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Administration Claimed Immunity To 4th Amendment 703

Posted by kdawson
from the unreasonable-searches-and-seizures dept.
mrogers writes "The EFF has uncovered a troubling footnote in a newly declassified Bush Administration memo, which asserts that 'our Office recently [in 2001] concluded that the Fourth Amendment had no application to domestic military operations.' This could mean that the Administration believes the NSA's warrantless wiretapping and data mining programs are not governed by the Constitution, which would cast Administration claims that the programs did not violate the Fourth Amendment in a whole new light — after all, you can't violate a law that doesn't apply. The claimed immunity would also cover other DoD agencies, such as CIFA, which carry out offline surveillance of political groups within the United States."
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Administration Claimed Immunity To 4th Amendment

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  • by adpsimpson (956630) on Thursday April 03, 2008 @08:35AM (#22949978)

    'our Office recently [in 2001] concluded that the Fourth Amendment had no application to domestic military operations.

    I thought the whole constitution had no application to the whole government?

    After all, isn't it just a scrap of paper?

    • by jc42 (318812) on Thursday April 03, 2008 @08:58AM (#22950204) Homepage Journal
      I thought the whole constitution had no application to the whole government?

      After all, isn't it just a scrap of paper?


      No, actually Bush was wrong about that, too. The US Constitution was written on parchment [archives.gov], not paper.

      The Bush crowd just can't get anything right. ;-)

      (To further confuse matters, replicas of the Constitution are commonly printed on "parchment paper", which is a kind of paper treated to superficially resemble parchment. But the original was on true parchment, made from stretched animal skin. A quick google search didn't turn up info on what sort of animal it was made from, though presumably that's known.)

    • by elrous0 (869638) * on Thursday April 03, 2008 @09:13AM (#22950336)

      I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
      • by 3waygeek (58990) on Thursday April 03, 2008 @09:25AM (#22950436)
        However, Bush is somewhat dyslexic. He interpreted the oath to mean that he would preserve, protect, and defend the office of President, and execute the Constitution. This may explain why he considers himself to be a great leader -- he has brilliantly lived up to the oath of office as he understood it.
        • "The legislature's job is to write law. It's the executive branch's job to interpret law."

              --George W. Bush
                  Austin, TX
                  11/22/2000

          This Bushism explains a lot, doesn't it?

          • by Creepy (93888) on Thursday April 03, 2008 @11:19AM (#22951752) Journal
            The irony is Bush has proven time and again that his job is to write law [wikipedia.org] not interpret it. In fact, it's not that far of a stretch to say in some ways we are no longer a Republic, but a elected representative dictatorship. For someone that pushes "Democracy" as much as Bush, he sure doesn't act like it (incidentally, neither did Clinton and escalation has almost been exponential in recent years).

            Executive Orders by a President are law unless Congress overturns them, and both Clinton and Bush have used them excessively [whitehouse.gov] (and that's just Bush's public ones) to dictate policy and bypass Congress. In fact, some such as the wiretapping law were issued as National Security Directives [wikipedia.org] (Bush's name) which don't have to be publicly disclosed (even to Congress, as I understand it). He also issues Homeland Security directives [wikipedia.org], which are basically NSDs with a different name. This dictatorial power is based on loose interpretation of some provisions of the Constitution (see links above).

                I'm not saying the US is a dictatorship yet, but each President seems to abuse executive privilege more and more and I personally think it's time to rein in that power. Bush has issued at least one blatantly unconstitutional law in the federal warrantless wiretapping. Not only that, but he gave the job to an agency that cannot legally operate in the US (the NSA), even though he has an agency that has legal privilege to operate inside the country at his disposal (the FBI).
            • by Anonymous Coward on Thursday April 03, 2008 @11:45AM (#22952112)
              If you won't say it, I will. George W. Bush has systematically dismantled the Constitution. His "executive orders" have been used to override any hope of privacy in this country. He has turned this country so far from a democracy it isn't funny. It really isn't.

              The only reason Bush talks about democracy is to use it as a smoke screen. Far too many people are too stupid to actually look at what he has done and only hear him chant his democracy mantra that they think he is a better presidenter than Ronald Reagan. The only irony there is that those same people think Reagan was a great presidenter too.

              What Bush really means when he talks about democracy in Iraq is an ongoing military presence to protect oil reserves. Instead of doing anything to reduce this country's dependence on foreign oil - or even just oil in general - he is spending us into the poor house and wasting the lives of our servicemen to ensure continued profits and oil supply for all of his buddies in the oil industry - like Dick Cheney and his own father.

              Apparently it is going to only be with hindsight that Americans finally wake up and realize what kind of idiots they have been played for. We walk willingly to the cliff and laugh and party all the way.

              No external enemy could ever have done to this country what the last few presidents and all of their special interests and business buddies have managed.

