Terrorism

A New National Security Exception to the Fourth Amendment

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In a August 22 decision (PDF) that was released last week, the Foreign Intelligence Court of Review, which hears appeals from the Foreign Intelligence Surveillance Court, upheld an earlier version of the law that allows the executive branch to unilaterally authorize surveillance of international communications involving people in the United States. The law at issue, the Protect America Act of 2007, has expired, but it was replaced by a statute with similar provisions. Under both versions, the attorney general and the director of national intelligence may authorize the monitoring of email and telephone calls between Americans and people in other countries if the official target of the surveillance is believed to be located abroad and "a significant purpose" of the surveillance is the collection of foreign intelligence. A telecommunications company, whose name (along with some other crucial details) is redacted from the public version of the appeals court's decision, challenged an order issued under these provisions, arguing that it violated the Fourth Amendment. The court disagreed, discovering "a foreign intelligence exception to the Fourth Amendment's warrant requirement" for surveillance "conducted to obtain foreign intelligence for national security purposes" and "directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States." It also concluded that the executive branch's internal safeguards render the surveillance reasonable—assuming that everyone acts in good faith and nobody makes any mistakes.

That's a pretty big assumption, one that seems to obviate the Fourth Amendment itself. But the court ruled that, in the absence of specific evidence that the government is abusing its surveillance powers, the mere possibility of abuse is not enough to invalidate them. Sen. Russell Feingold (D-Wis.), a member of the Senate Intelligence Committee and the Senate Judiciary Committee, suggests that such evidence exists but was not brought to the court's attention: "It is my view that the Court's analysis would have been fundamentally altered if the company that brought the case had been aware of, and thus able to raise, problems related to the government's implementation of the law, about which I have repeatedly raised concerns in classified settings." Feingold also notes that the decision, which upheld a statute governing surveillance, in no way validates former President Bush's position that he had the authority to ignore such statutes.

Still, the recognition of a new exception to the Fourth Amendment is a big deal. There is enough leeway in the current rules to allow the government to read any international email message and listen to any international phone call involving people in this country without a warrant, as long as it asserts that the target is the person on the other end and that collecting foreign intelligence is one purpose of the surveillance. Furthermore, it's hard to see why the court's "special needs" reasoning for upholding this kind of surveillance would not also apply to surveillance of purely domestic communications said to involve an agent of a foreign power, or indeed to physical searches aimed partly at collecting foreign intelligence.

Here is the ACLU's take. Over at The Volokh Conspiracy, Orrin Kerr argues that the decision "was not a blank check by any means," since the court seemed to rely not only on the restrictions in the statute but also on additional Justice Department safeguards in its determination that the surveillance was reasonable. Then again, Kerr himself has suggested that the "border search" exception to the Fourth Amendment, which allows warrantless examinations of people and things entering the country, might also apply to electronic signals that cross the border, meaning that the Constitution imposes no restrictions on surveillance of such communications.

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  1. far from new. this except from executive order 12333 signed in 1981:

    2.5 Attorney General Approval.

    The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.

    So the AG has had this power since early Reagan.

  2. Can evidence gathered in this manner, but incidental to the national security purpose, be admitted in a US criminal court?

    Hey, we totally thought that guy who keeps flying back and forth to Bogota was calling “Al Qaeda in Colombia.” Anyway, we just happened to discover, all incidental-like, that he was setting up a coke buy.

  3. Here’s something for the lawyers to contemplate. All Blackberry communications pass through servers in Waterloo, Ontario, which, as far as I understand it, is a foreign country (I was in Windsor Saturday and getting there did seem to involve crossing an international boundary).
    So, does the use of a Blackberry constitute international communication? Can the g-men look at Obama’s communications? If not, why not? Discuss…

  4. joe,

    With the recent expansion and strengthening of a good faith exception to the exclusionary rule, I don’t see a legal way to stop them.

    “Oopsie-daisy! Honest Injun, your honor, we though those pot dealers were terrorists!”

  5. Geoff, that was the first thing I was thinking.

    How do you know where your email/communications get routed? I’m no tech wiz (obviously), and I clearly have no idea; I’m sure most people don’t.

  6. Here’s something else to contemplate. There are undoubtedly friendly foreign countries which monitor tons of communications. Can’t the NSA just ask MI6 to monitor whatever the hell they want, and then get the info from them? And agree to do the same in return?

