goal of national security intelligence is not to prevent a terrorist attack. The goal of any intelligence gathering is to give law enforcement data. That’s it. It is then up to the LEA to enforce the laws if they have reason to believe a law is, or may be, committed. Intelligence gathering officers sometimes do enforce laws, but that is not the SOP.
That’s the disconnect. There should be greater disconnects between analysis and gathering as well. But there is a definite division between intelligence and operations.
Of course, it looks like the trend is to eliminate that division. Which is truly dangerous.
You should be more afraid of your government with its trillion dollar apparatus capable of mass slaughter than a bunch of terrorists who kill by the handful
posted by Smedleyman at 11:54 AM on December 22, 2005

One day, everything we do will be monitored 24/7, but certain classes of data will be kept in a kind of privacy escrow. Law enforcement will have to get a warrant to actually review it. In theory. In practice there'll be any number of convenient loopholes and effectively permanent states of emergency that will let them review whatever they want. And unlike a search, you won't even know it's happening.
posted by George_Spiggott at 12:13 PM on December 22, 2005

Of course, it looks like the trend is to eliminate that division. Which is truly dangerous.

You should be more afraid of your government with its trillion dollar apparatus capable of mass slaughter than a bunch of terrorists who kill by the handful

posted by Smedleyman at 12:54 PM MST on December 22 [!]

Bang on.
posted by C.Batt at 12:29 PM on December 22, 2005

Bang on.

good luck with that logic when it's dirty bombs going off downtown.

Not that I believe AQ is that well-formed of a threat. They appear to be amateur-hour, really.
posted by Heywood Mogroot at 1:02 PM on December 22, 2005

“Handguns are for personal protection against criminals, not 2nd-amendment rights. I find the idea of fighting the US Army with one's personal ordnance silly (cf Waco, 1993)” -posted by Heywood Mogroot
Government employees can engage in criminal acts, therefore they can be the criminals you are protecting yourself against. And Waco was not a revolt. Put so much as a deer rifle in my hands and for many months I can raise seven different kinds of Hell in the state of Illinois. Years, if I have popular support. How many members of the RIRA are there? Think they lug around field artillery?
That said, I agree with you that there are far more productive (and less silly) means for redress of grievances then the “militia” mindset - and of course defection of military personnell would be much more likely to result in success.

“good luck with that logic when it's dirty bombs going off downtown.”
- posted by Heywood Mogroot

In that case the safest spot in the city is any building with panes of glass or at least some drywall. Hard to find I’m sure. Of course if you’re caught out in that you’ll get the eqivalent of 1/2 of a chest x-ray...granting of course the wind doesn’t blow it all away.

Your statement itself proves my point Heywood Mogroot. The “Dirty Bomb” thing was spread by the government. The only danger from a dirty bomb (as described as being potentially built by Padilla - as opposed to the ones planned by the Nazis, which had tons and tons of radioactive silica) - is from the stampede from terror that could result.
That the goverment did blow it off and tell people how harmless it is is proof as to how well they’re “protecting” us.

Communication and human intelligence work far better as protection then mechanized surveillance. Of course human beings are so unmanagable aren’t they? Even as operatives.
posted by Smedleyman at 1:16 PM on December 22, 2005

Given the current political climate, I should say - ESPECIALLY as operatives.
A lot of rank and file guys believe in truth, justice and the American way. If they wanted to just collect a pay check they’d be mercinaries or in advertising or something.
posted by Smedleyman at 1:18 PM on December 22, 2005

“That the goverment did blow it off and tell people how harmless it is is proof as to how well they’re “protecting” us.”

er...”didn’t just blow it off” should be.
posted by Smedleyman at 1:20 PM on December 22, 2005

Shorter Heywood: "Protect me Daddy Bush from that monster under the bed!"
posted by nofundy at 1:20 PM on December 22, 2005

Put so much as a deer rifle in my hands and for many months I can raise seven different kinds of Hell in the state of Illinois. Years, if I have popular support.