              The USA is over. It's sad but true. We are extremely deep in debt, we have squandered our military, we have let our infrastructure waste away, we have transferred skilled jobs overseas, and our schools now cater to the lowest common denominator. We worship the worthless who are simply willing to be photographed pantiless and drunk, and far too many in this country would steal you blind if they thought they could get away with it - maybe even kill you just for fun. Don't believe me? Try walking down most any run-down urban street late at night and alone.

              This country has no morals and no intelligence. And we allowed it to happen to ourselves. Like I said, the USA is over. The people looking for scientific investment and educations are going overseas. If that doesn't tell you what's going on, you just keep right on walking to that cliff, laughing and partying, and making fun of the people who mourn this country's death -- because without you, this couldn't have happened.
              • by Creepy (93888) on Thursday April 03, 2008 @01:03PM (#22953096) Journal
                As far as debt goes, yes, the majority of the US population and the government are foolish - attempting to avoid a recession by BORROWING money is the stupidest thing I've ever heard of, but the US as a whole has a debt problem and there are plenty of people out there that think they will win the lottery and it will pull them out of the toilet (I am not one of these, and am still debating whether I should do the right thing and spend the economic stimulus or do the wrong thing and put an extra payment against my mortgage... I'm leaning towards the wrong thing).

                I'm pretty sure the US gets most of its oil from Canada and Venezuela, so your argument makes little sense. There are plenty of other OPEC nations and the largest other exporter is an ally (Saudi Arabia). I seriously doubt oil really drove the attack (and why the hell would we have invaded Afghanistan? nothing but opium there - maybe Bush did it for his dealer buddy from his coke snorting days)

                As far as morals go, I don't think we're any worse than we were. Personally, I don't find the naked body or sex offensive in general (e.g. natural sex vs, say bestiality), so in that respect I'm more European. You can argue objectification, and I agree, in a way it is objectification if it's real or on TV, but why, then, rate a game M if it has ANY nudity (I'm not talking sex - nudity gets an automatic M by the ESRB, which means 17+, but a PG movie can show some nudity)? You're talking about a natural human body shape and no real actors! Some war games get T (Teen) ratings - really, I'm a firm believer that .01s of virtual boobie is going to harm a minor more than a murder trainer FPS (yes, that was tongue firmly planted in cheek).

                    Drug and gang culture is a problem, but you're probably talking about a tiny percentage of the population. I briefly lived in just such a neighborhood as you described (lets say I'd prefer not to ever see the business end of a gun again), but we're talking about a small part of the United States and a small percentage of its people. My parents and neighbors go to church every Sunday too - are they watching porn and doing drugs? I highly doubt it (my dad has never even had a drink in his life). I also know plenty of people that smoked weed (most no longer or rarely do) and have never touched a handgun.
              • by raddan (519638) on Thursday April 03, 2008 @01:50PM (#22953846)
                Yes, the US is in a sorry state. I think we all know that now.

                But, I have also learned over the years that the U.S. is the birthplace of many good things, and those things always came through the tireless efforts of people who refused to believe that they were beaten. I've thought about leaving the U.S. many times-- our northern neighbor is still a liberal society, and the climate suits me better-- but the thing that keeps me here is the thought that if people like me leave (that is, people who care), then this country will be filled with people who don't care. Anger at our government, and at our people, our rotten culture, may serve to provide us with some perspective, but it is not a motivator in the long term.

                We need to return to running our country for the long term, a return to intelligent leadership and real compassion, but the only way to get there is to work for it. Support people with brains, get to know your neighbors, and do good work yourself, and you've taken steps toward making the U.S. a better place. The only reason I can think of for giving up is that it is the easy thing to do, and that's precisely what you chide everyone else for doing, so don't give up.
                • by DeepHurtn! (773713) on Thursday April 03, 2008 @02:48PM (#22954654)
                  and the climate suits me better

                  As a former Montrealer and a soon-to-be Ottawan, I just have to ask -- what the hell sort of monstrous snow creature spawned you?!? ;)

                  Seriously, though, good luck down south. I would like to hope that America can revive its progressive spirit (the one we saw in the 30s and 60s), but, well...good luck. The super-elites have been concentrating power in their hands for 30 years or so now (why does Reagan have such a great reputation down there when he planted the seeds for so many of todays problems?), and it will be hell to pry it out of their hands.

            • by ChronosWS (706209) on Thursday April 03, 2008 @12:20PM (#22952564)

              Executive Orders by a President are law unless Congress overturns them...

              No. From the Constitution:

              Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

              Unlike some parts of the constitution, this one is quite clear. All - not some, but all - legislative powers in the Constitution are granted to the Congress. To wit, some relevant ones:

              To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To constitute Tribunals inferior to the supreme Court; To make Rules for the Government and Regulation of the land and naval Forces; To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof

              The President cannot interpret the law - that's not the function of the Executive branch, it belongs to the judiciary - his job is specifically to enforce it, plus the other powers granted him relating to treaties and bring Commander-in-chief. His job as enforcer of the law extends only to selecting how to enforce it, within the rules laid down by Congress. To wit:

              The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

              Again, all judicial power, not some. Only Congress can establish courts inferior to the Supreme Court, and all courts are inferior to it. The President has no power under the Constitution in these matters.