  7. Epi,

    Shh…

  8. All this is driven by the ugly fact that the U.S. has never had any major intelligence sources except for electronic intercepts. This has been true going all the way back to WWII but become more severe after the 70’s political blowback against the CIA. The NSA has actually been our primary intelligence gathering agency since it was founded in 1947.

    It takes a decade or more to establish good human intelligence within a target group or nation and we simply lack the foresight and dedication to pull off such a feat. More importantly, human intelligence work is a very dirty business that routinely gets people tortured and killed and which poses a very high risk of political blowback and abuse. We simply do not have the political culture necessary to support a ruthless and effective human intelligence network.

    The presumption in civil criminal cases is that electronic surveillance will be used to determine who committed an already publicly known crime. With intelligence work, electronic surveillance is used to discover the existence of conspiracies to carry out attacks before they occur. In other words, with civil cases, the crime itself becomes the information-zero that triggers an investigation. In intelligence work, the electronic intercepts become the information-zero. Without them , we are flying blind.

    None of the critics of electronic intelligence want to acknowledge that we face a stark choice between either trolling for problems with such surveillance or working nearly completely blind. Its ugly, politically dangerous and probably unconstitutional under current law but no one responsible for national security will willingly put on blinders.

    Instead of immaturely wishing we lived in a different world with different realities, we need to come up with some sort of rapid oversight and division of powers that can handle our real world challenges.

  9. And NSA’s counterpart is GCHQ. Used to work with those guys – very top notch.

  10. When my daughter was working for an NGO in Afghanistan, I took it for granted that our calls and email were monitored, not because of any law permitting it, but because I don’t believe the law matters to those who would do the monitoring. When you have secrecy, there is no incentive to follow the law.

    Laws only work for organizations with integrity.

  11. Bravo Shannon Love. ever been in the biz?

  12. Geoff Nathan, SugarFree,

    Excellent points.

    Can FICW cases be appealed to the SCOTUS?

    All this is driven by the ugly fact that the U.S. has never had any major intelligence sources except for electronic intercepts. This has been true going all the way back to WWII but become more severe after the 70’s political blowback against the CIA. Lesson: actions by the CIA that, for the sake of expediency, violate our society’s norms and laws serve, in the long run, to undermine American security.

    One of the elements of the real world, the way it is, is that this is a liberal democracy. Policies and efforts that require America not to behave like one are doomed to fail.

  13. Instead of immaturely wishing we lived in a different world with different realities, we need to come up with some sort of rapid oversight and division of powers that can handle our real world challenges.

    I don’t believe a single word Shannon Love says, and I don’t believe a single word of the argument offered before the appeals court.

    If the issue here is one of foreign intelligence – if we need to eavesdrop on communications because that’s the way intelligence gathering works – if no one really wants to monitor citizens and permanent resident aliens inside the US, and the real targets are all overseas, and it’s simply technically too difficult to segregate overseas surveillance from domestic surveillance – fine. The answer is obvious: allow warrantless eavesdropping, but simply make any evidence gathered during such eavesdropping inadmissible against US citizens and permanent resident aliens in any civilian or military US court, if at the time of the surveillance the subject in question was physically located within the US.

    Raising any objection to that solution will make it apparent that Shannon Love’s argument is an argument of convenience and the case argued by the US before the court of appeals was an argument of convenience. [In other words, a lie.] It would make it apparent that the real targets are not, in fact, overseas, and that the issue is not, in fact, a procedural one.

  14. Why does everyone treat me like I am the Tenth?

  15. why does everyone treat me like I’m the Third?

  16. The Third is obviously our most important amendment (and right), because you don’t ever see the government housing troops in our homes without permission, do you?

  17. Fluffy,

    What’s your issue with Shannon Love exactly? Do you think we don’t need effective intelligence with good oversight? Do we set domestic cumminications completely off the table? Perhaps your issue is with Humint?

  18. Can’t the NSA just ask MI6 to monitor whatever the hell they want, and then get the info from them? And agree to do the same in return?

    According to the story on 60 minutes I saw several years ago, they have been doing exactly this for decades with project Echelon(sp?).

  19. Here’s something for the lawyers to contemplate. All Blackberry communications pass through servers in Waterloo, Ontario, which, as far as I understand it, is a foreign country (I was in Windsor Saturday and getting there did seem to involve crossing an international boundary).
    So, does the use of a Blackberry constitute international communication? Can the g-men look at Obama’s communications? If not, why not? Discuss…

    And does Canadian law protect non-Canadian citizens communicating in a foreign from surveillance?

