# What is the constitutional answer to this (related to the wiretapping issue)? **URL:** \ **Category:** Great Debates\ **Created:** [February 11, 2006, 8:51pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028 "2006-02-11T20:51:38Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [February 11, 2006, 10:52pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/21 "2006-02-11T22:52:51Z")
> [@kanicbird](#): > > That is part of my Q, what methods can be used to find enemy spies? Spies certainally can’t expect constitutional protection, or GC even protection. But the problem is that in order to find out if a US citizen is an enemy spy, you’re arguing that it’s okay to violate their constitutional protections. It’s a Catch-22. “You’re a spy!” “How do you know?” “We wiretapped your phone without a warrant!” “But you did that before you knew I was a spy, therefore violating a citizen’s constitutional rights.” To prove a citizen is a spy, you have to treat him as a non-citizen, which you’re not allowed to do until you know he’s a spy. Where are you inserting the inititation of this process in that loop? ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [February 11, 2006, 10:59pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/22 "2006-02-11T22:59:27Z")
> [@jayjay](#): > > t’s a Catch-22. “You’re a spy!” “How do you know?” “We wiretapped your phone without a warrant!” “But you did that before you knew I was a spy, therefore violating a citizen’s constitutional rights.” Yes I understand this, and it is what makes it so difficult. If you were not a spy, however, any evidence that was obtained against you (like that pot plant you have growing in your windowsill) was illegally obtained and couldn’t be used against you. If you were a spy then all bets are off. And since I mentioned wiretapping, what about a suspected spy contacting a known enemy of the US? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [February 11, 2006, 11:01pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/23 "2006-02-11T23:01:32Z")
> [@kanicbird](#): > > I don’t have to list a single one, because a enemy spy does not have constitutional protection. Sure, and after you’ve captured, tried, and convicted the spy _in accordance with the Constitution of the United States_, you can strip them of most of their protections, just like any other felon, up to and including killing them. But until you’ve proven that they’re a spy in a court of law, they are subject to all the same constitutional protections as anyone else. You do understand that the bulk of our constitutional protections are to protect innocent people from being treated like criminals, right? > [@](#): > > That is part of my Q, what methods can be used to find enemy spies? Exactly the same methods that are used to find any other sort of criminal: those that are allowed under domestic and international law. > [@](#): > > Spies certainally can’t expect constitutional protection, or GC even protection. Why not? What about spying makes it so different from any other crime, to you? > [@](#): > > If so then did Roosevelt break the law? Absolutely, and the Japanese internment was one of the most shameful acts of an otherwise admirable man, as well as being a reprehensible stain on our nation’s history. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [February 11, 2006, 11:02pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/24 "2006-02-11T23:02:49Z")
> [@kanicbird](#): > > If you were not a spy, however, any evidence that was obtained against you (like that pot plant you have growing in your windowsill) was illegally obtained and couldn’t be used against you. You realize this is just a variation on “If you’ve done nothing wrong, you have nothing to fear”, don’t you? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [February 11, 2006, 11:03pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/25 "2006-02-11T23:03:03Z")
> [@kanicbird](#): > > Yes I understand this, and it is what makes it so difficult. If you were not a spy, however, any evidence that was obtained against you (like that pot plant you have growing in your windowsill) was illegally obtained and couldn’t be used against you. If you were a spy then all bets are off. It’s not difficult at all: all citizens of the US are protected by the Constitution until such a time as they’ve been convicted in a court of violating the law. What’s difficult about that? ---
**Author:** ![monstro](https://avatars.discourse-cdn.com/v4/letter/m/ba9def/32.png) [@monstro](https://boards.straightdope.com/u/monstro)\ **Post date:** [February 11, 2006, 11:21pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/26 "2006-02-11T23:21:42Z")
The argument to spy on “foreign” terrorists makes sense, but only when you stop defining terrorism as an international thing. All citizens have the potential to be terrorists. All of us have the potential to overthrow the government and attack the masses. So I’m wondering why “foreign” makes the problem more complicated. In order to find out if Akmed the Citizen is Al Queda, you have to spy on him. (Let’s forget for the moment that in order justify spying on him, you have to know that he’s Al Queda.) This is all well and good if Akmed is a terrorist, but what if he’s not? Not only are the rights of terrorists violated through a policy like this, but also the rights of innocents…thereby making the Constitution pointless. And how do you justify spying on him but NOT on Johnny the Grand Dragon next door? Why is foreign terrorism inherently worse than domestic terrorism? The average American is more likely to be negatively impacted by local thuggery…what’s to stop the expansion of the spy program to include all crimes that threaten the security of Americans? ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [February 11, 2006, 11:30pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/27 "2006-02-11T23:30:58Z")
> [@kanicbird](#): > > If so then did Roosevelt break the law? Obviously he did. So why would you argue that as a precedent in how we should act? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [February 11, 2006, 11:55pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/28 "2006-02-11T23:55:01Z")
