King George's Constitution

In early 2002, President Bush secretly authorized the National Security Agency to monitor international telephone calls and international email messages without any showing of probable cause to believe that a participant in the communication was involved in unlawful or terrorist activity and without requiring a search warrant from a court of law. This action was a direct violation of federal law and the United States Constitution.

The Fourth Amendment ordinarily prohibits any search, which includes interception of telephone and email messages, without probable cause and a judicial warrant. (The “ordinarily” refers to some very narrow exceptions, inapplicable here, for unintrusive searches and for situations where officer safety or the need to act instantly justifies a departure from the usual requirements.) Each of these requirements - probable cause and a judicial warrant - plays a critical role in our constitutional scheme. Expansive government surveillance of a nation's citizens (think 1984 or of the Soviet Union) can undermine privacy, autonomy, independence, spontaneity, openness, dissent, and the general sense of freedom that is essential to a self-governing society. And, of course, surveillance is a powerful tool with which to suppress political opposition. The Framers of the Constitution clearly understood these dangers and therefore sharply limited the circumstances in which the government could intrude on individual privacy.

Moreover, even when the government believes there is probable cause, which is not required by Bush's unlawful scheme, there is the critical question of who decides whether there is probable cause in any given situation. Because executive branch officials are naturally focused on zealous law enforcement, they will inevitably construe “probable cause” too generously. and find it too quickly. For this reason, the Framers required a court order, reflecting an independent judgment by a separate branch of the government, to determine whether probable cause exists. For King George to take this authority entirely into the hands of the executive branch is a flagrant violation of the Fourth Amendment.

Of course, President Bush is not the first president to engage in unlawful and unconstitutional surveillance of American citizens. During World War I, Woodrow Wilson secretly authorized J. Edgar Hoover’s Bureau of Investigation to run hog-wild, creating files on thousands of law-abiding American citizens. When this came to light, Attorney General Harlan Fiske Stone ordered an end to such practices: “A secret police may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly understood.”

Half-a-century later, Lyndon Johnson authorized the National Security Agency -- the very same National Security Agency -- to intercept the international telephone communications of American citizens to determine if they were acting in cahoots with the Communists. Because this program was clearly illegal, NSA devised separate filing systems for these intercepts and fraudulently classified the records “Top Secret.” To avoid public accountability, NSA directed those in charge of the program “to restrict the knowledge that such information is being collected.”

Richard Nixon expanded these programs dramatically, drawing in a host of government agencies, including the Internal Revenue Service, the FBI, Army Intelligence, and the Central Intelligence Agency. The Nixon administration ordered the CIA, for example, to undertake domestic surveillance. Eventually, 300,000 names were indexed in the CIA’s computers. The Agency was fully aware of the illegality of these activities. In passing one report on to the White House, CIA Director Richard Helms noted “this is an area not within the charter of this Agency, so I need not emphasize how extremely sensitive this makes the paper.” When these unlawful activities finally came to light in 1974, the Los Angeles Times expressed its concern that “the nation was headed toward a police state.” Ultimately, Congress, the courts, and the electorate brought about a public reckoning, culminating in Watergate and the enactment of even stronger safeguards against unconstitutional surveillance by NSA, the CIA, the FBI, and Army Intelligence.

Despite this history, Mr. Bush has the audacity to assert that his authorization of NSA surveillance of American citizens on American soil is “lawful.” It is not. It is a blatant and arrogant violation of American law. If Mr. Bush wanted the authority to undertake such activities, he should have gone to Congress and sought authorization, out in the open. He did not follow this course, both because it would not have been granted and because it would have warned the evil-doers that we were monitoring their communications. Give me a break! Bush apparently believes that the evil-doers assume we act within the bounds of our own Constitution. So, we’ll trick them. We won’t. Now, there's a wise theory of government for you!

As in so many areas, Mr. Bush believes that whatever he thinks is necessary must be lawful, whether it be domestic surveillance by NSA, or torture, or denying the Guantanamo Bay detainees both the protections of the Geneva Convention and the writ of habeas corpus, or disregarding the United Nations Security Council, or his unconscionable detentions of American citizens, like Hamdi and Padilla. As in so many areas, Mr. Bush believes that whatever he thinks is necessary must be lawful. King George is a man of action, not of thought; he is a man of faith, not of law. This is a serious and growing problem for this nation.