  20. a foreign *country* — in this case the US.

  21. The answer is obvious: allow warrantless eavesdropping, but simply make any evidence gathered during such eavesdropping inadmissible against US citizens and permanent resident aliens in any civilian or military US court, if at the time of the surveillance the subject in question was physically located within the US.

    But what if a US citizen is plotting another 9/11 style attack and the evidence gathered against him was through warrantless eavesdropping?

  22. But what if a US citizen is plotting another 9/11 style attack and the evidence gathered against him was through warrantless eavesdropping?

    What if a US citizen was plotting another 9/11 style attack and the evidence gathered against him was from a non-Miranda interrogation?

    What if a US citizen was plotting another 9/11 style attack and the evidence gathered against him was from a warrantless physical search of his property?

    What if a US citizen was plotting another 9/11 style attack and the evidence gathered against him consisted solely of hearsay?

    What if a US citizen was plotting another 9/11 style attack and the evidence gathered against him was from an illegally wiretapped domestic communication?

    What if a US citizen was plotting another 9/11 style attack and the evidence gathered against him was from a priest-pentitent confession?

  23. And if that’s too snarky, Kurt, I guess I should say that the fact that this question even arises is what puts the lie to the argument that advocates of dispensing with the 4th Amendment are only interested in foreign intelligence.

    1. No Fluffy, those advocates as Shannon love are enemies of the Constitution and in particular the Bill of Rights. The insidious nature of the arguments raised by Shannon love, belies the violently egregious nature of its assault on the our constitutional guarantees. And there are many of these legal insurgents within and outside of Gov’ment willing to take a sledge hammer to the Constitution. Their greatest annoyance and irritation is the Bill of Rights in particular the 4th Amendment! Crusaders of National Security happy to minimize, trample and shred the Constitution which created the national interests they over zealously champion. Thank God for your vigorous and resounding decent!

  24. Fluffy,

    Who has been locked up as a result of any of this? you seem to be exercised that the government can use this info to prosecute people, when in fact its being argued that it can be used for intelligence purposes.

  25. domoarrigato —

    There is a (reasonable) argument as to the actual intent of the fourth amendment. Namely, that it was not merely intended to prevent government overreach, but also that it was intended to establish a sphere of private control which should not be broached for any reason short of duly issued warrants.

    Intelligence gathering fishing expeditions don’t quite make it to that standard.

  26. El, I respect that argument, but to play devils advocate, I would point out that it doesn’t actually say that – it presents more of a due process type standard. Warrents have to be specific, sanctioned, have probable cause etc. Intelligence gathering is hardly a fishing expedition, they have stated goals, and when they require surveillance of a US person, there is a FISA court that reviews it and issues an order to allow it. This is a pretty good mirror of due process. To the extent that the subjects are not US persons – ie. foreign nationals or agents of a foreign power – we don’t extend them the same protections that a citizen would have. I recognize the potential for abuse – which joe and SugarFree made above. That’s why the oversight piece is so important. EO 12333 also provides for a limited timeframe for such operations, with directions to destroy the info if it turns out the subject is a US person, or the info is not intelligence related. In my experience, the folks at NSA take this deadly serious.

  27. Did WW2 huff-duff operators get a warrant before decrypting messages sent in and out of the US?

    Just wondering.

  28. Calm down Fluffy.

    That question just popped into my head when I read your post but it is indicitive of problem with the nature of the War on Terror.

    Through surveliance of the communications of the bad guys overseas, we can use that intelligence to intercept the bad guys and stopping them before they strike.

    As long as we can eavesdrop on the bad guys overseas, even if they are talking to someone in the US, and take action against them, then I am happy with that.

    As to the American citizens they are conspiring with, I guess deportation would be the only answer since we can’t use the evidence gathered against them in a court of law.

  29. 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.

    Much like the maligned two-clause construction of the second amendment, I believe the text of the fourth outlines two tenuously connected clauses. The “shall not be violated” language sounds pretty absolute, only to be breached by the specific process outlined following it (the issuance of warrants).

  30. lmnop,

    Seems to me the 2nd clause defines the difference between a reasonable and an unreasonable search.

    Clause 1: No unreasonable searches period.
    Clause 2: You can search this way, these are reasonable.