              Of course all of this is moot when no one puts a check on that authority. However, if Congress has written laws which are full of loopholes or are permissive, it is not the fault of Executive overstepping that those loopholes exist since, if written into law, it is perfectly legal (if nor moral) for the Executive to use them. However, when the Executive steps outside of the legal framework which Congress has constructed, it is the function of the Legislative and Judicial branches to restrain him. This is, in some cases, slowly happening. The question is whether it will occur fast enough to halt the downward spiral.

        • by meringuoid (568297) on Thursday April 03, 2008 @10:07AM (#22950896)
          He interpreted the oath to mean that he would preserve, protect, and defend the office of President, and execute the Constitution. This may explain why he considers himself to be a great leader -- he has brilliantly lived up to the oath of office as he understood it.

          And as a Texan, he's not going to be at all hesitant about executing things, is he?

    • by 192939495969798999 (58312) <.info. .at. .devinmoore.com.> on Thursday April 03, 2008 @09:15AM (#22950350) Homepage Journal
      It's the exact opposite... that scrap of paper IS our government. For them to say that a particular law doesn't apply to a particular government action is completely ridiculous. If anyone should be held to the laws there, it's the government itself, which is supposed to be defined by that document.
      • by morgan_greywolf (835522) * on Thursday April 03, 2008 @10:18AM (#22951014) Homepage Journal
        Exactly. The government derives all of it's powers from the U.S. Constitution, which delineates, specifically, what those powers are.

        Additionally, all of our elected public servants, upon inauguration, take an oath in which they swear to protect, obey and uphold the Constitution.

        Therefore, if Bush thinks that the 4th Amendment doesn't apply to him, These United States should therefore execute him for treason.
        • by ostrich2 (128240) on Thursday April 03, 2008 @11:11AM (#22951630)
          In practice, very few people get executed for treason in the USA. It's mostly a lifetime in prison offense...unless we're at war. Hey wait a minute!
    • by sponglish (759074) on Thursday April 03, 2008 @09:46AM (#22950674) Homepage
      Precisely, The U.S. Constitution obeys the inverse-square law, so I'll leave it up to the math chaps to work out how much less important the 4th is than the 1st (and as for the 28th, it's so unimportant it doesn't exist!).
    • Re: (Score:3, Insightful)

      by ultranova (717540)

      I thought the whole constitution had no application to the whole government?

      After all, isn't it just a scrap of paper?

      That is correct. The US Constitution, as well as any other declaration, only matters if someone is both willing and capable of enforcing it. I very much doubt that anyone can enforce anything against the US Government; therefore, the US Constitution is just a piece of paper, as far as US Government is concerned.

      BTW. What's wrong with Slashdot ? The layout seems to have taken a step fo

  • by Anonymous Coward on Thursday April 03, 2008 @08:35AM (#22949980)
    Isn't the Republican party traditionally the one that raises the biggest fuss about the Bill of Rights?

    Sure would be nice if Colbert or Stewart chose to lampoon this little footnote. At least their shows get noticed more than Slashdot.
    • Isn't the Republican party traditionally the one that raises the biggest fuss about the Bill of Rights?
      No, the Republicans and the Democrats are just about even in raising a fuss over how inconvenient the Constitution is to their goals... oh, wait.
    • by Chris_Stankowitz (612232) on Thursday April 03, 2008 @09:12AM (#22950328)

      Isn't the Republican party traditionally the one that raises the biggest fuss about the Bill of Rights?

      Not really. That depends on what you consider traditional.

      The Republican Party, aka the GOP (Grand Old Party) was founded by anti- slavery supporters. They sold out their base supporters in 1876 in exchange for electoral votes, rejecting Reconstruction ( http://en.wikipedia.org/wiki/Reconstruction [wikipedia.org] ).

      They [Republicans] have been seen as the party of the "rich" ever since, with the Democratic party touting itself as the party of the people.

      This really only proves that politicians (on both sides of the aisle)don't make a fuss over anything unless it is self serving. Ok, that isn't fair to the "good" politicians out there, but IMO they lack the numbers and conviction to make a difference on a grander scale.

      • by tbannist (230135) on Thursday April 03, 2008 @09:21AM (#22950406)
        Yeah, and it'll stay that way until someone figures out how to fix the gerrymandering problem. As long as the parties decide who gets the safe seats, they'll pick the people who can raise the most money and avoid the people who have a spine.
        • Re: (Score:3, Interesting)

          Yeah, and it'll stay that way until someone figures out how to fix the gerrymandering problem. As long as the parties decide who gets the safe seats, they'll pick the people who can raise the most money and avoid the people who have a spine.

