Re: King Bill Makes a Mockery of Civil Liberties

In article <SLlrf.37303$dO2.18038@xxxxxxxxxxxxxxxxxxxxxxxxxx>,
"MichaelC" <mikecraney@xxxxxxxxxxxxx> wrote:

> "Phaedrine" <Phaedrine.Stonebridge@xxxxxxxxxxxxxxx> wrote in message
> news:Phaedrine.Stonebridge-218C37.14210024122005@xxxxxxxxxxxxxxxxxxxxxxxxxxx
> > In article <qqbrf.47261$6e1.32580@xxxxxxxxxxxxxxxxxxxxxxxxxx>,
> > "MichaelC" <mikecraney@xxxxxxxxxxxxx> wrote:
> >
> > > "Phaedrine" <Phaedrine.Stonebridge@xxxxxxxxxxxxxxx> wrote in message
> > >
> news:Phaedrine.Stonebridge-6875CB.01111524122005@xxxxxxxxxxxxxxxxxxxxxxxxxxx
> > > > In article <vIYqf.46631$6e1.3551@xxxxxxxxxxxxxxxxxxxxxxxxxx>,
> > > > "MichaelC" <mikecraney@xxxxxxxxxxxxx> wrote:
> > > >
> > > > > "Phaedrine" <Phaedrine.Stonebridge@xxxxxxxxxxxxxxx> wrote in message
> > >
> news:Phaedrine.Stonebridge-C9B3B4.12554223122005@xxxxxxxxxxxxxxxxxxxxxxxxxxx
> > > > > > In article <%NUqf.38670$q%.32852@xxxxxxxxxxxxxxxxxxxxxxxxxx>,
> > > > > > "MichaelC" <mikecraney@xxxxxxxxxxxxx> wrote:
> > > > > >
> > > > > <bandwidth snips>
> > > > >
> > > > > He didn't ask me to post anything, you'll note.
> > > >
> > > > I'll note what I said--- that he challenged you: "if you want
> > > > to talk specifics..."
> > > >
> > > > > If this issue has legs, there will be an impeachment. If
> > > > > there is an impeachment, legalities such as those raised by
> > > > > former Atty General Schmidt
> > > > >
> > > > > <http://www.chicagotribune.com/news/opinion/chi-0512210142dec2
> > > > > 1,0,
> > > > > 3553 632.story?coll=chi-newsopinioncommentary-hed>, and in
> > > > > yesterday's letter to Congress sent by Atty General
> > > > > Moschella, will come into discourse. Every act of Congress
> > > > > which justified a warrantless search will be entered into
> > > > > evidence, and every opinion by a Court (Keith, 1972, and
> > > > > FISA, 2002, are the ones Schmidt mentioned -- I have heard
> > > > > others interviewed that refer to a 1982 decision on this
> > > > > matter potentially justifying the taps as well) that the
> > > > > President does inded have this authority to order this
> > > > > activity will be entered, and debated.
> >
> > > > I'm not exactly sure what you're claiming or whether it does or
> > > > does not have legs so, unless you'd care to be more specific
> > > > (please feel free), I'll simply respond that a bevy of legal
> > > > experts have taken much issue with Schmidt. I've posted some
> > > > of that in the last few days but would be happy to look at it
> > > > again with more specificity.
> >
> > > I don't think that doing so would be productive. My interest is
> > > not trying this case on USENET -- my interest is in its larger
> > > implications vis a vis the 4th Amendment, and what's relevant in
> > > that context is simply to say that whether or not the actions of
> > > Mr. Bush are *legal* or not perhaps oughtn't be a grey area, but
> > > it seems to be, due to prior precedent.
> >
> > On one hand you say you're not interested in "trying this case on
> > Usenet" but then you go on to cite anonymous precedent. You can't
> > have it both ways, Mike. I'm interested in discussing the case
> > insofar as particular issues interest us--- not "trying" it. The
> > entire matter is, however, about whether Bush's actions are legal
> > or not. If you have an opinion based on "precedent" as you keep
> > saying, then you should say what that precedent is unless, of
> > course, you don't mean what you say.
>
> Phae -- the list provided by McCarthy doesn't exist in a vacuum. For
> each item, either (1) Congress passed a law permitting the
> warrantless search, or (2) law enforcement took an action, either on
> their own initiative, or ordered by an Administration, which was
> subsequently upheld in Court, wherein it was determined that for the
> public good, the warrants provision of the 4th was not to apply.