Funnily enough Smedleyman, you are one of the people included in this little comment of mine. Disturbing that...
posted by longbaugh at 1:42 PM on December 22, 2005

Giving up our rights for security isn't going to make us safe. What's the point of surrendering our privacy to a government who already had the knowledge to stop 9/11 but allowed it to happen through incompetence or design. Remember? "Bin Laden Determined to Strike within US"? The FBI agents begging their superiors to open an investigation into the people about to carry it out? Wesley Clark's vain attempts to get the administration to pay any heed to Al Queda?

What will make us safe is a transparent government that stops raping the third world of its resources, bombing their cities, and killing their women and children.
posted by cytherea at 1:47 PM on December 22, 2005

“Disturbing that...” - posted by longbaugh

Excepting, I assume, my integrity and willingness to die to prevent the harm of an innocent. Exepting that, yeah, I could make/aquire oodles of semtex and sneak it through airports, etc. I agree. Easy as pie.
I suspect I’d tear up infrastructure. I can’t imagine taking a civilian life deliberately. Bridges are very very easy. I could even collapse some on I-90 near O’Hare. That’d piss a lotta people off. It’d have to be at about 3 am though and well planned to avoid casualties.
*suspcious knock on the door*
Uh...I have to...go...uh...

Seriously though, things would have to be really, really bad and I’d need firsthand recon to know it. But even then it’d be a dynamic war. There’s not a chance I’d harm Joe six pack (unless I went nuts).
Which I suppose is what makes someone an actual danger. The willingness to cede to that kind of madness. Lots of terrorists are just hollow inside. Nothing but the rhetoric, like most fanatics. Makes ‘em easier to kill though, which is what I suspect they want anyway.
posted by Smedleyman at 3:22 PM on December 22, 2005

...which brings us back to that point about machines and controllability.
posted by Smedleyman at 3:24 PM on December 22, 2005

Put so much as a deer rifle in my hands and for many months I can raise seven different kinds of Hell in the state of Illinois.

But that's not going to affect anything. USG puts a $10,000,000 bounty on your head, and the show's over soon enough.

"Protect me Daddy Bush from that monster under the bed!"

More like protect me Executive Branch via Congressional authorizations and Judicial oversight from all enemies, foreign and domestic.

What will make us safe is a transparent government that stops raping the third world of its resources, bombing their cities, and killing their women and children.

I agree with that, though its the transnationals raping the world, the USG is just on their payroll.
posted by Heywood Mogroot at 4:03 PM on December 22, 2005

Dictatorships do not make anyone safer from terrorism nor do totalitarian monarchies.

Give it up with the claim that what has been done is legal and correct. Such are the claims of cowards afraid of their own shadows.
By your logic Stalin and Mao would surely have had the safest populaces in the history of the world and North Korea would be paradise today.
In common street venacular, this shit ain't right man!
posted by nofundy at 4:36 PM on December 22, 2005

Give it up with the claim that what has been done is legal and correct

Not my claim! I'm just saying Congress has the right to invest in the executive authority to maintain the public safety, proportional to the present risk.

Eg. if some weird communicable virus was going around we'd lose a lot of civil liberties during the emergency, like the freedom to associate and the freedom to travel.

From what I gather, Bush needed to go to Congress to get their sign-off on surveiling US Citizens, given present jurisprudence wrt the 4th's guarantee of expected privacies.

If we as citizens find these public safety measures too onerous, we can take our case to the courts, and, failing that, to the streets, and, failing that, to another, saner, country.
posted by Heywood Mogroot at 5:39 PM on December 22, 2005

oh, in my last para, insert "to the ballot box" at the start of that list of remedies.
posted by Heywood Mogroot at 5:40 PM on December 22, 2005

"'The Bush administration's argument that post-9/11 actions taken by Congress ... gave the president power to eavesdrop electronically on U.S. persons without even a FISA warrant seems to me a most implausible stretch,' Harvard Law Professor [and Constitutional Law scholar] Laurence Tribe said. Even a congressional resolution, he said, would 'violate the Fourth Amendment ban on unreasonable searches and seizures.'