Comments

[Alan Meese]

Let me explain why I believe that Professor Stone, for whom I have enormous regard, is incorrect on this one. Let me also note that, if I am off base, Professor Stone is partly to blame because: 1) I took a Constitutional Decisionmaking Seminar from Professor Stone at the U of C (I received an A) and 2) I used Professor Stone's casebook as a student in Constitutional Law III (Sunstein) there as well. :)

1) By a September 14 resolution, Congress has authorized the use of "all necessary and appropriate force" against the organization that perpetrated the September 11 attacks, an organization that is still active.

2) That same resolution recognized that the "President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."

3) In implementing Congress's authorization of military operations, the President is functioning as the Commander-in-Chief of the Armed Forces. The Commander-in-Chief power is conferred by the Constitution, and not by Congress. Congress cannot strip the President of this power.

4) The Commander-in-Chief power includes the power to initiate offensive and defensive military actions against the foe designated by Congress. Such operations by necessity require the Commander-in-Chief to gather actionable intelligence.

5) Congress could not by ordinary legislation abrogate the President's Commander-in-Chief power or assign it to other actors, even judges. For instance, after declaring War against Japan in 1941, Congress could not require the President to obtain a warrant before bombing the enemy or shooting down enemy warplanes. Nor could Congress require the President to obtain a warrant before intercepting the enemy's battlefield communications, even if the battelfield was on American soil, as it was after the Japanese invaded Alaska in 1942.

6) The President does not lose his power as Commander-in-Chief if the enemy allies itself with residents of the United States. If, during WWII, residents of Alaska were sending radio signals to Japanese intelligence officers, Congress could not require the President to obtain a warrant before listening to those communications. In the same way, if a US resident with known ties to Al Qaeda is making a phone call to Mullah Omar's number in Afghanistan, Congress may not require the President to obtain a warrant before listening in.

7) In 2002, the FISA Court of Appeals itself said that the President has the inherent authority to conduct warrantless searches and that Congress could not abridge that authority. That language was dicta, however. It's my understanding that other appellate courts have reached similar conclusion, i.e., that the President possesses such inherent power as Commander-in-Chief.

8) It seems to me that those who take the contrary position must also argue that Congress may tell the President whom to appoint as head of the joint chiefs, tell the President how to evaluate his military commanders, tell the President whom to appoint to be Secretary of Commerce, tell the President he cannot veto a bill, etc. Such a position makes Congress supreme, contrary to the text and structure of the Constitution.

9) Let me close with a quote from Joseph Story about the Commander-in-Chief power.

"Of all the cases and concerns of government, the direction of war most peculiarly demands those qualities, which distinguish the exercise of power by a single hand. Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power."

Allowing Congress to tell the President how to conduct military operations contravenes the framers' vision of "Unity of plan, promptitude, activity, and decision."

[Alan Meese]

1) Let me now explain why Professor Stone's interpretation of the 4th Amendment contraves the text of the Constitution as well as governing Supreme Court caselaw:

2) Professor Stone states as follows:

"The Fourth Amendment ordinarily prohibits any search, which includes interception of telephone and email messages, without probable cause and a judicial warrant. (The “ordinarily” refers to some very narrow exceptions, inapplicable here, for unintrusive searches and for situations where officer safety or the need to act instantly justifies a departure from the usual requirements.)"

3) This is not correct, in my opinion.

4) First, the text of the Amendment merely forbids unreasonable seizures and searches. It does not purport to require warrants. Instead, it simply provides that, if an officer seeks to obtain a warrant, he must demonstrate probable cause to obtain one. Thus the amendment regulates the issuance of warrants, but it does not require them.

5) Here it's helpful to recount the history behind the warrant clause. The ordinary remedy for an unreasonable search would be a trespass action, brought before a jury in state court. (Recall that the 1789 constitution did not require the creation of lower federal courts. Plus, an action against a federal officer might not meet the diversity of citizenship test for federal jurisdiction if there were federal courts.) By limiting the availability of warrants, the clause prevented Congress from thereby immunizing federal officers from trespass actions in state court. And, a federal officer who could not obtain a warrant would then have to "take his chances" before a local jury, which would be the final word on "reasonableness."

