Administration Claimed Immunity To 4th Amendment 703
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."
a misreading (Score:5, Interesting)
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*
Comment removed (Score:5, Interesting)
Re:That's outrageous (Score:1, Interesting)
Will it happen? It's very unlikely. "Deh tererists" might get us if we don't suspend the Constitution, or at least ignore the bits we don't like.
Summary sucks...again (Score:5, Interesting)
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.
Re:a misreading (Score:4, Interesting)
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.
Re:That's outrageous (Score:1, Interesting)
He has pledged to personally review the constitutionality of this administration and revert to a constitutional balance of power.
Re:That's outrageous (Score:2, Interesting)
!News (Score:1, Interesting)
Military (Score:2, Interesting)
There are lots of ways the constitution doesnt apply to the military. Soldiers do not have a 1st amendment right, for instance. They cant exercise free speech to insult a superior officer. They cant exercise a right to assembly if told to go somewhere else. Etc. The constitution is a civilian document, the military cant be bound by it.
As I said, this isnt what I believe, merely the argument currently being passed around by the government and its people.
Re:Who does it apply to? (Score:2, Interesting)
Re:Who does it apply to? (Score:3, Interesting)
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 wiretapping a read of any of the actually papers allowing it, not summaries from various hate groups, shows that the administration used other laws and in multiple cases said that the 4th admendment does apply to what they were doing.
Re:perhaps the slightest bit bitter (Score:3, Interesting)
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.
Re:Police State (Score:5, Interesting)
Now there's a good way to encourage nuclear stockpile reductions!
Re:a misreading (Score:1, Interesting)
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.
Lets see....
One of the key words here is "Unreasonable". That's a mighty big word. What does it mean?
Is it unreasonable to listen in on a conversation during a time of war? The goal of this act is not to prosecute the people talking, but to gain militarily useful information. The military doesn't plan on arresting people, no their job is to kill them and to blow up their toys.
Now let us suppose that the NSA is tapping in on a call that originates overseas, shall we? The endpoint could be in, oh say Detroit. These taps are generally automated and being run through filters. Even if this is a number that has been flagged, you aren't going to have someone sitting their with headphones waiting for that call to come in.
So the two people are talking and one of them uses a keyword that the filters trigger on. Ok, the computers start digging in and send up a flag. Meanwhile the two people use more key words. The computer then ups the priority.
Now it may be hours, days or even weeks before someone actually listens to the recordings. When they do, a human has to make a judgment call. The human may bring in others to assist.
Now, for the sake of argument, the two people in question were planning a straight forward bank robbery. A simple criminal act with no political or terrorist overtones. Since the NSA is not a law enforcement agency, they would turn this information over to the lawyers who would see if it could be used or not.
So the bank gets robbed, and nothing is done to stop it.
Now for a minor change.
The human listens to the recording and determines that there is a nuke set to go off in NYC. Their goal again is not to arrest people, it's to stop that event from happening. They contact proper Law Enforcement and the device is stopped, terrorists get dead and millions of lives saved.
Would you consider the latter scenario to be an "Unreasonable" search?
Discuss and debate please.
At risk of sounding like a whacko (Score:3, Interesting)
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.
Re:perhaps the slightest bit bitter (Score:5, Interesting)
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.
Re:Who does it apply to? (Score:3, Interesting)
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 lives. As a result, arguing that someone is or could be a terrorist is the same as arguing that someone is doing something that makes people afraid. People are afraid when there's a crazy person badgering them on the street. They're afraid of people who look different. They're afraid of all kinds of things that really have nothing to do with Al-Qaeda. But conflate the two, and suddenly everyone is a terrorist suspect.
The danger is really in how terrorism can be applied to damn near anything, especially before anything has actually happened.
Re:That's outrageous (Score:2, Interesting)
1) remove armies from around the world; restrict your armies for your defense only.
2) dismantle NATO.
3) work in the context of the UN organization.
4) study history and support the right view historically (in cases of Israel vs Palestinians, Turkey vs Cyprus, Tibet vs China, Greece vs Macedonia etc).
5) stop interfering with countries of the former Soviet Block.
6) dismantle Guantanamo.
7) recognize the International Court of Justice.
8) sign the Kyoto agreement and act on the environmental issues.
9) improve social welfare.
10) stop interfering with South America countries.
11) minimize weapon production.
12) start a military campaign against drugs; burn all the drug-producing fields around the world (the ones that your satellites know about).
If you did only half of the above, your image would improve in a minute.
Re:Real Texans keep their word. (Score:5, Interesting)
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).