Not that I completely mistrust you but you have not documented any of
that. This was not a legal opinion that McCarthy wrote. It was an
hyperbolic op-ed piece so I think your reliance on him is misplaced. I
am as concerned about the erosion of our privacy rights as you are---
maybe even more--- but the notion that searches performed with one's
consent, like your airport example, violate the 4th amendment strikes me
as kind of silly. The key word is "unreasonable" and I think you're
ignoring that here.

> Personally, I don't see the value in going down his list, one at a
> time, and searching out the case law that permitted it (which would
> be the actual precedent). If you see the matter differently, please
> explain.

If you don't see the value, fine. But don't expect me to buy into
conclusions based on undocumented claims in an op-ed piece.

<bandwidth snippage>
> > > > > Right now, this issue is all the way across the board. You've
> > > > > got outraged Republicans and Democrats, and supportive
> > > > > Republicans and Democrats (such as Schmidt above, and Rep.
> > > > > Jane Harmon who is Sr. Dem on the House intel committee and
> > > > > knew about the taps
> > > > >
> > > (http://www.baltimoresun.com/news/nationworld/bal-te.spy23dec23,1,
> > > 3547 193.st
> > > > > ory?coll=bal-nationworld-headlines).
> > > >
> > > > I don't think that is correct with regard to domestic
> > > > surveillance.
> > > > The article goes on to say this:
> > > >
> > > > "Harman also said, however, that she was "deeply concerned by
> > > > reports that this program in fact goes far beyond the measures
> > > > to target al-Qaida about which I was briefed."
> > >
> > > Quite so. As I have understood anecdotally, the program is
> > > *supposed* to (1) define phone numbers associated with AQ abroad,
> > > and (2) kick on the tape recorder if anyone from the US calls
> > > those numbers...
> >
> > The point is, here, that we do not know if that is what _Harman_
> > heard in the "briefings". We cannot assume that what you heard
> > anecdotally is what she was told. Further, other legislators have
> > indicated that they were unaware the program had any domestic
> > implications at all. Moreover, I have not read in any reliable
> > source that this was the specific purpose of the program. I am not
> > saying I do not believe you. I'm just saying that I've seen no
> > official explanation and I am not sure there's been one given the
> > secrecy.
>
> I concur. As I stated, "this is my current understanding of the
> program." My position may lurch one way or another should the
> specifics come out.

Mine too. It's a good thing AFAIAC, for the Nation to have some serious
discussion on the 4th amendment and related matters.

> > > ...As I understand it, that's it's extent. If the program HAS gone
> > > past those boundaries, Harman is quite right - it OUGHT to be cause
> > > for concern. If, however, the "reports" that she has heard turn out
> > > to be speculation and without merit, then the program stands as is,
> > > and must be judged on that basis alone.
> >
> > None of that speculation goes to the FISA requirements or why they were
> > disregarded.
>
> Again, **as I understand it**, the program involves the "autopilot"
> recording of domestic calls made to a known AQ number of interest. I have no
> idea if this is a couple of calls a week, or dozens of calls per hour. The
> only situation that I could see that would credibly allow the Administraiton
> to state "FISA doesn't work for this program" is if they're listening to a
> huge volume of calls. But, regardless of the situation, I too would like to
> see more explanation around this question.

Indeed. I'd really like to know that names they "just happen" to run
across, and that might have some political usefulness, are not leading
to searches under the false pretense of looking for terrorists. There's
just far too much history in our country of this kind of thing for one
to be able to just shrug that off.

> > > > > ...There also exists a wealth of precedents showing that
> > > > > Administrations of all parties, and Congresses of all
> > > > > parties, often and almost regularly ignore the warrant
> > > > > provision of the 4th Amendment when either has an objective
> > > > > in mind.
> > > > > (http://www.nationalreview.com/mccarthy/mccarthy.asp).
> > > >
> > > > McCarthy cites no legal precedents per se and he certainly
> > > > makes no reference to either "Administrations" or to
> > > > "Congress"--- let alone that either have regularly ignored
> > > > warrant provisions as you stated. He merely enumerates a list
> > > > of actions, none of which he demonstrates to be material to the
> > > > case at hand and few of which are even relevant. His is not a
> > > > legal argument. It is merely a list of seeming ironies,
> > > > ignoring inherent complexities and explanation, which are
> > > > similar only in that each contains the word "warrantless",
> > > > whether meaningful or not, and the phrase "American citizen".
> > > > I could add to the list by saying "Conduct a warrantless search
> > > > of an American citizen's property looking for termites" and
> > > > that would fit the list as well as some of the other items; but
> > > > it would also be immaterial.
> > >
> > > Let me comment on the McCarthy list below, because my thoughts on
> > > it dovetail perfectly with where you've placed the 4th Amendment
> > > reference.
> >
> > > > For the sake of others possibly reading this, here is the
> > > > entire, one-sentence, Fourth Amendment:
> > > > <<<<<<<<<<<<<<<<<<<<<<<<<<<<<<< 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.
> > > > <<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<
> > > >
> > > > On the face, it does seem rather clear, does it not?
> > >
> > > Yes it does. In fact, one wishes, at some level, we could get a
> > > ruling from the SCOTUS that says, in essence, WHAT PART OF
> > > "WARRANTS SHALL ISSUE" DO YOU PEOPLE NOT UNDERSTAND???????
> >
> > I'd have to ask what specific Supreme Court rulings are behind your
> > question? Exactly who are "you people"? OTOH, I still do not see
> > how any of that is relevant to the President sidestepping FISA.
>
> You're reading too much into a rather facetious comment on my part.