6) What though about current law? Hasn't the Supreme Court ignored the text and said that officers "ordinarily" must obtain a warrant supported by probable cause? Not really. Take the classic seizure, an arrest for a felony. So long as an officer has probable cause, he need not obtain a warrant to arrest a felon, even if the felon is unconscious and the officer can obtain a warrant in 1 minute by telephone. Ditto for an arrest of someone who commits a misdemeanor in the presence of the officer. (As, for instance, when a police officer pulls one over for reckless driving and arrests one "on the spot," even though he could easily obtain a telephonic warrant.) In other words, the vast majority of seizures need not be supported by a warrant under current law. Indeed, some seizures may take place even without probable cause, although these must be brief, i.e., 1 hour.

Ditto for a search of the felon incident to arrest, the search of a car, the search of a container in a car, the inventory search of a car that is impounded (which may take place with no probable cause), an administrative search of certain businesses, etc. As I understand things, depending how you count, there are two dozen "exceptions" to the warrant requirement, though in fact it seems like the exceptions swallow the rule. Plus, these exceptions apply even if the police could very easily obtain a warrant, e.g., even if the car is immobilized.

7) Finally, and most pertinently, so far as I know, the Supreme Court has never held that the President, Acting as Commander-in-Chief, must obtain a warrant before intercepting communications between a US resident and an enemy with whom we are at war. In fact, the Court has expressly reserved the question.

8) But, to reiterate, the question whether the President's searches violated the 4th Amendment would be answered simply by asking if the search is reasonable, and not by applying some extra-constitutional presumption that a warrant must be involved.

[ekf]

Alan, your arguments above indicate that President Bush's authority is limitless. He could, by your arguments above, intern Arab-Americans in camps, asserting that some of them may have "connections" (whatever that means) with Al Queda.

He could also, by your arguments above, secretly enter the homes of U.S. citizens whom he believed to be in cahoots with Al Queda and murder them with his bare hands -- and never tell the American people about it. He'd be making the country safer, of course, by getting rid of these terrorists (and, by doing it in secret, he would not tip his hand that, in fact, the President was acting as Commander in Chief by engaging in his vigilantism, making us all even safer!). After all, if the 4th amendment protections are meaningless, why should the 5th amendment deprivations be an issue? As long as he told members of Congress that he'd bumped off a few dozen terrorists, would that be enough? Would that be warranted by the AUMF, since as CIC he's military and they authorized military force? Why can't he be judge, jury and executioner, and all in secret to boot? Are there any lines that can be drawn, and, if so, how? and who can draw them?

It's also a bit much to compare the authority granted by the formal declaration of war situation in WWII and the AUMF, which at the very least does not target a state actor (among other more technical differences, the nature of which have been documented elsewhere, e.g., in the convenient blogosphere). The executive has been granted expansive powers, to be sure, but we are not, despite the political claims, technically "at war." Comparisons to wartime authorities do not ring as true as supporters of the Bush excesses would like to claim for that very reason, and it is more prudent to examine the text of the authority granted than to extrapolate to it being kinda like a war and going hog wild with the wartime allusions (as the Bush administration and its supporters are so wont to do).

And while I could go point by point, I will restrict myself to one specific criticism: point 6 of your first post is a both false and misleading. If Mullah Omar was indeed engaging in a wiretap-able conversation, no warrant would be required *before* the NSA could listen in under the current FISA restrictions. The issue is not whether they could listen in -- they clearly could do so -- the issue is whether, after having begun the listening process, they embark on obtaining the FISA warrant within 72 hours after beginning such surveillance. Framing the issue as one of speed and necessity, as President Bush and his apologists continue to do, ignores how wildly advantageous FISA already was to the NSA's ability to conduct surveillance and, because of such an advantageous situation, how egregious this slight of the FISA court's authority is on the part of the NSA and the Bush administration.

[Alan Meese]

EKF:

1) I'm not sure why my argument --- that the Commander-in-Chief may gather intelligence as part of authorized military operations --- justifies "interning Arab-Americans in camps." How is rounding civilians up based solely on their race part of the Commander-in-Chief power? How is it connected to military operations?