          Somewhat ironically the gerrymander comes from Elbridge Gerry, a combination of Elbridge Gerry + (sala)mander.
          He was one of the signers of the Declaration of Independence and the Articles of Confederation. He also refused to sign the Constitution until it included a bill of rights.

          Clearly at the end of the day he was still a consummate politician and for that he will forever be known for gerrymandering.

      • by dkleinsc (563838) on Thursday April 03, 2008 @10:11AM (#22950944) Homepage
        You're missing a very important 20th century development in the history of both parties: the aftermath of the Civil Rights Act. The reason this was critical is that prior to that period, the Democrats were the party of southern white racists (e.g. George Wallace), and undermining that base by creating the Civil Rights Act led directly to the Republican dominance of the southeastern US that continues to this day.
    • by J.R. Random (801334) on Thursday April 03, 2008 @10:38AM (#22951262)

      Isn't the Republican party traditionally the one that raises the biggest fuss about the Bill of Rights?

      Nope, just the Ron Paul remnant, about 9% of the Republican party. The remaining 91% is about war, deficits, and pretending to be some sort of alternative to the Democrats.

    • by vandon (233276) on Thursday April 03, 2008 @11:17AM (#22951712) Homepage

      Isn't the Republican party traditionally the one that raises the biggest fuss about the Bill of Rights?


      No, that's conservatives. The Republican party no longer represents conservative values.
  • Police State (Score:5, Insightful)

    by pbailey (225135) on Thursday April 03, 2008 @08:39AM (#22950018)
    Aren't you guys tired of living in a Police State and a constant state of war - when are Americans going to stand up and demand their rights back - I keep waiting,,,,
    • Re:Police State (Score:5, Interesting)

      by falcon5768 (629591) <Falcon5768 AT comcast DOT net> on Thursday April 03, 2008 @08:49AM (#22950104) Journal
      The thing is, for all the claims of "living in a police state" people who dont live in the US make about the US, for the most part 99% of the population doesnt see it that way, and likely never will. The minute soldiers are marching in the street acting like cops HERE, things will change (and dont say they do now, I live right next to NYC and even AFTER 9/11 it wasnt that bad). But for Bobby Joe redneck in the middle of the US with NO ONE around for miles, the kind of people who make up half the population of the US? They are as off the grid as they where in the 30-40's.
      • Re:Police State (Score:5, Insightful)

        by Anonymous Coward on Thursday April 03, 2008 @09:29AM (#22950484)

        The minute soldiers are marching in the street acting like cops HERE, things will change


        Uhm.. no, they won't. As long as people can go to McD's, Walmart, and watch the latest mindless action flick they won't care. If the non-basement dwelling iteration of Slashdot poster were the norm (which I know, it excludes 90% of us) in our population, we wouldn't have been in this situation in the first place. Remember, the current population here voted Bush in a second time. FAIL.

        The nation is being run like your average silicon valley startup: if we don't have profit within one to two quarters, then to hell with it. We just have those little credit and debt problems on the side, however.

        In addition, our priorities are screwed up. National version: oh noes! Social security will be bust by 2025, but we can fix it if we pass a two percent tax hike now! OMG! No new taxes! But.. we do need multiple squadrons of F-22 that were designed to fight the cold war, since the F-35 and Superhornet obviously aren't enough. We need a missile defense that serves to do nothing except piss off Russia. And, we need a war built on LIES in Iraq that's a constant money sink.

        Don't even get me started on health care, since we're the only first world nation without some sort of formalized universal coverage. Even South Africa is jumping on the bandwagon! The morons who bleat that it's too expensive seem to conveniently forget about that bigass middle layer of PROFIT MAKING organization in the middle: the insurance companies. They aid efficiency? Give me a break. Hell, a good friend of mine in Chile said they've even started a universal health care program down there. Oh hell, I just admitted that I have friends outside of the US. I guess it's time to turn in my redneck card.

        Ah.. the times in which we live. The Democrats have already effectively blown off their own foot with respect to the upcoming general election, and the Republicans aren't even proper Republicans. What happened to the fiscal conservative iteration of the Republicans? All I see now are war mongering evangelical morons. And yes McCain, don't think I didn't see you "get religion" at the last second when it suited you.
      • Re:Police State (Score:4, Informative)

        by kalidasa (577403) on Thursday April 03, 2008 @09:34AM (#22950556) Journal
        Actually, those folks don't make up half the population of the US - it's more like 20% [dot.gov]. But because they reside in states with small populations, and the Senate gives equal weight to all states. In addition, the electoral college has a mixed representation based upon both the Senate and House, which skews things in favor of the states with smaller populations. Finally, two of the smallest states are the first to vote in the presidential primary/caucus system, and because they are small enough for politicians to realistically campaign door-to-door in their states, and because in the later primaries the "momentum" of the candidates helps to skew votes toward those who did well in the earlier primaries, they receive a disproportionate amount of attention from the press and from politicians (especially in campaign platforms, where things like farm policy have a prominence all out of proportion with the actual importance of agriculture in the modern US economy). There's also a deep streak of conservatism in US popular culture, one that leads folks who live in suburban subdivisions to talk about the empty midwest as "the Heartland" and "the real America," when the real America always has been, and always will be, a mercantile empire. So I'm sure that to the rest of the world, those Bobby Joe rednecks look like they are half the population of the US, they're just a small minority. The real America isn't Hope, Arkansas: it's Paterson, New Jersey.
      • Re:Police State (Score:5, Insightful)

        by rnturn (11092) on Thursday April 03, 2008 @10:39AM (#22951270)

