NSA Surveillance Program Verdict

I held off on saying much about this today, waiting to see what developed. Obviously the media would love this story. My first question was why on earth anyone would want the security of America today directed by someone who graduated from college in 1957. Lord, we have to start setting a retirement age for all Judges, right up to the high court.

Anyway, it figures she's just another Liberal idiot courtesy of the Carter administration. The last word on homeland security for this doofus will be overturned.

Patterico has details and there's solid analysis all around at Volokh.

Comments

[Skyboxx]

Dan,

Hold up. We have constitutional rights saying that we cannnot be "searched" without a warrant. They have a number of ways of listening in now. Trust me on this one. There are people who know where the "white bronco" was on a night in June 1994, but it wasn't a matter of national security.

Where is the independent source? Who protects the individual from their own government here? You, me and about 99.9% of American's don't have anything to fear from them listening in, but is it morally right?

Don't get me wrong, I want the war on Terror to move forward. Since the 1972 Munich Olympic mess until now, the agressors have been middle eastern men between the ages of 18 and 50. Don't tell me about profiling. El Al Air, Israel's national air carrier specifically profiles people and they don't have airline problems. No hijackings, no bombs, nothing.

We are using a shotgun (wire taps for all) for the more focused problem. It isn't little ole ladies and portugese people making these plans to destroy America.

Scrap so called political correctness and let our goverment turn the mircroscope on the group of people that are trying to do us in. Yes, some people innocent people will be offended.

I get searched at the airport more often than not, because I have a last name that doesn't fit my image. I am Opey Taylor, guy next door, but my family name traces it roots back to Central America and Europe.

Last week, while traveling its me whose inconvenienced, searched and throwing away bottle water due to what a few are doing.

[rwilymz]

"We have constitutional rights saying that we cannnot be "searched" without a warrant."

Aye, we do. But the same thing applies on our roadways as our airways, yet we have "implied consent", judicially cut from whole cloth in the 50s, saying that just because "Liberty" means the ability to move around as we please, the Constitution never said anything about moving around in cars, so your "Liberty" in cars isn't constitutionally protected.

And every time I bring this up, there's a whole cat-call chorus saying, "yabbut, yabbut, yabbut... you are warrantlessly searched on the roads because doncha know drunk drivers are **dangerous**??"

Well, we have freedom of speech too, but the Constitution mentions telephones and emails right next to where it mentions cars [i.e., not at all], and "doncha know terrorists are **dangerous**??"

The precedent is already there, and that precedent is accepted by the va-a-a-a-ast majority of Americans, and virtually all of those who are now complaining about the government wanting to do the same damned thing it's been doing for drunk driving and seat belt usage to terrorism. Hypocrisy, thy name is War Against Terror Critic.

"We are using a shotgun (wire taps for all) for the more focused problem"

Uh, extremely doubtful. Do you know the manpower that would take? Half the nation would be listening in to the other half. The people complaining are those who believe this fantasy and think that if the guvmint listens for terrorists it'll catch people committing adultery, those who are "theoretically" inconvenienced [injustice anywhere is injustice everywhere], those who are offended by proxy [the ACLU and other such Rights For Some people], and those who are trying to arrange terrorism.

I keep saying this to people: it's not the erosion of civil liberties during wartime we have ever needed to worry about; those liberties lost are regained. It's historically the civil liberties taken during peacetime, that tyrant-nannies like MADD et al have tantrums until they get, that remain with us.

Put an end to "implied consent" and the Sudafed tracking list first.

[old trooper]

Note to the ACLU, ultra liberal left wing Judges that "Legislate from the Bench" without ever having been elected and others who further the cause of "Rights without Responsibilities"...We are at War, the Constitution is not a Death Pact.

We have lost no freedoms or rights but the granting of additional rights or immunities to those who are our sworn enemies, in time of War, is not found either in the Constitution, the Bill of Rights or in the intent of any of the papers of our founding fathers. Those of you who question that should do some homework, do a google search for sharia and see what 'rights and freedoms' our enemies have in store for you, should they prevail.

[xxx]

Letting the government conduct surveillance targetting specific people..not whole random groups of people like drivers...without having to show any level of probable cause to anyone, or tell anyone at all, not even the secret FICA court that was set up to do just this, should be an anathma to anyone who truly believes in the bedrock principles of this country.

There is already a legal, secret system set up to handle these situations.

But, anyone who really believes that BushCo is just conducting survelliance on people who are communicating with those in foreign countries who have actual ties to a terrorist group, rather than simply randomly eavesdropping on communications based on geography and frequency of contact is totally naive. If they could document that these people really had terrorism ties they would have gone through the existing framework because they would have had ample probable cause for such a warrant, and it is highly doubtful this hand picked secret judicial panel is full of a bunch of peaceniks.

This new surveillance program is nothing but a wide net cast, to spy on anyone and everyone that has contact with people in 'suspect' countries or of 'suspect' origin in the hope that by spying on everyone they will get the terrorists, too. But that isn't the way a democratic, non police state does business. It is of course, much easier to find the guilty party when you are allowed to search/stop/question/interrogate everyone without having to show any particular cause.

