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February 05, 2006

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Frederick Hamilton

Kimball,
I agree with you that interception of calls between non-terrorist, non-combatant, law-abiding American citizens, without probable cause or a reasonable suspicion of enemy status would be illegal. I would hope the NSA will be able to prove to the House and Senate Intel Committees the implementation of the program precludes spying on innocent Americans. I think you are finally coming around to agreeing that if indeed the program is as narrow and limited as advertised and intercepts are only being made of international calls with a strong probablility of terrorist connection then all the hoopla not warranted.

Kimball Corson

Frederick, I agree that our enemies need to be spied and eavesdropped upon and that they have no Fourth Amendments rights. The rest of us do, and we need protection. We need good heads to figure out how to accommodate our interests in these two regards and get the job done, I think we can agree.

Kimball Corson

I earlier wrote:

". . . Congress shows no particular inclination just now to amend FISA. . ."

That has now changed, as I point out above. The Senate and House Intelligence committees are about to consider what to do in this quarter. The target is or likely will be how, if at all possible, can FISA be amended to legalize and sanitize what NSA is doing. This is so because Republicans want to protect the Administration from the charge of acting illegally, while letting it do what it wants.

However, the real focus needs to be on how the NSA program works so it can be fixed to protect those who must be protected and get at those who should not be. Unfortunately this gets too close to the legality question in regard to what has been done, so the Intelligence Committees shy away from doing what they should. After the proper inquiry, perhaps FISA does need amendment, but certainly not before. We need good correction and possible legislation, but certainly not a legislative whitewash. Let us hope better heads prevail here and all recognize that the Fourth Amendment poses sound limitations.

JackD

How do you suppose anyone is going to be able to detect use of this doctrine to monitor domestic groups who oppose the administration? If everything involved in the program is kept under the wraps of "classified" information, do you seriously contend that any check of any kind will be viable? If so, I suggest you are naive.

Kelly Almond

Some folks like to say "Freedom isn't Free"

I agree. And I am willing to put my life on the line right here at home to make sure that we still have a 4th Amendement. It is the only way I can justify young men and women going to their deaths in Iraq and elsewhere. If we let the President and a spineless Congress take away this right then we deserve the fruits of complacency.

Frederick Hamilton

The Fourth Amemdment is a pillar of our freedom. No question. The amendment is brief and specific: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Don't worry about having to put your life on the line right here at home to make sure that we still have a 4th Amendment. Nobody is going to take it away.

What is misunderstood is that there are any number of warrantless searches that the Courts up to the Supreme Court have determined need no warrant or even probable cause. To wit; you get searched every time you get on an airplane in America. Your possesions are searched before being put on an airplane. No warrants. No probable cause. Any U.S. Citizen entering the country from abroad is subject to a search without warrant or probable cause. Any U.S. citizen may be stopped at a police checkpoint looking for drunk drivers and search/tested for alcohol use without a warrant or probable cause.

I guess I can't understand how an al Qaeda terrorist enjoys the protections of the Fourth Amendment. Should any of the 9/11 hijackers living in the U.S. have had Fourth Amendment rights? In a time of war, does the executive have the power to "search" the enemy's communication with international phone calls without warrants from a court? Please, with your answer, be sensitive to how specific I have been and how specific the executive says the NSA program is: international calls with a high probability of being calls between suspected terrorists at a time of legal statutorily approved war.

This concern over the Fourth Amendment being taken away is a bit of hyperbole. Sometimes a little common sense regarding trying to fight an enemy determined to continue to attack and kill thousands of Americans needs to be applied.

It is postulated that 9/11 could have been prevented had the NSA program been in effect against al Qaeda with regards to the two terrorists living in San Diego and making international calls to their superiors planning the attacks. Do any of you think that the Fourth Amendment should have protected the two terrorists in San Diego making those international calls?

Kelly Almond

Kelly's response to Frederick's opinion are in parenthesis...