        ``The minute soldiers are marching in the street acting like cops HERE, things will change (and dont say they do now, I live right next to NYC and even AFTER 9/11 it wasnt that bad).''

        I won't say they -- meaning soldiers -- are marching in the street. I don't have to. It's more like the cops are marching down the street acting like soldiers. Watch the evening news almost every night and you'll see cops outfitted like the military. Every time someone scribbles something on the bathroom wall at a college campus nowadays, the cops in their SWAT-team costumes are out in force brandishing weaponry formerly only available to the military. Police departments all over the country are spending more and more money on high-tech and military-grade equipment. Companies like Blackwater are rumored to be setting up shop all over the country. The military won't have to march down the streets. There'll be plenty of civil and private paramilitary groups doing the marching for them.

      • Just a funny thought (Score:4, Informative)

        by Moraelin (679338) on Thursday April 03, 2008 @02:03PM (#22954048) Journal
        Just a funny thought: there's a reason why it's called "police state", and not "army state".

        The thing is, virtually no dictatorship on Earth used the army as police, or not for more than some quick squashing some rebellion. The rest of the time, they had the police keep the population under control.

        E.g., the USSR and the Eastern Europe bloc, were _not_ policed by the army. From checking your drivers' license, to knocking your door down and dragging you to Siberia, they had the _police_ do it. Ok, so ironically they called it the "workers' and peasants' militia", but, really, it was a (very oppressive) police force by any other name and filled exactly the place and role of the tsar's old police force. And if you asked any army officer from that part of the world, they'd be very very quick to point out that they're a very different thing from the police.

        Even during the madness of Stalin's mass deportations and executions, it wasn't the _army_ doing that. It was the NKVD, which was an entirely different organization and department. The only relationship they had to the army most of the time was that the MKVD commissars terrorized the army too, not only the civillians. Initially they also handled military counter-intelligence, but mostly because Stalin didn't trust the army enough to let them handle it, and in 1941 the army finally got its counter-intelligence back.

        E.g., at the risk of Goodwinning it, in Nazi Germany, it wasn't the army acting as a police either. Yes, I know, in Hollywood movies you see the stereotype of Wehrmacht soldiers asking for your papers at every crossroad, and think that that's the definition of a police state. Well, no, that kind of roadblocks and soldiers asking for papers mostly happened when you tried to get into military installations or get too close to the front line.

        Most citizens of the Third Reich didn't see the army acting as police either. They had the regular police and the secret state police (Gestapo) doing most of the internal policing. If someone kicked your door in for being a dissident, it _never_ was the Wehrmacht (equivalent of the US Army) doing it. It would be the police, the Gestapo, or in some cases one of the paramilitary organizations that the Nazis created. The SS, much as it tried hard to be and look like the elite branch of the Army, were really a parallel paramilitary organization.

        Etc.

        So basically if you're going to wait until you see something as unlikely as soldiers acting as police, to start asking your rights back... heh... you could just as well ask for Jesus to come back and have a sex change operation.

        Now I'll refrain from commenting on whether you're turning into a police state or not yet. But I _am_ saying, that _if_ that ever happens, heh, you've chosen the awfully wrong symptoms to recognize it by.
  • by Anonymous Coward on Thursday April 03, 2008 @08:40AM (#22950030)
    Wait, then who does it apply to? Foreign governments spying on US citizens? US government spying on foreign citizens? Foreign governments spying on foreign citizens?

    I thought the whole idea behind the 4th amendment was to say that the US government spying on US citizens was off limits. I'd like to hear why they think one of the other three situations is the real reason that pesky little amendment is in there.
    • by Jason Levine (196982) on Thursday April 03, 2008 @09:00AM (#22950220)
      If I'm following their reasoning correctly, the US government spying on its citizens without a warrant would be wrong and would violate the 4th Amendment. However, because their intention is to catch terrorists, it suddenly makes the spying part of the "War on Terror", a military operation, and therefore not covered by the 4th Amendment. It seems that all the government needs to do to bypass all rules and restrictions is cry terrorism. Of course, the fact that this power of the government's would make the whole 4th Amendment pointless (due to the government saying terrorism to justify the spying even if no terrorism occurred) escapes them. Terrorism is the new communism. Either you're with them or you're against America.