I'm not sure her reasoning though on the standing of the plaintiffs is going to pass muster with the new Bush supreme court, if her ruling gets reversed it will be on this basis, that the plaintiffs didn't sufficiently prove real harm or that the real harm they have suffered was directly related to the program.

I don't see how anyone can read the decision though and not come away with the clear idea that this program is patently unconstitutional and is exactly the type of executive power that the separation of powers doctrine was created to prevent.

The founding fathers knew very well the result of unfettered governmental power had on those citizens with whom it disagreed, or who it considered to be a 'threat' to national security, since they, themselves, seditionists, traitors, rebels, murdereres of Crown offices, destroyers of Crown property, terrorists and insurgents by today's nomenclature. They created the constitution to prevent the government from rounding up, detaining, imprisoning or even investigating people based on their political beliefs without affording them several specific protections.

Why anyone wants to throw this away on the hope that "the government" will always do the right thing and would never, ever investigate anyone without just cause is beyond me. History shows that this is not how executive power works, period.

[rwilymz]

'x', you're still an idiot.

The 4thAm doesn't differentiate between "random" or "select" when it says "the right of the people to be secure in their persons and possessions ... except on probable cause ... naming the person to be searched and the items to be siezed". Yet random roadblocks violate that continually -- and hang onto your hat! Mid-August through Labor Day is National Violate the Constitution on the Roadways season: be prepared to visit a sobriety and seatbelt roadblock coming to a neighborhood near you!

You are warrantlessly searched at courthouses; you are warrantlessly searched and items siezed at airports -- both long predating the War Against Terror -- wanna buy the only effective nasal decongestant? give your name and drivers license number to the cops so they can track who might possibly be making meth. That is independent of the War Against Terror.

Warrantless searching and tracking. Done every day. And you're rationalizing why it's acceptible. But dammit, if the dastardly guvmint wants to warrantlessly search people who call suspect countries, why, why, why that's a complete violation of the same Constitution that nods and winks at warrantless searches at airports and police checkpoints and drugstores across the country.

ComPLETEly different. Because, because, well, just because.

"This new surveillance program is nothing but a wide net cast, to spy on anyone and everyone that has contact with people in 'suspect' countries ..."

Then it's not a wide cast net, is it?

A wide cast net looks at EVERYbody, doesn't it? If only those phone calls to/from Yemen and Syria and Iran are flagged, then only a very very slim fraction are being hung by the net.

...unless you are suggesting that "everyone" calls Yemen.

"I don't see how anyone can read the decision though and not come away with the clear idea that this program is patently unconstitutional"

And I don't see how anyone can look at that in the context of everything else the government does that warrantlessly searches us and conclude that it is remarkably different from sobriety checkpoints or the shoeless magnetometerings at O'Hare or Hartsfield.

There's a very real likelihood that the appeals are going to conclude that because the government has the authority to warrentlessly search us for booze-breath and hidden nail clippers, they also have the authority to warrentlessly search us for terrorist contacts.

But in the event that the higher courts say, no, you can't warrantlessly search for terrorist contacts, look for a huge increase in litigation over the warrantless police roadblocks and the airport nazi stands. Because The Law without consistency is nothing more than Whim of the Day.

"The founding fathers knew very well the result of unfettered governmental power ..."

Yet it was those same "Founding Fathers" on the original USSC that decided Washington's [the person, not the city] claim of "executive privilege" to do what he wanted was valid. "Executive privilege" has been used ever since, by every president, in myriad ways. To complain about Bush doing what every other prez has done is monumental hypocrisy.

...not that being a hypocrite should be troubling to someone so adept as you at talking out of four sides of his mouth in any given paragraph...

[old trooper]

http://article.nationalreview.com/?q=OWVlOGNiZmIyMmZkYTg2OGFiYzM3ZGU4Nzc0MjFjNzQ=

[xxx]

Drunk driving roadblocks are unconstitutional.
Getting a pat down at the airport "randomly" is unconstitutional.
Being forced to take a breathalizer or lose your license is unconstitutional.
Submitting fingerprints to get a gun permit is unconstitutional.

What's your point? Once we've lost one constitutional right, we might as well just surrender the rest of them?

At least the above mentioned instances are particular in time and you, the citizen, are aware of them when they are happening, warrentless, secret survellance is not the same, since you don't know it is occuring, why you are targetted or anything else.

[rwilymz]

"Unconstitutional" is what the USSC says it is.

None of those things are unconstitutional. They *are*, though, warrantless searches, sometimes siezures, and with respect to submission to a breathalyzer -- which, by the way, does *not* measure the amount of alcohol ANYwhere -- also constitutes forcible self-incrimination.

"At least the above mentioned instances are particular in time ..."

Of course!! That makes all the difference!! If the only time you are magnetometerized is when you pull jury duty and have to go to the courthouse every day for two weeks [the same courthouse where you are presumed innocent until proven guilty] [but only if you are formally accused of something] [because god forbid a common citizen get the same legal presumption of innocence as an accused and indicted suspect], that's completely different from the only time you're phone calls from Yemen being listened to are when you actually get the phone call from Yemen.