  31. Fluffy,

    Well?

    Have you got an answer?

    WHAT IF…any of those things happened?

    Does the government leave the terrorist to his devices, because an arrest would be illegal? (Of course you’re not saying this, I know.)

    Does the government break up the plot, arrest everybody, hold them for 48 hours, then release them?

    Seriously, give me the answer to any of those questions. I’m being genuine here.

  32. Did Shannon Love actually say that the CIA had no agents on the ground during the cold war? Did I read that right?

  33. Clause 1: No unreasonable searches period.
    Clause 2: You can search this way, these are reasonable.

    My point is if we read it this way, then intelligence gathering doesn’t come close to being “reasonable”.

  34. lmnop,

    My point is if we read it this way, then intelligence gathering doesn’t come close to being “reasonable”.

    Yep. Then again, maybe the second clause isnt an exclusive list. Still wonder about WW2 huff duff. I dont think anyone has ever complained about violating the rights of americans communications in code with the nazis.

  35. Epi, I don’t think he did.. I thought he said that since the 70’s they’ve had to retrench.

  36. lmnop, but the subjects of surveillance (in this case) are foreigners or agents of a foreign power. The Amendment secures these rights to Americans – not to everyone, everywhere, always. We are saying that if it’s reasonable to believe that the subjects of interest are foreign, the AG can authorize surveillance for the purpose of determining whats going on. If, in the course of surveillance, it emerges that the subject is, in fact, a USPER – then they have to go to FISA to continue. That’s my understanding of the process.

  37. The Third is obviously our most important amendment (and right), because you don’t ever see the government housing troops in our homes without permission, do you?

    Maybe not most important, but the only one that hasnt been picked away at over time.

  38. The court disagreed, discovering “a foreign intelligence exception to the Fourth Amendment’s warrant requirement”

    Let me guess – it was in an emanation of the penumbra of “unreasonable”.

    See, people, this is what you get when you go all Living Constitution to get stuff you want in spite of the Constitution. You also get a load of shit you didn’t want, in spite of the Constitution.

  39. Clause 1: No unreasonable searches period.
    Clause 2: You can search this way, these are reasonable.


    My point is if we read it this way, then intelligence gathering doesn’t come close to being “reasonable”.

    Just so we’re clear, you don’t think that any of the exceptions allowing warrantless searches/seizures are constitutional (e.g., Terry stops, incident to an arrest, border searches, exigent circumstances)?

  40. Just so we’re clear, you don’t think that any of the exceptions allowing warrantless searches/seizures are constitutional (e.g., Terry stops, incident to an arrest, border searches, exigent circumstances)?

    Please don’t mistake ‘me playing around with the text and trying out ideas’ with ‘me believing XYZ policy’. My point merely is that the plain-text of the constitution presents some hurdles to intelligence gathering when at least one party to a communication is an American citizen. I have no idea how they should resolve out.

    FWIW, I thought that Terry was unconstitutionally broad. Search incident to arrest makes some sense. Border searches are a massive thicket of problems. Exigency is a touchy one, because it is ripe for abuse (“I had to kick in the door, I believed they were attempting to flush their seventeen pounds of marijuana down the toilet! Honest!”)

  41. “But the court ruled that, in the absence of specific evidence that the government is abusing its surveillance powers, the mere possibility of abuse is not enough to invalidate them.”

    So if there is a law that allows secret execution of dissenters, then it isn’t actually un-Constitutional unless there is “specific evidence” that it is happening? Awesome! I feel so safe from those terrorists now!

  42. It’s the idea of deshackling government coupled with the peculiar notion that our rights are enumerated in the Bill of Rights that causes this problem. If government power is increasingly unrestrained, and the specific rights that can limit government action increasingly marginalized or not even recognized at all, is it any wonder that exceptions that you can fly a planet through continue to appear?

    To R C’s point, the whole penumbra line of reasoning was a huge mistake. The Court should’ve pointed to the 9th and 10th Amendments and said that privacy was a fundamental right. Fundamental rights do have exceptions and limits, so pronouncing something to be a right doesn’t require us to escort criminals or terrorists from their homes to their targets.

    I’m wary about declaring everything to be a “right”, because that can get crazy, too, but some things are pretty clearly in that category.

  43. R C Dean | January 21, 2009, 1:58pm | #

    Let me guess – it was in an emanation of the penumbra of “unreasonable”.