      For the record, I'm against America... at least America as they define it. I'm for the America where people didn't have to worry about their government spying on them or having no checks on its power simply because some government official cried out "Terrorism!"
      • Re: (Score:3, Insightful)

        by Anonymous Coward
        For the record, I'm against America... at least America as they define it. I'm for the America where people didn't have to worry about their government spying on them or having no checks on its power simply because some government official cried out "Terrorism!"

        If you're against the American gov't and the erosion of rights, but you're all for the American people and protected rights (and you yourself are American), then congratulations, you're the definition of a Patriot as our fore fathers intended it t
      • Re: (Score:3, Interesting)

        by will_die (586523)
        You are reading it correctly, unfortunatly the summary is just wrong.
        From what is known of the document it was written right after 9/11 to answer the question what could the military legally could do if we the US territory was invaded by terrorists. While unknown the exact circumsatances the paper discusses, it is currently not released, it would make sense that the 4th admendment does not apply if terrorists are sitting in a house and firing on the US military.
        As for what you are discussing with the wir
        • Re: (Score:3, Interesting)

          by NeutronCowboy (896098)
          But that's the point though, isn't it? When do you know that it is a terrorist sitting in a house, firing on the US military? Not just a lunatic who forgot his meds? Even your extreme case can be easily constructed in such a way that no terrorism is involved.

          Here's the problem with the war on terrorists (I won't even talk about the war on Terror): by definition, terrorists look like someone from the general population. Terrorists just have the goal of instilling terror, as opposed to just living their liv

  • That's outrageous (Score:5, Insightful)

    by Nerdposeur (910128) on Thursday April 03, 2008 @08:41AM (#22950036) Journal

    I'm one of those religious, conservative nutjobs that gets mocked on this site, and I find this outrageous. Here is the Fourth Amendment:

    Amendment IV
    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.
    That's been suspended?? Doesn't apply to military operations?? If the citizens have no rights over against the military, why do we have the Third Amendment?

    Amendment III
    No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

    Now I see that there is a difference in the Third Amendment between "in time of peace" and "in time of war," but realistically, this "time of war" against terrorists can NEVER be officially and completely over. There are no official enemies, so there can be no official truce.

    The government is overstepping its Constitutional bounds, and it needs to stop. We have to be careful that we do not lose our identity as a country of freedom via our efforts to protect that freedom.

    • by CastrTroy (595695) on Thursday April 03, 2008 @08:46AM (#22950088) Homepage
      Which is the whole reason for calling it the "War on Terrorism" or the "War on Drugs". It basically gives them the power to do whatever they want, as they can claim that they are in a state of war. The US needs some serious political change. I hope that they elect in somebody competent in November. Although I'm not sure who's running who would actually qualify. Hopefully whoever gets voted in, will be willing the stop the insanity that is, "The War on Terrorism".
      • Re:That's outrageous (Score:5, Informative)

        by Eivind (15695) <eivindorama@gmail.com> on Thursday April 03, 2008 @09:05AM (#22950262) Homepage
        The problem is that you're a two-party state. Or atleast thats one of the major problems.

        The system is such that it is effectively impossible for a third party to play a major role, and the rules are unlikely to change since that would require atleast one of the big two to vote in favor of changing the rules to their own detriment.

        Fat chance !

        Democracies with a multi-party system has MUCH more variation among political parties, and you are much more able to vote your true opinion rather than as in the USA where you may in many situations merely choose the lesser of the two evils.
    • Re: (Score:3, Insightful)

      by Yvan256 (722131)
      I'm sorry but pretty much the rest of the planet already sees the USA as having lost its freedom.

    • by adpsimpson (956630) on Thursday April 03, 2008 @08:51AM (#22950116)

      Have you seen "V for Vendetta?" One of the most telling lines, read over the top of news footage of current and past US campaigns and riots, is "As America's wars expanded, the rest of the world got drawn in deeper and deeper"*

      Not to call a Godwin on George Orwell, but it's a theme that's been around in literature since the second world war, and is now starting to be seen in the real world. In a time of war, unusual powers are granted to government.

      To get those unusual powers in a time of peace, a war must be created. But since conventional wars may be won, you declare it on a concept, series of countries ("Axis of evil") or race/religion.

      After convincing the voting public that this really is as dangerous a threat as a "real" war (after all, the "war on terror" has so far included at least two real wars in the Middle East), the extra-ordinary wartime powers may be granted.

      The constitution is specifically designed to prevent this abuse, but has been so thoroughly swept away by successive governments since it was created that attacks like this are not met with the lynchings they are actually supposed to be met with - the "right" to bear arms (which I personally think is one of the biggest things wrong in the US) is specifically provided to allow protection of citizens from the military.

