Tony
Penultimate Amazing
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Hatred of freedom is the bedrock of current conservative values.
So What else in the US Constitution Doesn't Apply During a Self-Declared War?
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Hatred of freedom is the bedrock of current conservative values.
RandFan
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Hard to say. Apparently it has been going on for some time now.
Bill Clinton Signed Executive Order 12949 that allowed Attorney General to do searches without court approval
Jimmy Carter Signed Executive Order 12139 on May 23, 1979: "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."
Doesn't make it ok but certainly indicates that it is not a new phenomenon.
OK, going into the exclusion a bit more deeply, in order for this to be in compliance with FISA without getting an order:
1.) They would have to be reasonably sure that no American citizen would be participating in a monitored conversation.
2.) They would have to be monitoring “a faction of a foreign nation or nations, not substantially composed of United States persons”
3.) They would have to destroy all records, files, and records obtained within 72 hours of unless they got a court order for surveillance.
4.) The attorney General would have to write under penalties of perjury that all of these things were true. This would be submitted under seal to the court and stay under seal unless they either requested a formal order for surveillance or in was opened to confirm the surveillance was in compliance with the law.
5.) They would need to provide the House Select Committee on Intelligence and the Senate Select Committee on Intelligence with a description of, “(A) each criminal case in which information acquired under this chapter has been passed for law enforcement purposes during the period covered by such report; and (B) each criminal case in which information acquired under this chapter has been authorized for use at trial during such reporting period” on a semiannual basis.
If they have done all of these things (not some, all), then they might have a case for being within the bounds of the Foreign Intelligence Surveillance Act. But nobody in the administration is making this argument. Considering that showing they were within the law would instantly make the entire scandal go away, one wonders why they don’t.
RandFan
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Riiiight.And I'm sure you fantasize that "God Bless America" is playing in the background when you post crap like that.
I suppose that means you concede Rick's point.
Which parts of the constitution do not apply?
The relevance of my historical point, which of course went right over your head, is that the government in the past did many similar things which passed constitutional muster in the courts. The 4th amendment prohibits UNREASONABLE searches, i.e., with the intention of not creating a police state, not ALL searches.
The founders could not have imagined, of course, that there would be such a thing as the computer, or the cellular phone, or even the telephone, so the constitution is naturally silent on whether and under what conditions is wiretrapping such devices is "unreasonable search". What the founders were concerned with was physical searches of people's homes.
So it was up to later judges, lawyers, etc. to interpret what "unreasonable search" means in such cases: does it always require a warrant, for example, since after all you are not seizing any person or property from somebody's home--or can it be "reasonable search" without it? And in what cases does the secrecy of the job make it "reasonable" to not inform the person who'se spied on? After all, by its very nature, intelligence cannot come to somebody and say, "Hi, we suspect you're a German (or whatever) spy. Care if we listen to your phone?".
Such and similar questions were decided with the 4th amendment in view; and historically (I might be wrong on this, but I am pretty sure I am right) the courts allowed American intelligene agencies to spy on US citizens without a warrant in certain exceptional cases as not violating the 4th amendment. This is not some Bush conspiracy, but something that had existed in various forms for a long while and had passed constitutional muster.
So it is highly relevant, Cleon, that such a tradition (so to speak) exists, as it shows that your view of the 4th amendment is not necessarily the one the USA and its courts have. And it is hardly unconstitutional to violate Cleon's amateur reading of the 4th amendment, is it?
I suppose that means you concede Rick's point.
Which parts of the constitution do not apply?
The relevance of my historical point, which of course went right over your head, is that the government in the past did many similar things which passed constitutional muster in the courts. The 4th amendment prohibits UNREASONABLE searches, i.e., with the intention of not creating a police state, not ALL searches.
The founders could not have imagined, of course, that there would be such a thing as the computer, or the cellular phone, or even the telephone, so the constitution is naturally silent on whether and under what conditions is wiretrapping such devices is "unreasonable search". What the founders were concerned with was physical searches of people's homes.
So it was up to later judges, lawyers, etc. to interpret what "unreasonable search" means in such cases: does it always require a warrant, for example, since after all you are not seizing any person or property from somebody's home--or can it be "reasonable search" without it? And in what cases does the secrecy of the job make it "reasonable" to not inform the person who'se spied on? After all, by its very nature, intelligence cannot come to somebody and say, "Hi, we suspect you're a German (or whatever) spy. Care if we listen to your phone?".
Such and similar questions were decided with the 4th amendment in view; and historically (I might be wrong on this, but I am pretty sure I am right) the courts allowed American intelligene agencies to spy on US citizens without a warrant in certain exceptional cases as not violating the 4th amendment. This is not some Bush conspiracy, but something that had existed in various forms for a long while and had passed constitutional muster.
So it is highly relevant, Cleon, that such a tradition (so to speak) exists, as it shows that your view of the 4th amendment is not necessarily the one the USA and its courts have. And it is hardly unconstitutional to violate Cleon's amateur reading of the 4th amendment, is it?
Bjorn
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Maybe. Or he just made some leeway for the administration, handy to fall back on when/if we find out what phones have been tapped. Or maybe "related terrorist organization" covers about everything from lesbian muslim librarians to gay atheist comedians.
Seriously, is it OK that Big Brother is watching us as long as he's assuring us that he's not spying on the good guys, only those that the secret surveillance cameras show to be bad guys?
Kevin_Lowe
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You must have gotten to him if he's started threatening you, Melendwyr.
Change that to neo-conservative, and he's absolutely correct.