Wa-a-a-ay different.

"warrentless, secret survellance is not the same, since you don't know it is occuring"

So ... you're going to say, now, that US Customs agents have no business going through the cargo hold of a cruise ship, through passenger luggage in the warehouse at debarkation, searching incoming cargo ships ...?

Izzat it?

And by the way, you cannot claim that "you don't know it is occuring" any longer.

http://dblyelloline.blogspot.com/2006/01/screaming-of-meemies.html

[xxx]

I would say commercial traffic is a different standard, since a corporate entity doesn't have the same right to privacy as a citizen and the government has and has always had broad powers in regulating commerce.

My opinion, is that it is unconstitutional to search my bags without any reason other than I am traveling on an airplane, going to a concert or whatever the case may be. How that is reconciled with security concerns is a tough call, it would seem to me that rather than "random" searches, that everything should be uniformly searched and any little extras like pat downs that are completely intrusive to the person and the body, should only be conducted with probable cause. The only other time a pat down such as occurs daily at airport would have previously been allowed is if you were about to be cuffed and taken to jail or you were suspected of harboring a weapon or some other illegal item at the time. I don't condone treating all citizens like criminals in the name of 'safety' when the other real, more pressing safety issues related to air travel go untouched. The pure hysteria we've seen in the past two weeks should be evidence enough that we are on track to abuse innocent people, the crazy lady who flips out during flight gets an F-16 escort and is now facing 20 years in prison for having matches and a screwdriver in her purse, the pregnant Pakistani woman's water tests positive for explosives, hmmm, it doens't make me too confident in our 'tests' then if water is testing positive as an explosive, the poor cell phone dudes, one set still facing now federal counterfeting charges, also with possible 20 year prison sentences for taking the cell phones out of their packaging, the feds know these guys cant' afford a lawyer with enough experience in telecom law to plead the technical aspect of their case, they know they will plead guilty to something in return, hopefully for no jail time, again, lives ruined because the gov. didn't want to admit they made the same mistake twice in one week, arresting and detaining innocent men just because they are arabs and had a lot of legally purchased cell phones. Where are the real terrorists that we've caught? NOWHERE. Its the boogeyman, like witches, heretics and commies.

You do not know its occuring becuase you don't know whether or not your calls are being monitored or not, so again, it isn't the same thing. So, while all those other things are unconstitutional and ominous, they cannot come close to the idea of the govenment being given unlimited power to secretly spy on someone in the hopes of getting evidence they are a terrorist without having to show an ounce of probable cause to anyone anywhere.

[Brian]

Dan,

What's up with the crack about the judge who ruled against the Administration in the warrantless wiretapping case graduating college in 1957 and somehow being less than competent to rule on this?

Legendary US Supreme Court Justice Oliver Wendell Holmes, Jr., (Harvard 1861) did some of his best work in the late 1920s, when he was in his late 80s.

In fact, if it wasn't for his opinions on free speech, especially his famous maxim: "If freedom of speech means anything, it means freedom for the thoughts that we hate", bloggers and others wouldn't enjoy their freedom to operate.

[jamie]

I am NOT willing to sacrifice the Constitution because of fear. And especially when it is so TOTALLY UNNECESSARY. The current process for obtaining warrants does NOT interfere with national security. This administration has to be stopped from trampling the Constitution.

And what's with the shot about the judge graduating from law school in 1957, Dan? What in the hell does THAT factoid have to do with ANYTHING? I wasn't even born in 1957, and that remark still pissed me off.

[Robert]

How does making them get a warrant to wiretap alleged terrorists hurt the war on terror?

[rwilymz]

"I am NOT willing to sacrifice the Constitution because of fear. And especially when it is so TOTALLY UNNECESSARY"

I agree!!! I'm not willing to sacrifice the Constitution because of safety, either. If you want to rid the roadways of drunk drivers then get a warrant!! How hard is it to stop a guy you think is drunk, call in for a warrant and have another trooper drive it out?

Wanna inspect me before I get on an airplane? Warrant. How hard could it be? The airlines already know the names of the people scheduled to fly, interstate commerce can regulate them to the point of turning those names over to the feds, who can print out named warrants lickety split. Piece o' cake.

"How does making them get a warrant to wiretap alleged terrorists hurt the war on terror?"

It doesn't. But the point you're missing is that every -- not a few, not some, not most, EVERY -- president has used "executive privilege" to do national security things. EV-ER-Y.

E.V.E.R.Y.

"Executive privilege" violates the strict wording of the Constitution, yes. Sidesteps the legislative. You are correct. But the Courts have consistently said "the prez can do that for national security". They've even sometimes said "the prez can do that for other reasons too".

And that's what this issue ie: executive privilege for national security. The court-held bailiwick of the executive branch, beyond the reach of the legislative.

But now that a prez you don't like is using executive privilege to do national security things during a war you don't like, this prez doing something that E.V.E.R.Y prez has done and has been allowed to do suddenly becomes wrong and, to some, impeachable.

Hypocrisy, thy name is STILL "Iraq War critic".