The Fourth Amendment is a pillar of our freedom. No question. The amendment is brief and specific: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Don't worry about having to put your life on the line right here at home to make sure that we still have a 4th Amendment. Nobody is going to take it away. (I wish I could believe that but I want proof. The President is authorizing data mining and not even getting a search warrant after the fact.)
What is misunderstood is that there is any number of warrantless searches that the Courts up to the Supreme Court have determined needs no warrant or even probable cause. (I also know that many cases arising from warrantless searches by the police are thrown out of court.) To wit; you get searched every time you get on an airplane in America. Your possessions are searched before being put on an airplane. No warrants. No probable cause. Any U.S. Citizen entering the country from abroad is subject to a search without warrant or probable cause. Any U.S. citizen may be stopped at a police checkpoint looking for drunk drivers and search/tested for alcohol use without a warrant or probable cause.
I guess I can't understand how an al Qaeda terrorist enjoys the protections of the Fourth Amendment. Should any of the 9/11 hijackers living in the U.S. have had Fourth Amendment rights? In a time of war, does the executive have the power to "search" (With all due respect sir, I am not the enemy unless it is proven in a court of law that I have done something wrong. You have to prove that.) the enemy's communication with international phone calls without warrants from a court? Please, with your answer, be sensitive to how specific I have been and how specific the executive says the NSA program is: international calls with a high probability of being calls between suspected terrorists at a time of legal statutorily approved war. (Yes it was an approved war that is now widely seen to have been based in misinformation or lies.)
This concern over the Fourth Amendment being taken away is a bit of hyperbole. (Upon signing the Declaration Independence, Thomas Jefferson said that we would have to fight to keep it. Its just part of doing business in a Democracy. I also think that we will never be secure; no matter what rights are taken away. Benjamin Franklin said that “those who sacrifice their Freedom for security, deserve neither”.) Sometimes a little common sense regarding trying to fight an enemy determined to continue to attack and kill thousands of Americans needs to be applied. (Yes, I think that Corporations like Enron are doing everything in their power to terrorize citizen’s right here at home. I would rather risk my life in the understanding that with freedom comes a bit of insecurity. We need to use common sense in battling any group or person that would do us harm, including elected officials who run scared and gut the very Freedoms that they swore to uphold.)
It is postulated that 9/11 could have been prevented had the NSA program been in effect against al Qaeda with regards to the two terrorists living in San Diego and making international calls to their superiors planning the attacks. (It has also been postulated that if certain low level CIA operatives would have been taken seriously, then the 9/11 attacks could have been avoided. Those organizations seem to have internal issues that get in the way of good detective work.) Do any of you think that the Fourth Amendment should have protected the two terrorists in San Diego making those international calls? (That is not the issue. The issue is better communication in the levels of information gathering that are already in place.)

Bob

The best weapon of a dictatorship is secrecy; the best weapon of a democracy is openness.
- Edvard Teller

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
- Benjamin Franklin

Without publicity, no good is permanent; under the auspices of publicity, no evil can continue.
- Jeremy Bentham, 1768

Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.
- James Madison, fourth American president

Every thing secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.
- Lord Acton

The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.
- Patrick Henry, American colonial revolutionary

Bureaucracy always seeks the path of least disclosure.
- Darrell Evans, FIPA

A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both.
- James Madison, 1832

I believe that a guarantee of public access to government information is indispensable in the long run for any democratic society.... if officials make public only what they want citizens to know, then publicity becomes a sham and accountability meaningless.
- Sissela Bok, Swedish philosopher, 1982

The overarching purpose of access to information legislation … is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.
- Gerard LaForest, former Supreme Court of Canada Justice, in Dagg vs. Canada (1997)

Government ought to be all outside and no inside. . . . Everybody knows that corruption thrives in secret places, and avoids public places, and we believe it a fair presumption that secrecy means impropriety.
- Woodrow Wilson

Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government.
- Jeremy Bentham

If I had won the debate in cabinet, we wouldn't have a Freedom of Information Act.
- former B.C. premier Glen Clark

After I had been confirmed as federal Information Commissioner, I met with the former Commissioner, John Grace, to get his advice. One thing he said struck me in particular; he said that in his seven years as Privacy Commissioner and eight years as Information Commissioner (a total of 15 years spent reviewing the records which government wanted to withhold from Canadians) he hadn't seen a really good secret. My experience is much the same over the first year of my term. For the most part, officials love secrecy because it is a tool of power and control, not because the information they hold is particularly sensitive by nature.
- John Reid, 1999

It amuses me to see the profound change in attitude about access to information which occurs when highly placed insiders suddenly find themselves on the outside. And vice versa!
- John Reid, 1999

Secrecy is for losers. . . . It is time to dismantle government secrecy, this most persuasive of Cold War-era regulations. It is time to begin building the supports for the era of openness that is already upon us.
- Senator Patrick Moynihan, Secrecy: The American Experience, 1998

Frederick Hamilton

Kelly,
Some quick comments. Neither you nor I will get any proof vis a vis the Fourth Amendment but your elected reps on House and Intel Committee's will. So will the Supreme Court if it gets that far. I hope it does. All this peripheral pontificating is certainly not definitive. My guess is that even definitive evals won't satisfy you.