I just don't want to miss anything. ;)

> My point is simply that there are indeed warrantless searches that
> are permitted in our country, despite the warrants provision of the
> 4th, thus creating a rather potholed legal landscape in this regard
> -- which could be cleaned up if the SCOTUS ever said -- "No
> warrantless searches. Period."

Well like I keep saying, the 4th does say "unreasonable". Judgment is
always required.

> > > Without such a ruling from SCOTUS, the branckes of the government,
> > > illustrated by McCarthy's list....
> >
> > Sorry but McCarthy's list illustrates no such thing. This is the same
> > guy who argued that the torture memos were a manufactured scandal (not)
> > and that the McCain Amendment requires mirandizing alleged terrorists
> > overseas. He is also widely known to have an extremely broad view of
> > Executive powers--- as long as the president is a republican. His list
> > cites no legal precedent at all. I'm not saying there is no legal
> > precedent behind the items on his list. I'm saying he does not mention
> > them and it is far too much of a stretch to assume that each item on
> > that list represents a violation of the 4th amendment or that it is in
> > any way material to the FISA matter. As with my termite inspection
> > example, he merely uses the phrase "warrantless search" in each one and
> > leaves the reader to assume whatever. I am not going to argue
> > McCarthy's list given its red color and fishy smell, and since neither
> > you nor McCarthy has demonstrated any material relevance to the case at
> > hand.
>
> It's a long list, some items are convoluted, some are simple. I tend to
> doubt that the entire list adds up to precisely *zero* vis a vis the current
> wiretap controversy. To me it is a set of datapoints illustrating a rather
> cavalier attitude on the part of all branches of government towards the 4th,
> which is what McCarthy's purpose was. (He is also widely known to be a
> Constitutional Originalist/Original Intent sort of fellow, if memory
> serves.)

Again, I simply don't see the relevance to the FISA issue unless you are
trying to argue that FISA is illegal pursuant to the 4th Amendment.

> > > ...seem to ignore the warrants provision of the 4th whenever
> > > anyone can make a germane argument that the public good is at
> > > stake. For example: I fly three times a week. Thus, I am searched
> > > by the US goverment, without probable cause or warrant, 6 times a
> > > week, and perhaps up to 12, if my luggages is chosen for
> > > screening. (At least, when the airlines were paying for the
> > > screeners, it could be argued that they were private businesses
> > > legally screening who they chose to do business with.)
> >
> > That is as ridiculous as so many of McCarthy's list items. You
> > have a choice. You need not travel. The government is not
> > conducting a warrantless search of your property. You are giving
> > consent to have your property searched by standing in line.
>
> Where's the probable cause?

Irrelevant. No one is forcing a search on you. You are electing to be
searched since it is your right to not board the plane.

> ...Back to the 4th -- the warrants provision
> *includes* probable cause as the necessary factor in obtaining a
> warrant. So, even if an action (standing in line) is a consent to
> being searched, the fact remains that no probable cause exists,

The 4th is irrelevant if you give your consent so "probable cause" does
not come into play.

> ...and thus, according to the 4th, the warrant should not be issued.
> Ergo, I *ought* to be able to say "no thank you" to the seach, pass
> security, and board the plane.

Then praytell why would you think the airline doesn't have the same
right to say to you, "No thanks" and turn you away?

> Now, I have no problem with being searched, you understand. It is a
> concession of my civil rights that I voluntarily make for the
> purposes of security and public good.

Exactly. *You* make the choice. It therefore has naught to do with
unreasonable search and seizure though you might attempt to argue
coercion.

> But they're still my civil rights.

Sorry, you need a new example.

