Protection against UNREASONABLE searches - what then is reasonable about secret roving wiretaps, where there was no indication or suspicion of nefarious activities?
Presumption of innocence - Where is the presumption if people can be surveilled and records kept, when they haven’t done anything yet? It would seem to be more of a “we know he’s guilty of something and we’re gonna prove it”. Further it would seem that “security” has outbalanced privacy.
Various degrees of suspicion - By using roving random wiretaps, we take a shortcut right past the niceties. Everyone is suspect. That’s why we spy on them. It’s a “Can’t trust nobody” attitude.
Probable cause - That is one of the basic principles. There has to be probable cause. The police can not search you, your home, your car, or even your garbage without a reason. Random searches are right out. There has to be a reasonable suspicion, a probable cause.
We have sidestepped all of that. With random and roving spying, there is no need for reasonable suspicion, probable cause, presumption of innocence, or reasonable respect for privacy. In short, all these are a thing of the past. They have all been “cancelled” by security. According to the post 9/11 reports, if that is the purpose, the Gov has failed miserably. If it had been successful, we could argue about the value of the trade off. As it stands now, we have more intrusion and little or no benefit.
Bricker, For me, I guess, the matter is quite simple. If I, again, a law-abiding, tax paying contributing member of society can not move through my day with the assurance that I will not be subjected to things like random phone taps, government agents listening through my walls with the Whisper 2000 ™ or my garbage being ransacked, something has gone terribly wrong.
It is not as if I am some Anarchist when it comes to these things. If I am weaving as I drive down the road, or speeding then by all means I should be pulled over. If a beat cop walking past my home glances in my open window and sees my pimp slapping a whore while smoking crack, he should do something.
And I am sure that you are right. These lofty ideals have never really existed in the real world, and I may well be out of synch with the way that my fellow citizens feel about that. What really sticks in my craw, though, is that so many of you don’t even seem to think that these ideals are something that is worth aspiring to or fighting to achieve.
I am not trying to state as some “Gospel Truth” that the way that I see things is the only correct view. What I am asking is for the folks that don’t hold them to at least have to consideration to explain to me what is so wrong with them, and to make a case that I can believe in for how there way is somehow better.
Well, I can hardly argue with the above.
There’s nothing universally wrong with them.
But in certain circumstances, there are problems.
Despite what’s been said above, I don’t believe for a moment that the NSA is randomly picking people to listen to. It just doesn’t make sense that they would… it would be an incredible crapshoot. They undoubtedly have some reason to pick the people they’re monitoring… and those reasons may not rise to the level of probable cause. The mere fact that someone’s name appears in a phonebook from a captured al-Quada operative is not legally sufficient probable cause. Undoubtedly the guy had numbers for his cousin, his dentist, and his brother-in-law. But I contend there’s something to be said for spending a few days checking out the overseas phone traffic of such a person, even if it doesn’t rise to the level of legal probable cause, as would be necessary for a strictly domestic wiretap.
Now, you may say that goes too far down the slippery slope. Certainly that’s a valid fear.
But surely you can see the tone of this discussion between us is far removed from:
For someone who is slavish in demanding that we substantiate our claims with relevant legal basis, you are playing pretty fast and loose with the law here. The law specifically pertains to declared wars, which have a precise legal definition. To allow the President to fudge this requirement and apply this exception in the absence of a declared war is hypocrisy on your part. There was no declaration of war, therefore the President has no authority to conduct electronic surveillance without a warrant. That is not only improper, it is illegal and impeachable. But I agree, he won’t be impeached.
What is the precise legal definition of war?
Well all of that really depends on what your definition of “is”, is.
Not in debate here. However, a Declaration of War is a precise legal instrument that defines a condition of war as of the moment it is passed by Congress. Before the vote, no war; after the vote, a state of war exists. Immediately.
Legally, we are not at war in Iraq. The authorization to use force did not commit us irrevocably to conflict. This is the difference between a declared war and an authorization to use force; under an authorization to use force, the President has discretion. Under a formal declaration of war, the President has no discretion, and is required to presecute the war as ordered by Congress. Traditionally, the President requests a declaration of war, and Congress passes it, so there is little chance the President would refuse the order of Congress.
Excuse me, but you yourself put it at issue, by claiming that (a) there was a precise definition of “war” which (b) the extant Congressional action failed to satisfy making © President Bush’s orders to the NSA illegal.
What is your authority for the propositions you’ve advanced above?
I agree only with one: “Traditionally, the President requests a declaration of war, and Congress passes it, so there is little chance the President would refuse the order of Congress.” It’s true that this had been the traditional practice, up until the middle part of last century.
I’d like some authority for every other claim you made, though.