Of course many cases of warrantless searches get tossed out of court and they should. They violate the Fourth Amendment. However you didn't address my point. Many warrantless searches are allowed that do not violate the Fourth Amendment. The Supremes have adjudicated that a number of times. Sorry it is a fact.

Who said you were the enemy. I thought I was specific about the focus of the searches. Terrorist international calls. I am sorry but it is the issue and would you be kind enough to answer it: do al Qaeda terrorists in the U.S. enjoy Fourth Amendment protection?

How in the hell did Enron get into this discussion of NSA activity? Of course the CIA, FBI and NSA had issues pre 9/11. The 9/11 Commission detailed that quite well.

Sitting back and ignoring terrorists both in and outside the U.S. is not just doing business in a Democracy. Or as Justice Jackson opined, "the Constitution is not a suicide pact".

I don't mind risking your life, but in the bargain I am actually risking mine and that I do care about. I too would fight and be willing to die to protect our way of life. Right now we are in that fight and to paraphrase Patton, "I want those SOB's that want to destroy our way of life to die."

I know you don't believe Bush or the present executive branch and that is OK, but they are not running scared nor are they consciously trying to gut our freedoms. What a specious argument to make that Bush is using 9/11 as an opportunity to "gut our freedoms". The vast majority of Americans, thank goodness, want whatever President is in office (Clinton, Bush, Rice? Clinton?) to be right up al Qaeda's arse here and abroad. So I simply ask again: simple question: Do al Qaeda terrorists here in the U.S. enjoy the protection of the Fourth Amendment?


Bob

Fred,

Kelly and Kimball both have already said previously that terrorists within the USA do NOT have 4th Amendment protection. Do you not read their posts?

What they do say is that innocent citizens do have 4th Amendment rights and that these are being violated in the huge net being cast for terrorists.

Since you don't seem to be able to understand this subtle difference, let me give you an example. It's kind of like the dolphins that get caught in tuna nets. Get it?

Frederick Hamilton

Sorry, I must have missed the notes regarding the Fourth Amendment vis a vis the terrorists and Kelly and Kimball. Glad we all agree that listening in on international terrorist calls is legal and does not carry any Fourth Amendment implications vis a vis the terrorists.

I understand subtle differences very well. I respectfully disagree with your analysis that the aspects of the NSA program used to identify the international terrorist calls to be listened in on is this wide net that allows NSA to listen in on your calls, mine, Kimball's or Kelly's. I don't think you know the particulars of the identifying techniques allowing the intercepts. The House and Senate Intell Committees presumably do. The program continues. It will need to continue. It will continue with either Congressional approval by amending the FISA law (not necessary, legal already, yes I know you disagree) or by the Supreme Court agreeing to the legality and presidential power of listening in on the enemy. I am one of the majority of Americans that want our government to figure out a way to identify terrorist calls (I think they already have, legally) and to listen to every one of them.

I respect your opinion, I just think it will be proven very wrong. Time will tell, won't it? As for the dolphins, yes it is a shame they might get caught in tuna nets. The analogy with terrorists isn't very apt. My family has been swimming with Dolphins, they are wonderful and friendly, can't quite say the same for the 9/11 perps and their cohorts.

Bob

You misunderstand my dolphin example. The net is thrown to catch the tuna/terrorists. The dolphins/citizens are also subjected to violations due to these nets.

And I do know the technical specifics of how the "eavesdropping" system works. Basically, they have a computer that scans all calls and email for certain words and phrases. Then, these messages are immediately given to an analyst for review. This analyst listens or reads the whole conversation or message. That is an invasion of privacy from which the 4th protect us.

The arguement that there is no warrant for search because there is no person specifically targeted is rediculous. This is a convenient arguement to avoid the 4th. Since we target no particular person, we can search all citizens.

But one day, we will all be stopped by the police and asked to "show our papers." I'm sure their arguement will be something like "we aren't targeting the individual if it is a random stop." I hope to have left this country before that time.