      *Or words to that affect

    • by Doctor_Jest (688315) on Thursday April 03, 2008 @08:55AM (#22950154)
      And in an election year, perhaps the flap over this memo will actually reach the great unwashed, so that they can see the government for what it truly is.. a self-perpetuating power-hungry cancerous lump on the freedom of the United States and our Constitutional rights. (This isn't about political parties anymore, we've not had a 2 party system in many years... anyone who thinks there is a legitimate difference between the "big 2" parties need only look at the current crop of Democrats who have done zilch to combat the excesses of the Republicans... and have created some of their very own.)

      We have to realize the futility of expecting these assclowns to fix anything. They are all in it for the power and money.

      The current administration and the current Congress are both violating their sworn duty to UPHOLD the Constitution and DEFEND it from all enemies, both FOREIGN and DOMESTIC. Attempting to justify illegal activity by claiming the Constitution doesn't apply turns my stomach.
    • by qengho (54305) on Thursday April 03, 2008 @09:05AM (#22950258)

      We have to be careful that we do not lose our identity as a country of freedom via our efforts to protect that freedom.

      Too late. Bush-Cheney have remade the image of the USA: we are now a country that tortures, snoops on its citizens at whim and overthrows countries on spec. Sometimes I feel like weeping. It will take generations to undo the damage this administration has wrought.

    • Re: (Score:3, Informative)

      by will_die (586523)
      The summary is very poor write up of what happened.
      The name of the document containing the response is entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States." and was written in September or October 2001, publishing date is end of october 2001.
      It was written in response to the question of what the military could legally do if the US was invaded, however the exact instance being described with reference to the 4th admendment is not known; the paper has not be
  • a misreading (Score:5, Interesting)

    by Speare (84249) on Thursday April 03, 2008 @08:42AM (#22950050) Homepage Journal

    See, the whole thing is just a misunderstanding of the phrase, "No warrant shall issue but upon probable cause." It doesn't mean they can't search, it means they don't need a warrant. How silly is that?

    I intended this as a joke, but upon reflection... *sigh*

    • Re:a misreading (Score:4, Interesting)

      by adpsimpson (956630) on Thursday April 03, 2008 @08:56AM (#22950178)

      "No warrant shall issue but upon probable cause."

      Alternatively, it means that the "probable cause, supported by oath or affirmation" must be watered down while "particularly describing the place to be searched, and the persons or things to be seized" must be broadened.

      Eg "I have reason to believe (probable cause) that all communists/terrorists/Europeans (persons to be searched), wherever they may be hiding (place to be searched) hate our freedom.

  • by Qzukk (229616) on Thursday April 03, 2008 @08:43AM (#22950052) Journal
    Usually civil wars begin when a group of people not in power attack the established government, rather than the established government deciding to attack civilians in "domestic military operations", but I suppose there's a first time for everything.
  • Secret Government (Score:5, Insightful)

    by GWLlosa (800011) on Thursday April 03, 2008 @08:47AM (#22950094)
    The part of all this that really gets to me is that the administration feels that they have the right to do all of this in such an underhanded fashion. This is a democracy, they work for the people. If the government really felt that the fourth amendment didn't apply or was somehow holding back effective terror efforts, and that most people would not object to them taking on this extra dimension of authority, there are ways to change that. Amendments can be themselves amended, for example. At the very least, some kind of public announcement or passage of some clarifying law is called for. This kind of thing, where they decide the law doesn't matter, and then they don't tell anyone about it, is indicative of a government that feels itself to be above the people, or, at best, the feel that they 'know what`s good for us'. It may be a '$f-bomb piece of paper'... but the theory of open, participatory government ruled by the people, with oversight, checks-and-balances, and restraint is what this nation was founded on. Given the inability to directly preserve these ideas in a concrete form, we substitute symbols in their place. Its just a piece of paper. Its just a bolt of cloth (flag). Its just an amalgamation of stone and concrete (the White House). But these things represent something greater, some over-arching idea to which we have all subscribed. Nobody, not me, not you, not Mr. Bush, can just go and decide its meaningless because its inconvenient. And the fact that we have to find out about this kind of thing from watchdog-style organizations and not from our government directly is evidence of the idea that there are people in government who have forgotten what its all about.
    • Re: (Score:3, Insightful)

      by elrous0 (869638) *

      At the very least, some kind of public announcement or passage of some clarifying law is called for.

      That's exactly what the Supreme Court is SUPPOSED to be for. Unfortunately, at this point it's stacked with Bush cronies who would probably be cool with it if he started setting up concentration camps for political enemies.

  • The Law (Score:5, Insightful)

    by whisper_jeff (680366) on Thursday April 03, 2008 @08:52AM (#22950126)
    "The law applies to you, not us.

    Sincerely,
    The Administration"
  • by R2.0 (532027) on Thursday April 03, 2008 @08:54AM (#22950142)
    given the breathless nature of the summary, I actually read the RTFA. Some points.

    1) It's a speculative footnote - the memo authors were speculating that the 4th amendment may not apply during military operations in the US proper. The summary takes that and runs with it to its own speculation.