....[Gen. Michael Hayden] and [Attorney General Alberto] Gonzales said it was essential to bypass the legal requirements to obtain secret court warrants for such operations because they had to move quickly to stop terrorist threats.

But they struggled to explain why the administration could not have relied on FISA provisions that allow surveillance to be conducted and a warrant obtained after the fact in emergencies."

[USA Today | December 22, 2005]
posted by ericb at 7:36 PM on December 22, 2005

Responding to this, from another thread...

"You were walloped repeatedly and you just kept coming back with various insipid bleatings about various theoretical abstract arguments no one was making"

I was responding to the assertion that once Congress passes a law, the Executive cannot break it with impunity:

"The real issue is whether the President can break the law with impunity."

Technically, no statute is "The Law" if it is unconstitutional.
I can find the John Marshall decision if you want.

Congress does not have the mandate to usurp the Executive's role as Commander in Chief.

That's the hypothetical I was exploring, that's all. I'm not saying having the NSA wiretap citizens is an inherent power of the Executive. OK?
posted by Heywood Mogroot at 8:07 PM on December 22, 2005

Okay, so we're in a "War on Terror". How long will that last? As long as there's terror in the world to fight against, I guess. How long will that be? As long as there are human beings in the world who want to hate and kill for it, probably. So we're effectively in a perpetual, eternal state of "war", according to this Administration.

The Administration and its apologists argue that, during a state of war, the President has the authority to abridge any law restricting his authority if the argument is being made that it's for national security. Basically, if a law stipulates any constraint on Presidential authority, all the President has to do is to make the claim that it is a national security issue and, because we're in a state of war, he gets the benefit of the doubt and can override the law.

So, a question: does the declaration of a perpetual State of War + the claim of Presidential Supremacy during wartime functionally equate to a de facto autocracy?

Can the President override posse comitatus because we're at war? Can he commit warrantless searches and seizures because we're at war? Can he lie under oath to Congress or to a Grand Jury? Can he call for the assassination of Congressmen who might be opposing the Patriot Act, or Judges that might rule against him in the Padilla case, because they threaten his conduct of the "war".

These latter questions are rhetorical. Each of these hypotheticals would represent a clear violation of a law. But if the President made the case for supreme powers because we're at war, how would one argue against that, if one has already allowed the President to get away with breaking the FISA law?

Isn't it odd...the President broke a law and confessed to it to the whole world...yet here we are in the blogosphere debating points of the Constitution. Those points are good points to consider, but they certainly should be addressed in

1. A finding of fact as to whether the law was actually broken (i.e., in a straightforward impeachment process), and

2. A review of whether the FISA law is unconstitutional (in the Supreme court) given Article II.

The idea that our country WOULDN'T dig, dig, dig at this issue until these two points were resolved is unthinkable to me. How in the world can you move forward without this kind of finding of fact and subsequent jurisprudential review?
posted by darkstar at 4:47 AM on December 23, 2005

Here's the latest development.
It effectively shoots down all the Bushistas arguments that the spy activity was granted by Congress. Looks like we have a crime that can't be spun by the "liberal media" to make Dubya look heroic. An excerpt:

"Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote. "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."

Daschle wrote that Congress also rejected draft language from the White House that would have authorized the use of force to "deter and pre-empt any future acts of terrorism or aggression against the United States," not only against those responsible for the Sept. 11 attacks.

Time for impeachment proceedings?
posted by nofundy at 5:35 AM on December 23, 2005

Addendum: Maybe it is time for impeachment proceedings.

If only our Congress actually represented the overwhelming majority of the people instead of the wealthy and corporate interests!