If it is connected to military operations, why does my formulation of the Commander-in-Chief power lead to such internments any more than any other formulation of that power? Any power can be abused or exceeded. The possibility of abuse is no argument against the existence of a power. A judge could tomorrow issue an injunction requiring all Arab-Americans to report to camps. Does this mean we should abolish judges?

2) Nothing in my post suggested that the Fourth Amendment does not apply. But, as shown in my subsequent post, the 4th Amendment test is reasonableness. Given the gravity of the threat posed, what the President is doing seems reasonable.

3) As for murdering a civilian with bare hands, that would exceed the scope of the power to conduct military operations. And, again, it's not clear why my formulation of the Commander-in-Chief power leads to such murder any more than any other formulation. Any formulation is subject to the hypothetical in which the President imagines that someone is an enemy and kills them.

4) I don't see how a declaration of war increases the President's power as Commander-in-Chief when compared to an authorization to invade another country or authorization to use force against a foe that is invading us. I have never understood that argument. Either the President is authorized to act as Commander-in-Chief as against a particular foe or he is not. In my mind, there is no such thing as "Commander-in-Chief lite" or "kind of Commander-in-Chief." If Congress had declared war in 1991 against Iraq, what additional powers would President Bush have possessed AS COMMANDER IN CHIEF that he did not possess and exercise then. This is why I used the example of a Chinese submarine in the (undeclared/unauthorized) Korean War. If we assume that Congress had authorized it, then the case for the wiretap becomes even stronger, since the President actually had the authority to act as Commander-in-Chief.

I DO understand the argument that the only way to authorize force is to Declare War, i.e., that Congress may not delegate the authority to make war or its equivalent. (Bring back the non-delegation doctrine!) But you seem to be making a different argument, that is, an argument that assumes the ability of Congress to authorize force short of declaring war.

4) As for Number 6, I don't know whether current FISA standards WOULD allow for the issuance of a warrant based simply on a phone call to Mullah Omar. (What about a phone call to Afghanistan?) Maybe they would, but that's beside the point, or at least it seems so to me. The fact that current FISA standards would allow a warrant in one hypo does not support Professor Stone's apparent argument that Congress may criminlize the President's reasonable efforts to gather intelligence as part of authorized military operations against a foe Congress has identified. The reductio of Professor Stone's argument, although I stress that he has not said this, seems to be that Congress could require heightened warrant standards in this context, e.g., require "clear and convincing evidence" that someone is treating with/supporting the enemy before a warrant would issue. The only barrier to this sort of heightened standard would be the Commander-in-Chief power.

5) Are you arguing that there is no Commander-in-Chief power? If so, how do you define it? Can Congress abrogate it entirely, even after authorizing military operations? If not, how does your formulation avoid the parade of horribles you attribute to mine?

[George Liebmann]

The FISA Court of Appeals case relied on by the first commentator (and by the Wall Street Journal in its deplorable editorial yesterday) itself recognizes that the "Supreme Court has never considered the constitutionality of warrantless government searches for foreign intelligence reasons." The Truong case relied on by the Sealed Case and the Journal editorial is a 1980 Fourth Circuit case. In 2000, the Fourth Circuit, per Judge Luttig, in United States v. Squillante, accurately stated that the FISA act, which the Administration has now chosen to ignore, was designed to address "a troubling constitutional issue regarding the President's inherent power...that had not been definitively answered by the Supreme Court." That statute does not require advance approval, but immediate reporting, and retrospective approval or disapproval within 72 hours. Clearly, in light of Justice Jackson's tripartite analysis in Youngstown, the explicit statute, designed to resolve a previously unresolved issue, leaves claims of inherent presiudential power at their weakest. In upholding the President's power as Commander in chief in the matter of security clearances, the court noted that this applies "unless Congress specifically has provided otherwise" (Department of the Navy v. Egan, 484 U.S.518.) In American Foreign Service v. Garfinkel, 490 U.S.153, the Supreme Court vacated an opinion expansively recognizing presidential military powers vis-a-vis Congress, stating that it would not decide this question unless it had no alternative to doing so.

