How it "may become necessary" to Shred the Fourth Amendment, and Other New Year's Bedtime Stories

Matt Welch | January 3, 2006

Before the gong clanged on 2005, President Bush signed John McCain's torture bill into law, with a clarifying signing note that strongly hinted the government reserves the right to torture anyway, if it deems the activity to be covered under its interpretation of White House prerogatives:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Presidential signing notes, which Bush (and apparently Supreme Court nominee Samuel Alito) are fond of, do not as of yet carry much if any force of law; they're more a window into where the president's head is at.

Reaction from Marty Lederman, whose dogged criticisms of torture I have generally agreed with:

Translation: I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks. [UPDATE: Or, as Matthew Franck eagerly puts it over at the National Review, "the signing statement . . . conveys the good news that the president is not taking the McCain amendment lying down."]

You didn't think Cheney and Addington were going to go down quietly, did you? (And this even though they took their opponents to the cleaners by negotiating the Graham Amendments, which, by precluding substantial avenues of judicial review, are far more beneficial to their detention and interrogation policies than the McCain Amendment is detrimental.)

But does the White House have the constitutional authority to, as Gary Farber warns us is happening, "collect[] every available bit of information about you, public and that which comes up via investigation of others, accurate or inaccurate, putting it all in a massive file about you updated on a constant real-time basis, and then integrating that into a massive data-matrix that shows all perceived links between you and other people and enterprises, and then analyzes that, and then washes, rinses, and repeats, non-stop"?

Mickey Kaus bravely bulldozes the goalposts on such talk, in a post headlined "Is the Fourth Amendment the problem?" (Sarcastic answer: It sure was for the New Democrats, which is largely why the thing got so battered in the 1990s.) Kaus quotes this Case for Surveillance in The Boston Globe, then comments (emphases his):

of course if there's a credible threat of home-grown terrorism it may also become necessary to scan domestic electronic communications, in which case a lot of the Fourth Amendment loopholes currently being cited in the defense of Bush's FISA snooping (e.g., "border search") will not be available.

What do the women's shoe libertarians say? We're at war! I'd love to have a sensible debate, but damn that media! They're gonna wipe out New York, and you're bugging me about library records?!

Some rebuttals here, more reaction-stuff here, and an exhaustive analysis of the whole NSA/Echelon/Total Government stuff here. Time's description of the new NSA/CIA book by New York Times staffer James Risen -- whose reporting has sparked a Justice Dept. investigation into the leaks that supported it -- is also worth a read.

Comments

|1.3.06 @ 7:38AM|#

"...and then integrating that into a massive data-matrix that shows all perceived links between you and other people and enterprises..."

So does that mean that Kevin Bacon is an al Qaida operative? Oh wait, that means that we're all within 6 degrees of becoming an al Qaida operative! So tell me again why this surveillance thing is no big deal?

|1.3.06 @ 8:34AM|#

I hope a Democrat wins the next Presidential election, if for no other reason than to watch how fast National Review backpedals from its "let the Executive Branch have all the popwer" stance.

|1.3.06 @ 8:42AM|#

popwer = power

|1.3.06 @ 8:52AM|#

I like how Reason reads National Review - so I don't have to.

Matt Welch|1.3.06 @ 8:59AM|#

No National Reviews were read in the making of this post....

|1.3.06 @ 9:03AM|#

He really thinks he's a dictator.

He thinks the president has one "accountability moment" - the election - and thereafter is answereable to no person, law, or court.

Warren|1.3.06 @ 9:40AM|#

joe,
That's true. What sends me reaching for the sweet oblivion found at the bottom of a bottle, is the thought that he appears to be right.

|1.3.06 @ 9:41AM|#

I long for the days when even getting a blowjob wasn't considered an "inherent" power of the executive.

Seriously, does anybody remember the days when the House was a full time investigative body? When their every waking moment was spent looking into any allegation ever made against the executive branch? When Congressional leaders opposed expanding the power of the Executive Branch?

I don't care how much worse a Democratic President would be, because I know that the Congressional Republicans would be a hell of a lot better with a Dem in the White House.

I want the old Republicans back.

Timothy|1.3.06 @ 10:31AM|#

Thoreau: That gridlock spawned by partisanship is the best course for the country has been the first hard lesson of my young political life. 2000 was the first election I could vote in, 2004 was the first election where I voted for the wrong guy for executive because I liked the other guy less.

May the Democrats retake the Whitehouse without ever recovering in Congress.

|1.3.06 @ 10:55AM|#

I can't disagree with thoreau or Timothy, but I'm worried about the intervening years, so:

May the Dems retake Congress this fall, and then take the Presidency and lose Congress simultaneously in '08!

|1.3.06 @ 11:29AM|#

May the Democrats retake the Whitehouse without ever recovering in Congress.

Or the other way around. Whichever, amen.

|1.3.06 @ 11:31AM|#

Darnit, may the Libertarians take the White House some day!

Just a serious Libertarian candidate and a good showing in the polls would at the very least have huge entertainment value. Imagine the entrenched structures' spin attempts.
Fat chance.

|1.3.06 @ 11:32AM|#

Speaking as a Democrat, I'll have you know that we can manage gridlock just fine all by ourselves, without any help from the Republicans, thank you very much.

Thomas Paine's Goiter|1.3.06 @ 11:46AM|#

Speaking as a Democrat, I'll have you know that we can manage gridlock just fine all by ourselves, without any help from the Republicans, thank you very much.

What Joe means is that Democratic-funded public works project create gridlock for the rest of us, just fine thanks.

|1.3.06 @ 11:53AM|#

You got me there, TPG. Good Republican public works projects don't create gridlock.

I mean, how many cars could possibly be inconvenienced during the construction of Ted Stevens' bridges?

|1.3.06 @ 11:55AM|#

I mean, how many cars could possibly be inconvenienced during the construction of Ted Stevens' bridges?

Based on the number of cars in the area, I'd say about four dozen.

|1.3.06 @ 12:04PM|#

Yeah, Jennifer, but what about all the snowmobiles?

That pushes the number up considerably.

Thomas Paine's Goiter|1.3.06 @ 12:05PM|#

I mean, how many cars could possibly be inconvenienced during the construction of Ted Stevens' bridges?

SONOFA...thanks for stealing my punchline Joe.

*grumbles*

|1.3.06 @ 12:56PM|#

Signing note or not, torture is now illegal. We have something we can hang the bugger on. It's not like they're really going to stop, after all.

|1.3.06 @ 1:55PM|#

It's so real
It's How I Feel
It's this society
That makes a nigga wanna kill
I'm just straight ill
Ridin' my motorcycle down the streets
While politicians is soundin' like strippers to me
They keep sayin' but I don't wanna hear it...