Do you believe President Bush's actions justify impeachment? * 126050 responses
Yes, between the secret spying, the deceptions leading to war and more, there is plenty to justify putting him on trial.
85%
No, like any president, he has made a few missteps, but nothing approaching "high crimes and misdemeanors."
5%
No, the man has done absolutely nothing wrong. Impeachment would just be a political lynching.
8%
I don't know.
2%
posted by nofundy at 7:19 AM on December 23, 2005

That poll will probably change considerably once the LGF / King George set gets wind of it.
posted by Skygazer at 8:39 AM on December 23, 2005

“But that's not going to affect anything. USG puts a $10,000,000 bounty on your head, and the show's over soon enough.”
- posted by Heywood Mogroot

Yeah. I suppose I’d be easier to eliminate being that I look like every other Joe Suburbanite (except for maybe being well trained).
Y’know, as opposed to being a 6’5” Arab on kidney dialysis.
Did we ever get him by the way?
We got Che Guvera pretty quick though, and very soon now we’ll get his buddy, whats-his-name, y’know, baseball player, making trouble in Cuba. Castro? Yeah, any time now.
Like I couldn’t get papers tooled or fake my own death or set up a mystique or know how to create comraderie and bind people to a cause or have a number of different people pretend to be whatever identity I’ve set up like “Jean Moulin” or “Michael Davitt.”
The $10 mill bounty would only validate how cool I am to many people. That said, I do have enough money to live comfortably, converted to liquid it’s not a small lump.
And hell, what makes you think I’m not preparing for it already?

Everyone needs a hobby.

That said, I truly do not believe this will end well. How - granting that voting in Democrats will somehow “save” the country - will we turn the clock back?
This ball is already in play. There are a lot of powers that have been granted to the Fed and the POTUS (and Clinton expanded those as well) and I don’t see them repealing them.
I’m hoping this will end with a ride back to some sort of easing of internal tensions and changes in foreign policy. It would take a strong concerted effort though, and I don’t see that happening.
I’m not saying some very strong personality (Lincoln, Caesar, Alexander - what have you) won’t show up and drive the country and the world away from the present course, but that’s not something one can predict or rely on.
There’s a lot of work to do, and people are arguing about what the problems are - what “is” is.

What we need is a breakthrough. A new system of cooperation. A whole new language of it and a strong guiding philosophy. (Telepathy would be nice)

If I were Veidt I’d drop my big alien monster on New York about now.
posted by Smedleyman at 9:48 AM on December 23, 2005

Ooooh. 10 million bonus points for the Watchmen reference.
posted by longbaugh at 10:00 AM on December 23, 2005

I'd like to congratulate Heywood for spinning his arguments so furiously that I have no fucking idea what he's talking about anymore. It's all just a big blur. I've read the whole thread and he's like Bigfoot walking into the forest.

Just as an aside, doesn't a law have to be declared unconstitutional by the judicial branch before it, you know, becomes unconstitutional? I thought that was part of the whole, er, checks and balances thing. You can't just decide a law is unconstitutional and blow it off.

I could be wrong. I haven't had civics since high school and I'm no constitutional lawyer.
posted by quantumetric at 10:34 AM on December 23, 2005

Power We Didn't Grant

"As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance."

-- former Senator Tom Daschle

posted by ericb at 12:25 PM on December 23, 2005

Monitoring of Muslims Done Without Search Warrants

"In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program. Some participants were threatened with loss of their jobs when they questioned the legality of the operation, according to these accounts." [U.S. News & World Report | December 22, 2005]

posted by ericb at 12:30 PM on December 23, 2005

"Does monitoring radiation levels constitute a 'search' that requires a warrant?

From Justice Scalia in U.S. v. Kyllo:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." [source]

posted by ericb at 12:33 PM on December 23, 2005

For more on the radiation surveillance, there's a thread on that here.

Dang, it's hard keeping these surveillance program scandals straight, anymore.
posted by darkstar at 3:33 PM on December 23, 2005

i just want my 4th ammendment back.
posted by Doorstop at 6:08 PM on December 23, 2005

NYT: The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.
The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.
As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain back-door access to streams of domestic and international communications, the officials said. ...
posted by amberglow at 7:27 PM on December 23, 2005

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