Some continue to believe with Justice Jackson that "with all its defects, delays and inconveniences, men have discovered no technique for long preserving free government, except that the Executive be under the law, and that the law be made by parliamentary deliberations." It was also Jackson (along with Justices Frankfurter and Roberts) who warned us that "Evil men are rarely given power, they take it over from better men to whom it had been entrusted". He had in mind the snowballing use and abuse of emergency powers by Ebert, Bruning, and Von Papen.

The idea that terrorists are "alerted" by now knowing that they may be wiretapped by unauthorized act of the executive as well as by authorized but secret acts of the Intelligence Court is absurd. Equally absurd is the idea that the executive was given "the largest measure of constitutional authority on national security," that the commander in chief power was intended to give the president substantially absolute powers over the military and national defense.The framers sought to prevent the creation on American soil of the dictatorship of the Earl of Stafford based on a standing army. This inspired among other things restrictions on the duration of military appropriations, the militia clauses, the power of Congress to declare war, suspend the writ of habeas corpus, and confirm military officers and its power to make rules governing the military and later the Bill of Rights, including the Second, Third, and Fourth Amendments. The Commander in Chief power does not trump all these limitations, including Congress' power to make rules, which was designed, as the Federal Convention debates make very clear, to prevent the President from 'new modelling" the armed forces. This concern works against an interpretation which would make those carrying out national defense interceptions the President's personal creatures, not subject to limitation by enacted rules.

--

[PantsB]

1) I'm not sure why my argument --- that the Commander-in-Chief may gather intelligence as part of authorized military operations --- justifies "interning Arab-Americans in camps." How is rounding civilians up based solely on their race part of the Commander-in-Chief power? How is it connected to military operations?
>>>
The justification was made in WWII with Japanese-Americans. In reality, it is no more connected than wiretapping US citizens in express violation of federal law.

And lets say that it isn't connected. Under your logic, who could challenege these actions? You said
>>>>
Allowing Congress to tell the President how to conduct military operations contravenes the framers' vision of "Unity of plan, promptitude, activity, and decision."
>>>>
Leaving aside that nothing of modern military actions of the US resembles the Founder's intent in that area (their strong opposition to a standing army, foreign alliances, foreign/optional wars, military action without express declaration by Congress, etc), your argument doesn't stand up.

If we say that PotUS can violate US law and even the Constitution in order to conduct military actions, no line can be drawn. Congress can not pass a law to restrict this. Releasing the information, for instance to the SCOTUS, can be blocked. The AUMF did not transform the Presidency to a Roman Dictatorship (nor does a declaration of war).

[Lincoln Madison]

The President's commander-in-chief power is not absolute. The final sentence of Article I, Section 8, provides Congress with the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Unambiguously, the Congress has the Constitutional power to regulate the President's conduct as CIC.

[Alan Meese]

In my view, PantsB's arguments and Lincoln Madison's arguments for unbridled legislative supremacy fail.

1) The President's power would be at its weakest if Congress repealed the AUMF, over the President's veto. In that case, the President would be claiming an inherent power in peacetime. That hasn't happened here, where the President claims to exercise the Commander-in-Chief power after a Congressional Declaration of hostilities. But, even if the President's claim of power is at its weakest (which it is not), that does not mean that the claim of power fails. Presumably the Founders gave the President his various enumerated powers so he could exercise them, even when Congress might disagree. Allowing Congress to remove those powers by "regulating" them would make one wonder why the Founders bothered to enumerate these powers at all. Why not, instead, just say "The President shall possess those powers that Congress chooses to confer on him." But, of course, that's not what Article II says. Not even close.

2) If Congress can, in fact, make the exercise of a President's enumerated powers a criminal act, then presumably they could also make it a criminal act to veto a certain bill. Imagine a Republican Congress and a Republican President, who pass and sign a law making it a felony for a President to veto a tax cut. That's just a "regulation" of the President's veto power, right? Or what about a law that makes it a felony for the Secretary of the Treasury to pay the President's salary. Again, just a regulation! Would the President have to dutifully order the indictment of said Secretary? Of course not. One can multiply examples.