Don’t bitch about the tone of the conversation in the pit. I’m really fucking pissed off about this. I do not find your legal or moral arguments convincing. In fact, I find you amorality disturbing. I used the word un-American and I meant it. I grew up during the Cold War, and I remember very clearly that one of the reasons we were ready to drop nuclear bombs on the Soviet Union and risk the destruction of civiliazation itself was to prevent this kind of government behavior from coming to the United States. high-tech, warrantless surveilence with no oversight from the judiciary or legislature, done solely at the whim of the leader, is un-American. I can’t see my way around it, I can’t compromise on it. These are the tools of dictatorship. This is rule by decree and it is unacceptable. If we were willing to nuke the Russians to prevent this kind of government from coming to our shores, we need to be willing to impeach a President. He wants a wiretap, fine. Go before a fucking judge and get a warrant. Is not going before a secret judge enough? Bush needs to immediately renounce this behavior or he needs to be impeached.
Don’t misquote me. I said a declared war had a precise definition; a war proceeding from a formal declaration of war by Congress.
If you require a remedial civics lesson for the rest, I will find relevant cites for you to deny.
I contend that Congress’ authorization to the President meets the conditions of “declared war” as that term is used in 50 USC § 1809.
If you have some authority for the proposition that it does not, I’d like to hear it.
And I would like to hear some legal authority for this contention.
Well, too fucking bad. Whine all you want. Bush won’t ever be impeached.
HA HA HA.
There - is that tone more along the lines of what you can deal with?
My question to you is simple: why are you imposing your morality on me? Why is your morality Automatically Right? What makes you different from Falwall, Swaggert, or Phelps? When they do it, it’s an affront. When you annoucne that YOUR moral compass is the only one that can guide us all, you are to be believed and followed.
We have rules. We use these rules because not everyone can claim the right to guide us with their moral compass. Those rules are promulgated by the legislature and the courts and the executive. I don’t accept you as the standard. You don’t accept me. Fine, We must both agree to accept the system as something approaching a reasonable compromise. Argue against the results of the system if you like; do not dismiss it as evil or unreasonable. An awful lot of people in this country don’t share your views; why should you get your way over all of them?
That’s what the White House is contending. “War” has a meaning. “A state of usually open and declared armed hostile conflict between states or nations; a state of hostility, conflict, or antagonism; a struggle or competition between opposing forces or for a particular end.” Cite.
Congress’s resolution authorized the President to:
That constitutes war, within the ordinary meaning of the word.
That’s my authority. Public Law 107-243.
Now what’s yours?
But we are not debating the meaning of war; the law hinges on declared war, a specific legal instrument reserved to Congress by the Constitution. You made an extraordinary claim, that the authorization to use force was equivalaent to a declaration of war. As yet, I have seen no legal basis for this claim.
It’s you that is making the specific claim: that a “declared war” is a specific legal instrument. Where do you get that idea?
Unless defined otherwise, words in law have their ordinary meaning. So when the law says “declared war”, that means that Congress has declared that we’re at war, that we’re legally authorized to use the Armed Forces to fight another nation or state.
You seem to believe otherwise: that the words “Congress hereby declares war,” or some such, must be stated in order to create the “specific legal instrument” of war. I am asking you where you got this idea.
For the sake of argument, I can see how this can be seen to be an interesting question (I know you didn’t specifically ask me). I think that the problem is that you believe that the question is one which cannot be resolved on a philosophical level, and so you have sought a system (the law) to answer it for you. While I would probably agree that the Law is, at the moment, the best compromise that we poor humans are capable of I see in you, I fear, a sad willingness to accept it as The Solution, rather than a step along the way.
At the end of the day, isn’t what we should be asking this: Given that the State exists, what is the moral way in which it should behave towards its members?
You have stated that you think that this sort of surveillance is probably legal or, if I am understanding you, at least in a grey enough area that we need some sort of a president. You have explained that a lot of other people agree with that. Fine. What I am not hearing from you is how the potential level of intrusiveness that the State currently holds over my life is moral.
I contend that in its present incarnation the State is behaving in a very immoral fashion. I also will listen with as open a mind as I can muster how this is not so. Not how the Law is a good thing, not that a lot of my countrymen agree with you, not hairsplitting about what the technical definition of declared war is. Not anything but how what you see the State doing right now is moral.
Well, various acts of congress and judicial opinions make the distinction between a declaration of war and authorized use of force (see War Powers Act of 1973, or Youngstown).
Since it has been commonplace in legal language to recognize a distinction between the two, and since the wire-tap law specifically says declaration of war and not authorized use of force, why shouldn’t it be interpreted as referring to the passage of a bill which is different from the authorization of the use of force?
For that matter, after even more cite searching, the laws already said that he could wiretap and get the warrant or court order afterwards (within 72 hours), which shoots his “emergency” argument right out of the water. The problem is, he never even did that. So on the one hand, he cries about being handcuffed in the “war on terror”, yet on the other hand, he deliberately ignored the very law that would have authorized it. Why - Probably because it isn’t about any “need for speed” at all. He just didn’t want any judges (including the FISA judges?) to know that anything at all was going on. Contempt for the law.
So who are we at war with? Surely it isn’t Iraq. They just had their elections, with our blessing. Even before the election, it couldn’t have been with Iraq, since they were already beaten and now were an occupied country (clue here - they surrendered). So when exactly DOES the war end? This is a serious question. When does the war end?