    Nope. There’s a link, you know. They invoke a National Security exception – the key word being EXCEPTION. They don’t claim that the search meets the requirements for “reasonable” at all, but that because this is National Security, the government’s need overrides the 4th’s protection. Sort of like the “fire in a crowded theater” exception isn’t based on the idea that speech isn’t being infringed, but that the government can do things that violate the language of the amendment in cases of grave importance.

    See, people, this is what you get when you go all Living Constitution to get stuff you want in spite of the Constitution. You also get a load of shit you didn’t want, in spite of the Constitution. Perhaps Mr. Textualist, who hates those people who get stuff they want in spite of the language in the text, should hew a little closer to the text, instead of just imagining that what he wants is in there.

  44. To sum up: no, this decision had nothing to do with the bad, liberal “living document” view of the constitution, but with the “President is King when we say National Security” jurisprudence championed by certain right-wing lawyers I could name.

  45. Fluffy,

    Well?

    Have you got an answer?

    WHAT IF…any of those things happened?

    Does the government leave the terrorist to his devices, because an arrest would be illegal? (Of course you’re not saying this, I know.)

    My series of questions was meant to demonstrate that we have any number of protections in the law that would prevent you from convicting someone of a crime, if you had no evidence beyond the specific type of evidence that has been excluded.

    If you knew from intelligence work that a 9/11 plot was under way, there would be an obvious benefit to breaking up and obstructing the plot, and in taking direct action against targets overseas. You might not be able to convict a US accomplice without a given piece of excluded evidence, but my point is that this is not an argument, unless it’s also an argument against allowing people access to counsel, against requiring warrants for physical searches, against the priest-penitent privilege, against the right to a jury trial, etc.

  46. I’m not a fan of the national security “exception”, either, but joe is absolutely wrong to present it as a “right wing” viewpoint. It’s the position of every administration. Even Carter took a strong executive stance on national security matters.

    Every significant power needs a check, or we are in danger of some form or other of tyranny. It’s that simple.

  47. Pro Lib,

    OK, fair enough: the national security exception has existed for a long time, and is agreed on by both parties.

    Still, it must be acknowledged at this point that the right has expended a great deal of effort expanding it as widely as possible for the past eight years, to an unprecedented degree.

    When John Yoo was asked if the national security exception means the president could order a child’s testicles to be crushed, he answered that it would depend on why the president wanted to do that – ie, if he wanted to do it for national security reasons, he could.

    That ain’t Carter. That ain’t even Reno.

  48. joe,

    My feeling is that each administration adds badness to the record. In my lifetime, it’s gotten progressively worse, with little improvement.

    That said, 9/11 fucked up everything but good. Whether a Democratic administration would’ve screwed us equally well is a hypothetical we’ll never resolve (I think Gore would’ve pushed many of the same expansions of power, though perhaps not as ineptly as Bush), but the accelerated expansion of the national security loophole during the Bush years is an indisputable fact.

  49. joe, I think your point that the expansion by the right over the last 8 years is right-on. It suggests, in fact, that maybe the problem isn’t even a right v. left one – it’s a Bush v. everyone else problem.

  50. Bush was horrific, but it would be a mistake of the highest order to think that his badness was a historical anomaly. Given enough of an “emergency”, we’re in danger from any administration, because we’ve allowed them to operate with too few checks and very little accountability for too long.

  51. Pro Lib,

    In my lifetime, it’s gotten progressively worse, with little improvement.

    I’d say Ford and Carter moved the ball in the right direction compared to Nixon.

    “When the Prezhident doezh it, it’sh not illegal!”

    domo arrigato, domoarrigato. You’re right – Poppy and McCain and even Reagan wouldn’t have pushed things this far.

  52. The Church Committee and, some would argue, Pappy Bush’s stewardship of the CIA were the only exceptions I could think of, and I think they did as much harm as good. FISA and FISC came out of that, which just meant rubberstamping what had previously been illegal.

  53. joe, my point is that the national security exception, and every other exigent circumstance/emergency exception, is part and parcel of a “living document” approach to the Constitution. Essentially, this approach is results-driven – the Constitution, as written, doesn’t give the results we want, so we must “interpret” it in a way that does give us those results.