2) Justice Jackson notwithstanding, it is impossible to control all the actions of the Executive by fixed rule in advance; some discretion is necessary. Discretion does not render a government official a Roman Dictator. The President has any number of forms of unreviewable discretion, including the discretion to remove officers, veto bills, decline to enforce laws he believes to be unconstitutional, recognize/derecognize foreign governments, negotiate treaties or executive agreements (or decline to negotiate them), decline to defend the nation in case of attack, pardon treasonous murderers, etc. Each of these forms of discretion could be abused in a manner that does great harm to the country --- far greater than the sort of discretion we are talking about here. But, the Founders gave the President these various powers nonetheless And, as Joseph Story said in Martin v. Hunter's L., the fact that a power can be abused is no argument against it.

3) The Text of the Necessary and Proper Clause does not support the gambit for legislative supremacy. The Clause allows Congress to pass laws that assist the President in carrying his powers into execution. That is, it empowers Congress to pass statutes that facilitate the exercise of executive power. It does not purport to empower Congress to diminish or take away the President's powers. Such a law might be "necessary" to some object, but it would not be "proper."

4) If the Legislature really is Supreme vis a vis the President, why stop there? Why not really on the Necessary and Proper Clause to render it Supreme vis a vis the Supreme Court? Why not allow Congress to pass laws "regulating" the Court's decisions, in the same way you want Congress to "regulate" the President's exercise of his Commander-in-Chief power? But, of course, the Supreme has said Congress can't do that --- even if the statute is an otherwise valid exercise of one of Congress's enumerated powers. Such a law is not "proper." See Plaut v. Spendthrift Farms; Heyburn's case.

5) The fact that someone cannot challenge the President's actions, again, is not an argument against the power I am surmising. There are lots of Presidential actions/inactions that cannot be challenged, or for that matter, legislative actions and inactions, that cannot be challenged.

I hope I have not missed or misconstrued either set of arguments, but I am running late.

Happy Holidays.

[Avian]

Alan,

>>1) I'm not sure why my argument --- that the Commander-in-Chief may gather intelligence as part of authorized military operations --- justifies "interning Arab-Americans in camps." How is rounding civilians up based solely on their race part of the Commander-in-Chief power? How is it connected to military operations?>>

I'll throw out a real-world example -- one that may not seem to apply directly to your argument at first glance.

All that would take is the designation of any number of people, U.S. citizens or not, as enemy combatants by the PotUS. No criteria are required. They are not entitled to constitutional protections, as we have seen in Padilla. No review is necessary. They instantly become part of the military justice system, and under the blanket of military operations. Multiply Padilla many times, and you have something most probably worse than camps.

But this is another real world application of this administration's intepretation of expanded powers given by the few phrases

"all necessary and appropriate force" and

"President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."

If congress cannot pass laws that limit the President's enumerated powers, can Congress give powers that did not previously exist to the President? Powers enough to justify ignoring existing laws that expicitly outlaw specific activity?

If Congrses can give these "mystery powers" (by telepathy, ones supposes, since they do not exist in the resolution in this case), are these phrases specific enough to justify such drastic new powers? Does the language refer to these types of powers, or do they refer to something else entirely when taken into context? What powers are they exactly? Are these new powers limitless, save the actual text of the constitution itself? If not, why not?

The language in AUMF is as meaninglessly vague as it is meaningfully vague in your argument.

To characterize your argument as only applying to "gather[ing] military intelligence" under the AUMF's language is myopic. You cannot argue for opening pandora's box, and then insist that only purple butterfiles will emerge. When examining this at any level (even an argumentative one), you must put on a wider lens.

Apologies if you've covered this above.

[Patrick]

The constitution declares itself to be "the highest law in the land". Thus, George Bush does not have the power nor authority to overide the constitution in terms of Americans civil rights which are guarranteed before the constitution.

I personally agree with Avian, above regarding padilla, etc. However, I do recognize the need for enemy combatants to be held. The only thing that I want is that there is to be oversight by congress, NOT BY THE MILITARY OR THE WHITE HOUSE, which totally defeats the purpose of oversight.

Clearly, Padilla's civil rights and other americans in guantanamo bay are being broken and millions of other americans. There is Massive data mining efforts by the NSA, etc.

