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


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.