  54. Clicked too soon:

    The proper, Constitutional remedy is to amend the Constitution, but this tends to put in stark terms just what it is that we are going to allow the government to do. Wouldn’t want that, apparently, so we just toddle along pretending that the words on the page are infinitely malleable, servants to our desires.

  55. Pro Lib and joe,

    Reagan reigned in intelligence gathering too. The EO that I cite above is often described as expanding intelligence gathering. Within the community, it’s known to have reigned it in. Prior to that EO, many services maintained seperate compartmentalized, overlapping, competeing, and unconstitutional efforts. Intelligence gathering was dominated by turf wars, tit-for-tat bickering, and gross inefficiency. Reagan made them all report centrally, and outlined limits and standards. Credit where it’s due on the GOP side too.

  56. It’s a mistake to keep reading the various rulings as stating there’s a ‘National Security “Exception”‘. They’re ruling that the ‘4th ammendment stops at the water’s edge’ (which may or may not in itself be a good idea, but that’s a different issue). The morass comes from the fact that ‘the water’s edge’ is no longer a clearly defined boundary when it comes to modern communications.

    Governments throughout history have always and everywhere attempted to find out what was being communicated outside their borders, by both allies and adversaries, and without those allies and adversaries knowing they were doing so (especially the allies).

  57. joe, my point is that the national security exception, and every other exigent circumstance/emergency exception, is part and parcel of a “living document” approach to the Constitution.

    No, it’s not. The people who put forward this argument don’t claim any such thing, but that the “War Powers” or “National Security” exception has been there from the beginning.

    What you’re doing is using the term “living document” so vaguely as to be inaccurate, as a stand-in for “constitutional arguments I don’t like.” In fact, the arguments for the National Security Exception, like the arguments for the Unitary Executive theory, are textualist and origninalist.

    I agree that they’re results-driven: which just goes to show that results-driven jurisprudence can come from any point on the compass. It would be a big mistake to think that adherence to any legal theory innoculates one from the possibility of results-driven jurisprudence.

  58. domoarrigato,

    I cast no partisan aspersions–nasty business has occurred on both parties’ watches. Neither is to be trusted–no, strike that–no one is to be trusted with that much power.

    This issue about the president asserting broad rights when it comes to “national security” goes way beyond this situation. That’s what I meant when I was referring to the “exception.”

  59. I’ll take your word for it, domo.

    It’s interesting to me, sitting in the early 21st century, that the intelligence reforms of the late 70s/early 80s era really were bipartisan. Republicans of the era looked at the findings of the Church Report and were genuinely horrified.

    Today’s Republicans, on the other hand, seem to be of a different mind on that. They’re always describing those reforms as some kind of radical left-wing suicide plot.

  60. That hits on something I’ve found odd about the War on Terror. We need extra tools to fight terror, but we didn’t need them to fight the global communist threat. I tend to think there were unseen abuses then similar to those today, but at least during the Cold War, there was a sense that abuses of power were, in fact, abuses. And there was a lot of that “we’re different from the baddies” thinking, too.

  61. Pro Lib,

    I think that the extra tools you speak of relate to something that was discussed in a recent thread concerning the changing nature of insurgencies and terrorism globally. Governments (especially communist ones) tend toward rigid command and control structures, which are, in turn, easy to monitor and understand. As insugent groups decentralized and tended toward non-state funding, they became much harder to monitor and their motivations and intentions became harder understand or predict. Of course, abuses are still abuses, but I do think it’s right to note that the game has changed a great deal in the last 30 years, and that methods must adapt – with proper oversight and respect for Americans rights, naturally.

  62. I understand that line of reasoning, but I don’t get giving up limits on government or important civil liberties when the threat we face is an order of magnitude weaker than that we faced during the Cold War. That’s not to say that we ignore terrorists or roll over for them, but I think we just need to retool to fight them, not change our way of life.

    All the WWIII, IV, V whatever talk is neocon bullshit. Terrorism is a real danger and poses a significant threat on a certain level, but it isn’t getting nuked into dust or even facing internal rebellion.

  63. I would heartily agree.

  64. Well, okay then. Stomps around looking for someone to bicker and argue with.

  65. Stomps around looking for someone to bicker and argue with.

    I think the federal agent in that picture with Elian should be made General Council at the Justice Department.

    Cuz he roolz.

  66. What?

    Too soon?