I also am wondering, the very same people ho tapped off the NY times were NSA officials "worried" about constitutional authority. Don't you agree that it is worrisome that the same officials of the same agency that is spying on americans are worried about civil rights, especially since we have no clue as how "limited" the spying is. I tend to worry over unlimited spying with absolutely no oversight because if there is one thing about history, it teaches us about the future. - Never forget George Santayana's words "if we forget history, we are doomed to repeat it" (albiet paraphrased).

As for me, if I want to move to a state where there is ulimited spying, and generally no civil rights for any citizens, THEN I'll move to russia, ok?

[Patrick]

This is in response to Alan's response on point # 6. Under FISA, even though obtaining a warrant is retroactive for 72 hours, they must still contact a federal judge and obtain verbal permission to go forth with the wiretap. Then they have 72 hours to submit the paperwork. What if a known terrorist overseas makes a phone call to someone that is unknown to the CIA/FBI/NSA? If they have to get the judge's verbal 'okay', the conversation may be over before they can intercept it. This is an inadequate system that doesn't achieve results.

1). There are a lot of American citizens that the NSA can't even request warrants for because they don't even know who they are. This is one of reason why it is necessary to intercept any/all communications that go to/from known terrorist locations overseas. It is impossible to get the verbal 'okay' from a judge for the unknown American citizens that are communicating with terrorists.

2). How do you request a warrant for someone that is going to place a phone call from a pay phone? Our government does not have the resources to follow around every suspect to see if they are making a call from a payphone, and then let the NSA know which payphone to intercept. This is why a blanket warrant or an ammendment to the constitution needs to take place.

There has never been and there should never be a requirement to obtain a warrant for intercepting enemy communication. It is strictly a military necessity, therefore we should leave it at that. Here is a small note to all the Americans who think they are being violated because they think the NSA is listening to them ask their boyfriend/girlfriend what they want for their birthday or what they should pickup from the grocery store. Your liberties are not being taken away. Just get over it. Your freedom is still intact. You can still take your kids to a baseball game, still go to the shopping mall, still go to the movie theatre, still go to Starbucks, etc. You can still do as much as you did before the NSA started intercepting enemy communication.

If by some chance those against intercepting enemy communication without a warrant are successful and the program is taken away, then you will morally responsible each and everytime an American dies at the hands of a terrorist. Also, to gauge whether or not you really think liberty is not worth sacrificing for security. Ask yourself this question. If your loved one was taken hostage, and they hostage taker told you they were going to kill your loved one unless you let them listen to all your phone conversations for one month, what would you do? If you are really set on thinking your civil liberties are not worth giving up, then your answer to this question should be that you would not let the hostage taker listen to your conversations. This would make you a sick person because you had the power to save lives, and didn't capitalize on it.

This program is in the business of saving lives, not listening in on whether someone on parole is dealing drugs again. This is a new era that those that wrote the constitution were unaware would ever come. Times change... time to keep up with them. Take your pathetic civil liberty and stick it where the sun doesn't shine. You're still able to pay your bills, go to college. Be proud to be an American... and let the Commander in Chief authorize the NSA to intercept enemy communication without dealing with all the B.S. that normally comes with politics.

[Con Law Student]

I want to make a point about the Fourth Amendment, which is in opposition to the learned scholar who authored this blog. Amend. 4 of the Constitution only prohibits searches that are "unreasonable." Thus, if a search is "reasonable," it is permissible. The key is not necessarily a judicial warrant or probable cause; that is just the qualifications that usually, but not always, makes a search reasonable. See, e.g., United States v. Knights (upholding search of parolee on "reasonable suspicion" standard). Also, the Court is willing to make exceptions to the Fourth Amendment under the special needs doctrine. See, e.g., Stiz (upholding constitutionality of traffic stops with no level of individual suspicion to stop drunk drivers to protect public safety).
The Founding Fathers set a "reasonableness" standard for the sole reason of allowing value judgments to be made. Thus, one could easily conclude that the government's legitimate interest outweigh the individual's right to privacy. After all, preventing terrorism is a very compelling interest and listening to phone conversations is a minimum invasion compared to a strip search, police home invasion, or even a traffic stop. Thus, the search may be "reasonable" under the Fourth Amendment as long as it is very narrowly tailored.
The main concern, and a very serious one, would be if the government started to use the information obtain in a conversation for the purpose of general law enforcement. In other words, if the government, for example, used info obtained during a monitored conversation to arrest someone for a minor drug charge or some other non-terrorism violation of the penal law. This is a legitimate concern. The government must not be allowed to enforce the general criminal law while undercutting the safe guards in the name of terrorism. Also, politics must not be the purpose either. In other words, President Bush should not be allowed to same the following: Howdy, Howard Dean is a "terrorist" so lets monitor his phone calls. He should not be able to use the "terrorist" label broadly enough to swallow the Fourth Amendment.
Thus, the program may be constitutional. However, it is silly to erode civil liberties to fight terrorism, for then the terrorist win. If secret programs continue to expand and are broader in scope, the USA will resemble the former USSR.