Bob

"Show me your papaers." We do this for your own good. Of course, this behavior has always lead to a totalitarian state in the past. But somehow, everyone thinks that the USA is above that. Somehow, we are special and that it could never happen here. I suggest you re-read your history books. Nobody in Germany thought that it could happen there either. Gov't and people don't start out infringing on citizen rights with the idea to subvert. It's always done "for the good of the people." But it gets out of hand real quick. Once the mechanisms are in place, it usually only takes some sort of "emergency" to complete the transition from democracy to dictatorship.

Frederick Hamilton

This article pretty much sums up why the angst of all of those deploring the loss of our rights is a little off base.....Professor Dershowitz is no goofball or extinguisher of civil rights.

February 22, 2006
All Praise Prof. Alan Dershowitz
By Tony Blankley

Next week a vastly important book will be published: "Preemption, A Knife That Cuts Both Ways" by Alan Dershowitz. Yes, that Alan Dershowitz: the very liberal civil libertarian, anti-capital punishment Harvard Law School professor. And but for my lack of his legal scholarship, there is nary a sentence in the book that I -- a very conservative editor of the Washington Times, and former press secretary to Newt Gingrich -- couldn't have written.
The premise of his book is that in this age of terror, there is a potential need for such devices as profiling, preventive detention, anticipatory mass inoculation, prior restraint of dangerous speech, targeted extrajudicial executions of terrorists and preemptive military action including full-scale preventive war.

In his own words, from his Introduction: "The shift from responding to past events to preventing future harms is part of one of the most significant but unnoticed trends in the world today. It challenges our traditional reliance on a model of human behavior that presupposes a rational person capable of being deterred by the threat of punishment. The classic theory of deterrence postulates a calculating evildoer who can evaluate the cost-benefits of proposed actions and will act -- and forbear from acting -- on the basis of these calculations. It also presupposes society's ability (and willingness) to withstand the blows we seek to deter and to use the visible punishment of those blows as threats capable of deterring future harms. These assumptions are now being widely questioned as the threat of weapons of mass destruction in the hands of suicide terrorists becomes more realistic and as our ability to deter such harms by classic rational cost-benefit threats and promises becomes less realistic."

Yet, such policies conflict with traditional concepts of civil liberties, human rights, criminal justice, national security, foreign policy and international law He shrewdly observes that historically, nations -- including democracies -- have resorted to such deviations from law and custom out of necessity. But that it has all been ad hoc, secret or deceptive. Prof. Dershowitz argues that now, rather, we need to begin to develop an honest jurisprudence of prevention to legally regulate such mechanisms. It is better, he argues, to democratically decide now, before the next disaster, this new jurisprudence -- the rules by which we will take these necessary actions.

To see the difference between traditional Anglo-American criminal jurisprudence and his proposed jurisprudence of prevention, he raises the great maxim of criminal law: better that ten guilty go free, than one innocent be wrongly convicted. That principle led our law to require proof beyond a reasonable doubt before conviction in criminal trials. Most of us agree with that standard.

But then Prof. Dershowitz updates the maxim thusly: "Is it better for ten possibly preventable terrorist attacks to occur than for one possibly innocent suspect to be preventively detained?" I would hunch that most people would not be willing to accept ten September 11th attacks (30,000 dead) in order to protect one innocent suspect from being locked up and questioned for a while.

Is it possible to go beyond such gut instincts and ad hoc decision making during a crises, and begin to develop a thoughtful set of standards for conduct in this dangerous new world? I don't know.

As Prof. Dershowitz observes, a jurisprudence develops slowly in response to generations, centuries of adjudicated events. But to the extent we recognize the need for it and start thinking systematically, to that extent we won't be completely hostage to the whim and discretion of a few men at moments of extreme stress.

At the minimum, an early effort at a jurisprudence of prevention would at least help in defining events. Consider the long and fruitless recent debate about the imminence of the danger from Saddam Hussein's Iraq, or the current debate on Iran's possible nuclear weapons. Under traditional international law standards they are both classic non-imminent threat situations: "early stage acquisition of weapons of mass destruction by a state presumed to be hostile."

But as Dershowitz points out, while the threat itself is not imminent, "the opportunity to prevent the threat will soon pass." Once they have the weapons it is too late.

Or, a low price in innocent casualties might soon pass. For instance, in 1981 when Israel bombed Iraq's nuclear site at Osirak, if they had waited much longer the site would have been "radioactively hot" and massive innocent civilian casualties would have been incurred from radioactive releases. It is simply not enough anymore to say a country violates the norm by acting in its ultimate, but not imminent, self-defense. We need new standards for a new age.