Re:Police State (Score:2, Interesting)
Re:perhaps the slightest bit bitter (Score:3, Interesting)
Incidentally, maybe it's time to resurrect the Whigs, despite the silly name - their ticket was based on Congressional power over Executive power and both the Republicans and Democrats have strayed deeply into executive power over Congressional.
Re:No its the document that allows them to govern (Score:3, Interesting)
It was the states that originally ratified the Constitution, which they only could have done if they were sovereign. Some people believe that, since the states had sovereignty to enter into the Constitution then they also must have sovereignty to leave it. But when South Carolina (and the rest of the South) actually tried to exercise that sovereignty, Lincoln made war on them and forced them to recognize the sovereignty of the Federal government instead.
Before the Civil War, the Federal government had very little power and the individual states had quite a lot; after the Civil War it was the opposite, and the balance has only continued to further shift (particularly under FDR) since.
Re:Only the 4th ammendment? (Score:3, Interesting)
I understand the romantic appeal of 'retaining the right for armed rebellion'. But that didn't work in Pennsylvania. It didn't work with the Confedercy (where they did have 1/2 the army.) And that was back when anyone owning as dangerous a weapon as they want was a valid option.
Nowadays, there is no way I trust any individual with a weapon of mass destruction. Or an anti-aircraft missile. Or a gernade launcher. Or a machine gun. The potential damage an unhinged person could do is huge.
So, if that justification for the second amendment is obsoleced, then the only real justifications are hunting, protection, and for sport. Which makes me feel fine tolerating pretty restrictive gun control.
Re:Only the 4th ammendment? (Score:4, Interesting)
Not all rebellions have to be a nationwide, overthrow the federal government type. The last successful armed revolution was in 1946 in Athens [constitution.org], Tennessee [americanheritage.com].
I could see someone supporting an amendment revoking the second amendment. But are you really ok with laws that go against the Constitution of the US? Just because gun laws don't bother you personally, they are still a violation of our explicit legal rights in the same sense that warrantless wiretapping is.
Re:No its the document that allows them to govern (Score:3, Interesting)
Re:Secret Government (Score:2, Interesting)
I'd love to go to another country and beg for asylum, but the anti-terror rhetoric has other governments dreaming up asinine power grabs of their own (I'm looking at you, UK, Japan).
Re:the big threat keeps them quiet (Score:3, Interesting)
In any case, all that implies that someone at or near the top has an interest in the attackers not being found. Your choice of whether they are involved or just covering up atrocious incompetence.
Re:Police State (Score:3, Interesting)
There is the beauty in the theory of the US style of goverment, basically you don't need military force to take over the local geography. You can politically take over the local and state govements. Your local city can tell the state to f-off about education requirements, or a sufficiently strong state goverment can tell the feds to f-off, as quite a number of states have for the whole Real ID act. Another case was the http://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_Act [wikipedia.org], but that eventually went through when Louisiana finally ended up caving in nearly a decade later. I expect the Real ID to go much the same way, a few states will hold out for a few years until they see its pointless.
In theory though, its possible, the problem has been quite a number of supreme court decisions over the last 100 years that opened the door for the feds to have leverage over the states that simply should never have happened. In some cases the results have been positive (think EPA) but they damage the system in terrible ways. To do it right the EPA, social security, etc should have been constitutional admenments but there have never been sufficient political power to ram those through, and if there had been i'm sure a number of even uglier things might have gotten in too. In the end we need a new constituion every once in a while, but the result if someone were to write it today would be truely be a police state. It seems impossible for anyone to say, sure thats an ugly crime but trying to close all the loopholes will do more damage than allowing one or two people to get away with it. Instead we get knee jerk reactions to 9/11, sex offenders, drug users, etc because no one is willing to stand up and defend them or have more nuanced discusions about paricular cases. Instead we have these legislators who have unrealistic views of real situations stitting in ivory towers having BS views of the world, being pushed by a population that can't even descibe their system of goverment to a 3rd grade child.
Re:That's outrageous (Score:3, Interesting)
Welching on our obligations to foreign countries isn't going to help anything. In particular, our protection of Japan and South Korea has done more to keep East Asia peaceful than anything else.
With due respect, I think we already do these things.
Fair enough.
No thanks. As corrupt as the American government can get, it doesn't match the corruption of the UN; leaving our government under the jurisdiction of a corrupt foreign entity is a bad deal and we're shocked that other countries do it.
Fair enough.
Recent history aside, we've always done this in our own way.
When's the last time we've interfered with a South American country, aside from our anti-drug efforts?
Yes, I'm sure lots of folks around the world would like that. Should we disband the military and send you all nice invitations to send your troops to Washington?
We're doing this and it needs to stop.
Re:Real Texans keep their word. (Score:4, Interesting)
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.