    2) The basis of the footnote was the fact that Congress authorized military operations in the US, and typically the 4th amendment doesn't apply to military operations - if a soldier is going to search a house, his warrant is permanent and engraved into the sole of the bot he uses to kick down the door. Why in the HELL Congress decided to chuck posse comitatus overboard I'll never understand, except ibn light of tehm being a bunch of cowardly pussies who were so afraid of a jetliner crashing into the Capitiol and killing them all that they would do ANYTHING to protect their pampered asses.

  • by erroneus (253617) on Thursday April 03, 2008 @09:01AM (#22950228) Homepage
    The Bush administration long ago has made claims that the authorization to go to war on Iraq authorized a great many executive powers that are "assumed" as part of the authorization. This isn't surprising and is fairly consistent. Prior claims are similar to this one. This is but a grain of sand on top of the huge pile of stuff this administration has put past the people and government of the U.S.

    Soon he'll be out of office and the in-coming president will grant pre-emptive pardons to the outgoing administration and all of its staff and the whole matter will be closed. The time for prosecution and impeachment is nearly done.
  • by RichMan (8097) on Thursday April 03, 2008 @09:09AM (#22950290)
    So anyone still doubt if the great republic has crossed its Rubicon yet?

    http://en.wikipedia.org/wiki/Rubicon
  • by plazman30 (531348) on Thursday April 03, 2008 @09:17AM (#22950360) Homepage
    The Constitution is not a law. It's the framework of how the country operates. It applies to everyone in this country regardless of political position, military rank or accumulated wealth. Unlike laws, which can be written to exclude certain groups, the Constitution applies to everyone in all 50 states, all citizens abroad, and all people in US facilities abroad. To think any differently is treason.
  • by samjam (256347) on Thursday April 03, 2008 @09:25AM (#22950442) Homepage Journal
    The USA sounds more and more like China every day.

    Bush can't spy on his people so he gets their military to do it for him!

    Sam
  • The new equation (Score:4, Insightful)

    by sorak (246725) on Thursday April 03, 2008 @09:34AM (#22950544)
    1. Make the military above the law
    2. Make everything a branch of the military
    3. ?????
    4. Oh crap...
  • by will_die (586523) on Thursday April 03, 2008 @09:38AM (#22950594) Homepage
    Can we please get a good summary on some articles?
    1) The basis for the OP was a footnote found by the ACLU, not as mentioned in summary, in a seperate document. The document that the headline makes reference of is at this time being requested.
    2) The name of the document containing the response is entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States.", this the name given in the footnote.
    3) The document was written at the request of the White House, shortly after 9/11, when they had asked the Justice departmant what could legally be done in response to another terrorist attack on US territory.
    4) The response was with respect to the military only and with terrorist on US territory. Exactly what type of military operation was being performed is currently not known.
    5) It was not used as the legal under pinning for wiretapes and data mining. As has already been known for a long time the allowance for this refered to other laws. 6) The paper was over turned internally, time when done internally is unknown but the easliest known record of statements refutting this paper are from 2003. Additional ones exist from 2006.

  • by brre (596949) on Thursday April 03, 2008 @09:45AM (#22950664)
    King George gave British soldiers broad powers to search homes. The founding fathers wrote the Fourth Amendment to make it clear that in the new nation, that wouldn't fly.


    So the Fourth Amendment is in the Constitution precisely to limit domestic military operations.

  • by plopez (54068) on Thursday April 03, 2008 @10:26AM (#22951120) Journal
    More and more I hear about stuff like this, the more I truly believe that we need to amend the constitution and abolish the office of the presidency. It is too much power in the hands of one individual and all the corruption and abuses that power can create. And power is being more and more centralized.

    See also signing statements which are blatantly unconstitutional. Signing statements are nothing more than brining in a line item veto through the back door, which exists no where in the constitution. Besides, being an elected official and stating "I will only enforce the laws I agree with" is a felony and *should* trigger impeachment. But congress doesn't have the balls to do so, unfortunately.

      The presidency has outlived its usefulness.
  • by iONiUM (530420) * on Thursday April 03, 2008 @10:58AM (#22951486) Homepage Journal
    I see all these posts about how bush has such a low approval rating and what have you. But you know, it takes more than 1 person to do stuff like this. He's not some evil genius sitting in the white house plotting up shit. It takes hundreds if not thousands of different people in the administration to make shit like this happen. So your problem in corruption and rejection of the constitution isn't "bush", it's everyone else too.
  • by Luscious868 (679143) on Thursday April 03, 2008 @11:10AM (#22951620)
    Why don't the Democrats have the balls to impeach Bush? If pissing on the 4th Amendment of the Constitution isn't a high crime or misdemeanor than what the hell is? I realize that Senate Republicans have enough votes to prevent him from being removed from office and I realize that we will be rid of him in January of 2009 regardless, but it's the point of matter.

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