The new realities of unacceptable risk require new -- and lower-- standards of certainty before defensive action is permitted.

As we develop a jurisprudence of prevention, we increase the chance of justice and rationality being a bigger part of such crisis decisions that our presidents will be facing for the foreseeable future.

Dershowitz's sound, practical scholarship is commendable. But what I find heartening is the political fact that a prominent scholar of the left has finally entered into a constructive conversation about how to manage our inevitably dangerous WMD/terrorist infested future.

If such as Dershowitz and I can find common ground, there should be space there for a multitude. And from that common ground can grow a common plan for a common victory.

Copyright 2006 Creators Syndicate

Kimball Corson

To Frederick Hamiliton

The Dershowitz-Buch-Wolfowitz model is a disaster in the making. We pick a preplanned war with Iraq because it has weapons of mass destruction. Wrong. We invade Afghanistan because the Taliban start to hide al Queda after we threaten them and because we do not like their politics. We threaten North Korea with war because it has nuclear weaponry. Senator McCain says what Bush and others are thinking: we need to invade Iran if it will not back down on its uranium enrichment program. We, a few others, and Israel all get nuclear weapons, but no one else can have them, because we are rational and sensible and no one else is, especially in the Arab world. We pick wars to prevent wars. We generate hatred for us world-wide like no one else can. We fight for peace. We destroy villages to save them. Are we nuts or what?

The rational deterrence model is quite alive and well in the world, thank you, including in North Korea. Indeed, Iran is looking for a solution, albeit with a bit of brinkmanship. What the Dershowitz-Bush-Wolfowitz model and the American Jewish community and its supporters persistently overlook is that the Arab world is rankled and hostile toward us --

First, over our continuing support of Israel (to whom “we” gave nuclear weaponry capability) and our and Britain’s creation of the Palestinian problem (have we forgotten? So who is irrational?), and

secondly, over the facts we occupy Arab lands, threaten Arab ways of life, and ridicule Arab religions.

Many poor Arabs have a nothing-left-to-loose mind set and are willing to give up their lives to oppose us, just as many of us would be willing to do if the shoe were on the other foot and Arabs supported our arch enemy who took much of our lands, Arabs occupied our American soil, Arabs sought to destroy our way of life and Arabs ridiculed Christianity, all while supporting torture, and other atrocities.

Dershowitz, Wolfowitz and too many other Jews cannot see clearly when comes to these matters and have themselves huge blind spots which they are trying very hard to intellectualize and give to the rest of us. This is a new Jewish problem if you will, I submit. A dumb patsy like Bush is just what was needed. (Note however that with the problems that the Dershowitz-Buch-Wolfowitz model has created for the present Administration, Wolfowitz is now out the door and Deshowitz never got in.)

And none of us are supposed to say a word about this problem, as I do here, or we are instantly deemed anti-Semitic (even though the Arabs are a Semitic people too – talk about preemption!) Yet we need to understand what is going on and who is pushing us in which directions and why.

It is the pro-Israel, anti-Arab alliance that is pushing this agenda and the Dershowitz-Buch-Wolfowitz model, not the rest of us who have an obligation to speak up and address these blind spots, the flaws of the model and the problems it is creating in the world. The Arab world is not at all irrational. It is furious at us and some in it have little left to loose because of what we have done and are doing, and they fight back as best it can with limited resources.

We need to get our heads on straight, think independently, and do so quickly.

Kimball Corson

Another untoward consequence of the application of the Dershowitz-Bush-Wolfowitz model (sorry for the misspellings of "Bush") that I forgot to mention is that we wind up having to take away some of our own civil liberties by using it. Now how foolish is that? So we are rational, but the Arabs are not? Give me a break.

Max P

I totally agrre with this:
" Even in the U.S. Fortunately most Americans (upwards of 70% or more) want our government to be not only listening to al Qaeda in this country but to be inside their minds if they could be."

What you need is to get to the root cause.
A bit like theyre trying to stop iran from having nuclear bombs, instead of focussing on how to intercept one of their nuclear tipped missile.

Also, of course if we locked everybody up and we all had a microphone embedded in our upper lips, we would probably be safer.

And if, as individual, we always stayed at home, always eat vegetables, and slep from 9 pm to 7 am, we'd probably safer.
But ask yourself what it is you really want?
Why are we here?
Why are we alive and what should we do with our lives?

I know its a bit philosophical, but in the end i dont think the majority of people want to live in the ultimate big brother state, and it seems to be coming, sooner or later...

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