> > Argh. In case you hadn't
> > noticed, there's a law here called FISA that is at the heart of this
> > issue. I have not seen the Bush Administration claim that it in any way
> > contradicts the US Constitution. Bush did not go to Congress, even in
> > executive session, and say, "Gee folks, in view of terrorism, the FISA
> > procedure needs more than a bit of tweaking". Instead, neither Bush nor
> > anyone in his Administration said a damn thing about problems with or
> > the need to revise FISA and just went ahead and broke the law. Bush
> > publicly admitted that he extended his warrantless program over 30
> > times. To argue that what he is did OK because you get searched in
> > order to get on a private plane defies reason. And if that is not what
> > you're saying, then what in the heck are you saying?
>
> You're taking my statement too far. My *point* was simply that the
> travel/search situation is other instance of a situation which is simply not
> kosher if one demands takes a literalistic read of the 4th. No probable
> cause, no warrant, no warrant, no search, and I ought to be able to go about
> my business (in this case, get on a plane) without harassment or limitation
> from the goverment as represented by the TSA. The fact that I could *choose*
> to not travel by air is not germane to the issue.

I just can't imagine why you think a search for which you consent
triggers a 4th amendment bruhaha.

> Constitutionally, I ought
> to be able to say to the TSA prior to the checkpoint "do you have reason to
> believe that I am a threat to security?" If they say "no sir", then I ought
> to be able to walk right by them and get on my plane. By a pure read of the
> Constitution, I am not a matter for their concern.

> > > > But I have yet to hear from the Administration a single,
> > > > specific explanation for any of those alleged rationales. Like
> > > > specifically why is FISA too inconvenient? What makes the
> > > > President think he is above the law in this circumstance and
> > > > why that is even prudent? In view of Plame, #3 is laughable.
> > > > Exactly how does thumbing his nose at FISA do the public good?
> > > > I'd really like to know the answer to that and so much more.
> > >
> > > Sure. To go down your list, I think that the above describes why
> > > FISA is inconvenient, but that doesn't explain why the admin
> > > didn't CYA by asking for a FISA amendment targeted to this
> > > operation.
> >
> > I don't. I have yet to see a cogent reason why FISA is so
> > inconvenient. I've only seen extreme generalities and a lot of
> > sidestepping. When one of these phone traces reveals a potential
> > terrorist connection _over and above_ a single data point, why
> > can't FISA be triggered then? And if it was a bit late according
> > to the current law, wouldn't that have been better than never
> > triggering the FISA Court at all? And that is precisely the kind
> > of thing that makes one wonder just what it is the Administration
> > is attempting to hide.
>
> I expect a more detailed answer to this question is forthcoming.
> Congress, from both sides of the aisle, will be most interested in
> this question. As previously stated, I doubt if many (other than the
> HARD right and the HARD left -- this is one of those situations that
> creates strange bedfellows) have a real problen with the idea of
> listening to known AQ numbers overseas, and I believe that most will,
> like the Admin, want to know who is calling that number. So, they;ll
> be asking this question, plus the logical followup, which will be
> something like "well, if you needed extra authorization for such a
> reasonable program, why didn't you tell us, and don't give us this
> "leak" stuff -- the issue would have come up through the intel
> committees, and they're used to dealing with black material."