  67. RC Dean,

    I recognize the “amend the constitution” rejoinder to the “living document thesis” from Ron Paul’s book. I’m not sure I agree. It seems that the Constitution was intended as a overarching set of ground rules – able to be interpreted – albeit I prefer strictly. In your view, is it necessary to amend the constitution to prohibit yelling fire in a crowded theater? That would be strict indeed, and I’m not sure the benefits of doing so would outweigh the costs. For one, the constitution would end up with an aweful lot of amendments, the creating of which would necessarily become easier through habit. not a direction I would choose. Also, loads of things would end up as federal issues that needn’t be.

  68. Broadly speaking, what powers should the government have? The Constitution should be, ideally, a structural document. If a power isn’t covered by the Constitution, then the government doesn’t have it. That’s the way things should work.

  69. Y’know, every time I heard some neocon screech “Don’t you know we’re at waaaaar!!!” I thought about the 3rd Amendment. If we’re truly at war, then troops CAN be quartered in your house against your will, as long as congress passes a law saying it’s OK.

    Just sayin’.

  70. Pro Lib, That pesky 10th amendment. don’t tell me you think that one still applies. *rolls eyes*

  71. Cuz he roolz.

    Unlike the Bart cop, he knows how to hold his weapon. Well, then again, maybe the Bart cop did too.

  72. is it necessary to amend the constitution to prohibit yelling fire in a crowded theater?

    Fraud isnt free speech.

    Yelling fire in a crowded theater is okay if there is a fucking fire. As pointed out on another thread, panic does ensue that easily, yelling “we are going to crash in the river” doesnt even lead to panic.

    I prefer to think of rights as bubbles, they extend until they run into some other right. Its not that one right is more important than another, its that they can never overlap. Yelling fire (in a non-fire situation) is inside my right to life bubble. Thus, it isnt free speech and isnt protected by the 1st amendment.

  73. The federal government has acted as if it has a permanant de facto warrant to surveil the communications of foreign nationals on foreign soil. Under a normal domestic surveillance warrant if John is the object of the warrant and Tony calls him the government does not need a separate warrant on Tony to use the conversation as evidence. Why should it require a warrant if Tony calls Abdul in Caloristan who’s under CIA monitoring? Unless you believe that the 4th Amendment prevents the warrantless surveillance of Abdul?

    Practically, requiring a warrant for Tony’s communication with Abdul is either meaningless or an insurmountable hurdle to monitoring Abdul’s communications. Any warrant will have to be after the fact as the government will have to listen in to figure out that Tony is in fact an American, and whether a warrant is obtained or not is rather meaningless. as What is supposed to happen if the communication is innocuous and not worthy of a warrant? What the government agents have seen and heard cannot be unseen and unheard. To get the warrant prior to reading it requires a level of omniscience on the part of the feds to rival Jehovah. It’s an insurmountable hurdle.

    Also, the purpose of foreign surveillance is not primarily the prosecution of crimes but the prevention of attacks on American interests and people.

    The question is: do you beleive the Constitution allows for foreign surveillance without a warrant or does it not?

  74. “””The question is: do you beleive the Constitution allows for foreign surveillance without a warrant or does it not?”””

    That’s not the question which many of us are concerned. If a domestic phone call is routed through Mexico or Canada do US citizens lose their constitutional protections?

    “””Also, the purpose of foreign surveillance is not primarily the prosecution of crimes but the prevention of attacks on American interests and people.””””

    Sort of like the P.A.T.R.I.O.T. Act was intended to apply to terrorism, yet less than a year later the DoJ started having seminars on how to apply it to local law enforcement.

    I am amazed at how many people have came around to puting so much faith in the honesty of government.

  75. I’m less concerned about the guy falsely yelling fire than the guy willing to trample me out of blind faith.

  76. That’s not the question which many of us are concerned. If a domestic phone call is routed through Mexico or Canada do US citizens lose their constitutional protections?

    What protections do you think the Mexican constitution gives US citizens on US soil?

  77. Any warrant will have to be after the fact as the government will have to listen in to figure out that Tony is in fact an American, and whether a warrant is obtained or not is rather meaningless.

    FISA allows for retroactive warrants to be secured up to 3 days after the fact.

  78. I am aware of that joe, which is why mentioned them. I just do not see any purpose in that except as piece of theater.

    “If a domestic phone call is routed through Mexico or Canada do US citizens lose their constitutional protections?” – TrickyVic

    If that situation was what the court’s decision was about, your angst would make more sense.

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