It's nothing less than an attempt to foster a Christianity-acknowledging authoritarian state.
Upchurch
Papa Funkosophy
As I have amply demonstrated in this thread already, I am no legal scholar. As I read both of these, it seems to me that they deal primarily with foreign searches and does not include domestic searches. I take this to mean that the President is authorizing the Attorney General to search foreigners (both domestically and abroad?) for intelligence.
Do these orders include or exclude US citizens?
Also, did Bush also issue one of these orders?
Tony
Penultimate Amazing
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I don't really make a distiction. Bans on gay marraige, the demonization of individual liberty, continued criminilization of drugs, high taxes and a military on which they are spent, pushing religious indoctrination in schools, anti-miscegenation laws, bans on certain sex acts, blue laws and laws against alcohol, anti-pornography ideals, searches without warrants, anti-prostitution laws, laws against polygamy, inprisoning people with-out due process, and spying on free American citizens are just a few examples of conservative and neo-conservative ideas that are rooted in a fundamental distrust of individual freedom.
Tony said:
Does either of you fvcking morons have something substantive to add to the thread, or do you just want to keep pulling your puds?Melendwyr said:
Like..um...that highly substantive comment?
"The constitution, contemplating the grant of limited powers, and distributing them among various functionaries, and the state governments, and their functionaries, being also clothed with limited powers, subordinate to those granted to the general government, whenever any question arises, as to the exercise of any power by any of these functionaries under the state, or federal government, it is of necessity, that such functionaries must, in the first instance, decide upon the constitutionality of the exercise of such power. It may arise in the course of the discharge of the functions of any one, or of all, of the great departments of government, the executive, the legislative, and the judicial. The officers of each of these departments are equally bound by their oaths of office to support the constitution of the United States, and are therefore conscientiously bound to abstain from all acts, which are inconsistent with it...If, for instance, the president is required to do any act, he is not only authorized, but required, to decide for himself, whether, consistently with his constitutional duties, he can do the act." —Joseph Story, Commentaries on the Constitution, §374
"[A]n unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment...Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it...No one is bound to obey an unconstitutional law and no courts are bound to enforce it." —American Jurisprudence, Second Ed., Vol. 16, §177
Cleon
King of the Pod People
Welcome back, shanek. You were missed.
Grammar is everything, manny, particularly when communicating in a text-only medium, and especially when you're going to call others morons.
The association of enforced adherence to the secular religion of patriotic display and public enactment of religious ritual has been acknowledged for a long time. It's undeniable that there is a definite trend towards authoritarianism in this country. The powers of the Executive branch continue to broaden and deepen, in practice if not in law. Much of religious behavior is just a way to confirm who's on the team, to determine those who acknowledge social power. It's like a uniform or a gang sign: it's arbitrary ritual intended to demonstrate group solidarity.
Given that the neo-conservative moment is closely linked with Christian evangelist movements, and given the reality that much of religion is a manifestation of tribalistic group identification, and given our society has favored secular rituals that serve much the same purpose and that piety and patriotism have been associated for quite a while in this country: the conclusion that there are significant forces pushing the U.S. towards authoritarian rule seems quite obvious.
Patricio Elicer
Obsessed with Reality
[modp]Manny, I remind you that personalizing the issues through remarks like these, is not allowed in this section. Also, you should not circumvent the forum filters for forbidden words[/modp]
rikzilla
Ninja wave: Atomic fire-breath ninja
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context alert:
Here's the context:
All I did Kevin was tell him that he will have the opportunity to say that to my face @ TAM. No threat...merely statement of fact. If he wishes to offer me to his gods as he previously inferred; well; he now knows where to find me.
No threat there at all. That would be against the rules eh?
-z
Here's the context:
All I did Kevin was tell him that he will have the opportunity to say that to my face @ TAM. No threat...merely statement of fact. If he wishes to offer me to his gods as he previously inferred; well; he now knows where to find me.
No threat there at all. That would be against the rules eh?
-z
I do not believe this is or was correct. The concept of "unreasonable search" is specifically not confined only to physical searches of people's homes, but also explicitly includes other things such as "their persons, houses, papers, and effects."
"Papers" is the joker in the pack. It was not only known -- but in parts of the continent, particularly in Austria, it was common practice -- for papers and letters between people to be routinely opened, read, copies, and decrypted if necessary, by agents of the government in the form of the "Black Chambers." (The Viennese "Black Chamber" was more formally known as the Geheime Kabinets-Kanzlei during the 1700s, if you want more information.)
This practice would have been well-known to the American Founding Fathers, and was (of course) specifically contemplated and prohibited by the Fourth Amendment.
Given that this practice was specifically prohibited, why on earth do you assume that the Founding Fathers would specifically prevent people from opening and reading paper letters without warrant, but would be happy or comfortable with the same thing happening to Email (or telephone conversations)? I think it's very clear from the historic record that the same 4th Amendement protections should apply to Email as to paper mail.
Globert
Thinker
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Time sensitive in the age of PGE? Really, how long to break 128 bit encryption?
or whatever is out there. added to the trillions of bits of data modern comunication is? is alqeda transmiting anything at all? we'd be better off with random goat searches in Kashmir.
-Globe
or whatever is out there. added to the trillions of bits of data modern comunication is? is alqeda transmiting anything at all? we'd be better off with random goat searches in Kashmir.
-Globe
The Fool
Penultimate Amazing
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A very worrying post. This sort of suggestion needs to be stepped on quickly as the last thing JREF needs is trouble at TAM from people who think they can chest thump on forums.