> > > So, for the most part, your list of questions is the same as
> > > mine. It seems that if you have a program that 9 of the 11 intel
> > > committee members you are discussing the matter with are OK with,
> > > getting FISA revised to include the action would be a slam dunk,
> > > *unless* doing so had to an act of Congress (you'd get a leak for
> > > sure, in that situation.)
> >
> > If leaks from the Congress or White House were justification for
> > leaving either out of the process, surely this would have resulted
> > in a National crisis a long time ago. It hasn't ever been an
> > excuse before and it isn't one now. Both Houses can do executive
> > session with the Administration. They have all manner of
> > procedures for this kind of thing. You haven't said anything to
> > convince be that leaks would necessarily be so probable or
> > unavoidable.
>
> Yea, you're probably right, now that I think about it. I was thinking
> in terms of how so many Congresspeople seem to have no objective
> other than to sink this President, but there isn't a huge flow of
> confidential material leaked out of there, and I doubt if the
> majority of Congress would have much patience with anyone who
> definitvely leaked a critical black program just to make a political
> point. (One wonders if we're seeing an example of that here, but time
> will tell.)
> >
> > > > > So, to me, this is about the common and regular abrogation of
> > > > > the 4th by politicos of all stripes.
> > > >
> > > > You have yet to show "common and regular abrogation". You
> > > > can't, on one hand, cite the 4th amendment but on the other
> > > > resort to an almost purely rhetorical/narrative list like
> > > > McCarthy's.
> > >
> > > As I see it, CONGRESS voted to permit warrantless searches of
> > > people entering airplanes, and of their luggage.
> >
> > You have yet to demonstrate that airline searches meet the
> > definition of unreasonable search and seizure under either FISA or
> > the 4th Amendment, let alone that Congress made a specific vote for
> > "warrantless searches" on any of the items on the list. If you
> > give someone permission to search your things, that is not an
> > invasion of privacy. Sorry, but I think you've allowed yourself to
> > fall victim to McCarthy's hyperbole and undocumented assertions.
> >
> > > ...CONGRESS voted to permit warrantless searches of businesses
> > > engaged in the legal trade of firearms. CONGRESS voted to permit
> > > warrantless searches of by the Coast Guard of private vessels.
> > > And the list goes on. CONGRESS, therefore, *cannot* make the
> > > argument that warrantless searches are expressly forbidden in all
> > > cases by the 4th. They have lost the moral (and probably, the
> > > legal) authority to argue that point. There are, as we have
> > > discussed above, *OTHER* areas where they can argue that the
> > > Administration has overstepped boundaries into illegality,
> > > perhaps. But the "violation of the 4th" argument has no legs,
> > > since the body making that point passes laws that violate the 4th
> > > all the time.
> >
> > Using McCarthy's logic, I suppose we can dispense with all property
> > rights and revert all property to the state as a result of the Kelo
> > decision. Using McCarthy is seriously faulty logic based on
> > assumption rather than fact. None of these 4th amendment, search
> > and seizure, or FISA issues is that simple.
> >
> > > > > ...This *ought* to touch off a national debate on whether or
> > > > > not the 4th means what it says, or whether or not we decide,
> > > > > as a people, that we must intentionally give up some rights
> > > > > for security.
> > > >
> > > > So far, I have not seen a single person demonstrate that the
> > > > President has the legal power to just waive any statute
> > > > predicated on alleged war powers in a so-called "war" his
> > > > Administration has estimated might last for decades or more or
> > > > that such a "war" was what the Framers and Judiciary had
> > > > envisioned when addressing "war powers". Nor have I seen a
> > > > single legal argument or precedent that the 4th amendment does
> > > > not mean what it says. Saying that we must prove it means what
> > > > it says seems kind of convoluted, but perhaps you meant
> > > > something else.
> > >
> > > No, it *is* convoluted, but that is indeed the point I am making.
> > > Is it too much to ask to ask the SCOTUS to say "the 4th means
> > > what it says" and then employ the admittedly (but created as such
> > > intentionally) difficult amendment process to cite instances
> > > where warrantless searches are required? I mean, isn't that the
> > > way the Constitution was supposed to work?
> >
> > While I would admit that there are certainly areas of concern
> > regarding the 4th amendment, using McCarthy's hyperbolic op-ed
> > piece as a basis for deciding that the 4th Amendment has already
> > been flushed away is imprudent enough. And then using that as a
> > justification (?) for Bush's thwarting of FISA is simply nonsense.
> > You've gone on about it long enough that it seems to be your entire
> > case. It's so very broad that you might as well say that since the
> > Constitution having been amended so many times is imperfect, we
> > might as well just ignore the whole thing, dispense with the
> > Judiciary and Legislative branch and let the president decide from
> > moment to moment how to run the country. Surely you can't mean to
> > make such a case. You'll have to narrow it up a lot and keep FISA
> > materially in this discussion to even begin to convince me.
>
> My original statement was that it *appears* that there is precedent.

You made undocumented references to "precedent" and "case law" based
entirely on Andrew McCarthy's op-ed piece which cited absolutely nothing.

> I sourced that statement mostly from "experts" arguing both sides of
> the matter on CSPAN, CNN, and Fox.

You did not share that with me. I have seen NO expert argument in
anything you've posted in this thread.

> ...I couldn't help but notice that
> the "President has the right" crowd was impressively specific as to
> their reasons why it was legal than was the "President doesn't have
> the right" bunch. But, I didn't take notes, so I can't comment more
> specifically at this time. It's just my sense of the matter.

How conveeeeeeeeenient. :)

> > Nonetheless, it appears we agree on a great many things here.
>
> Yep.
> >
> > Merry Christmas!!!
>
> U 2. Five-year-old gets a shiny new bike this year. You know how much
> fun THAT is (especially when you live in Houston, and she doesn't
> have to wait until April to ride it.)

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