[Justin]

The bottom line is that neither Congress, lawmakers, or FISA have the authority to dictate how the military engages the enemy. The NSA is a military asset that is intercepting enemy communication that is of militaristic value; therefore, it doesn't matter how unlawful Congress, FISA or any lawmaker thinks it is. Suppose the Air Force Communication Agency (AFCA) wanted to intercept enemy communication in the U.S. or abroad, Congress does not have the authority to tell them to stop. Members of Congress, FISA, and all the lawmakers in the country are not experts in military warfare; therefore not only are they unauthorized to dictate how to engage the enemy, they are also unqualified to make any such decisions because they are not experts in that field. Let's leave the job of engaging the enemy to the military. Just understand and accept that there is a big difference between search/seizure (which is what the 4th Amendment was intended for) & engaging the enemies of the United States.

[MagMa Report]

HITLER ALSO FOUGHT TERRORISM

The seat of the German parliament (the Reichstag) burned on February 27, 1933. And Hitler had lost no time in exploiting the fire to the limit.
Here is what I read this morning in William L. Shirer’ Rise and Fall of the Third Reich:

On the day following the Reichstag fire, February 28, Hitler prevailed on President Hedinburg to sign a decree "for the Protection of the People and the State" suspending the seven sections of the Constitution which guaranteed individual and civil liberties.
Described as a "defensive measure against Communist acts of violence endangering the state," the decree laid down that:

"Restriction on personnal liberty, on the right of free expression of opinion, including freedom of the press; on the rights of assembly and association; and violations fo the privacy of postal, telegraphic and telephonic communications; and warrants for house searchers, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed."
In addition, the decree authorized the Reich government to take over complete power in the federal states when necessary and imposed the death sentence for a number of crimes, including "serious disturbances of the peace" by armed persons.
[...]
The day after the Reichstag fire the Prussian government issued a long statement declaring that it had found Communist "documents" proving:

"Government bluidings, museums, mansions and essential plants were to be burned down ... Woment and children were to be sent in front of terrorist groups ... The burning of the Reichstag was to be the signal for a bloody insurrection and civil war ... It has been ascertained that today was ti have throughout Germany terrorist acts against individual persons, against property, and against the life and the limb of the peaceful population, and also the beginning of general civil war."

Publication of the "documents proving the Communist conspiracy" was promised, but never made.
[...]
The idea for the fire almost certainly originated with Goebbels and Goering.

The point here is NOT that "Bush=Hitler". No, that would be outrageous.
The point is that the state of emergency that has clearly emerged in

the Military Order that Bush issued on November 13, 2001,
is analogous to the decree proclaimed by Hitler the day after the Reichstag fire, on February 28, 1933: the Decree for the Protection of the People and the State.
This decree suspends all the articles in the Weimar Constitution maintaining individual liberties. And this decree was never revoked. From a legal perspective, the entire Third Reich was a twelve year-long state of emergency.
The issue of Bush's Military Order was to subject non-citizens suspected of terrorist activities to exceptionnal jurisdiction that would include "indefinite detention" and military tribunals. Bush's Order eradicated the legal status of every alien suspected of endangering national security, and produced entities that could be neither named nor classified by the Law.
From a legal perspective, the situation of the detainees in Guantanamo is analogous to the situation of the Nazi camps detainees: they both have no legal status, and are thus exposed to potential bloody violence.

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