> [@kanicbird](#): > > I don’t have to list a single one, because an enemy spy does not have constitutional protection. Cite? An enemy spy that is also an American citizen is afforded Constitutional protection. Your view of things would have allowed the United States to simply execute Aldrich Ames without a trial. An enemy spy can also be found to be an enemy combantant, which would permit a military tribunal, rather than the usual judicial system, to try him. > [@kanicbird](#): > > That is part of my Q, what methods can be used to find enemy spies? Spies certainally can’t expect constitutional protection, or GC even protection. Cite again. I know of no authority that denies spies, if they are United States citizens, their rights under the Constitution. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 12, 2006, 12:31am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/29 "2006-02-12T00:31:57Z")
> [@kanicbird](#): > > I don’t have to list a single one, because a enemy spy does not have constitutional protection. Do you think that the government may summarily shoot people inside this country if there is a suspicion that those people could be spies? ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [February 12, 2006, 12:50am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/30 "2006-02-12T00:50:50Z")
> [@](#): > > \*\* Diogenes the Cynic\*\*: If they’re citizens, they’re citizens. > [@](#): > > **kanicbird** : If I accept your point (which I don’t), then they would be traitors and also subject to military action. Since when have traitors been subject only to military courts? [Julius and Ethel Rosenberg](http://www.atomicarchive.com/Bios/Rosenberg.shtml) were convicted of passing nuclear weapons secrets to the Soviet Union and executed for treason under the U.S. Espionage Act. Yet they were granted their Constitutional rights as citizens. (For example, they were allowed the right not to testify on matters that might incriminate themselves and they were allowed access to the appeals process. They were not tried in a military court. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 12, 2006, 4:22am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/31 "2006-02-12T04:22:00Z")
**kanicbird** , your plan still falls apart on the question of how this decides. In the US, you’re innocent until proven guilty in a court of law. The government can take measures against you wihtout proving you guilty (e.g., spying, arresting, etc.), but only under strictly limited situations. You’re calling for relaxing these rules when dealing with spies, but you offer no way to tell whether you’re dealing with a spy before relaxing the rules. It seems very clear that legally you can’t violate someone’s rights on the mere **suspicion** that they’re a spy. I’m not talking about the Geneva Convention, I’m talking about our own system of laws. Can you point to a law that’s gone before the SC in the past, say, 40 years that allows you to circumvent someone’s constitutional protections on the suspicion that they’re a spy? Daniel ---
**Author:** ![\_Ava](https://avatars.discourse-cdn.com/v4/letter/_/43a26b/32.png) [@\_Ava](https://boards.straightdope.com/u/_Ava)\ **Post date:** [February 12, 2006, 5:50am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/32 "2006-02-12T05:50:56Z")
> [@monstro](#): > > And how do you justify spying on him but NOT on Johnny the Grand Dragon next door? Why is foreign terrorism inherently worse than domestic terrorism? The average American is more likely to be negatively impacted by local thuggery…what’s to stop the expansion of the spy program to include all crimes that threaten the security of Americans? Thank you for the “Johnny the Grand Dragon” comment. I’d like to know exactly what an “enemy spy” is and how you identify one. ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [February 12, 2006, 8:03am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/33 "2006-02-12T08:03:53Z")
> [@kanicbird](#): > > I don’t have to list a single one, because a enemy spy does not have constitutional protection. Apparently you haven’t read [this document](http://www.usconstitution.net/const.html). If you had, you would already know non-citizens under the document’s jurisdiction are afforded the same rights as citizens, especially when it comes to alleged crimes. ---
**Author:** ![Yogurt](https://avatars.discourse-cdn.com/v4/letter/y/f0a364/32.png) [@Yogurt](https://boards.straightdope.com/u/Yogurt)\ **Post date:** [February 12, 2006, 10:16am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/34 "2006-02-12T10:16:53Z")
> [@Duckster](#): > > Apparently you haven’t read [this document](http://www.usconstitution.net/const.html). If you had, you would already know non-citizens under the document’s jurisdiction are afforded the same rights as citizens, especially when it comes to alleged crimes. [Not nessisarily.](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=317&invol=1) In the _Quirin_ case the German spies were denied the right to a traditional trial and were instead tried by a military tribunal and six of the eight were executed. I understand that they were afforded some Constitutional protections but they did not receive a trial by jury. Like **Hamlet** said, serving in a foreign nation’s military is grounds for loss of citizenship. One could successfully argue that acting as a spy for a foreign government, especially during a time of war, would be the same as serving in their military and thus retroactively revoke their citizenship and thus allow a military tribunal to try them. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 12, 2006, 4:14pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/35 "2006-02-12T16:14:41Z")
> [@\*Ava\*](#): > > I’d like to know exactly what an “enemy spy” is and how you identify one. They wear ill-fitting clothes, talk in funny accents, have shifty expressions, and sneak way to talk quietly into secret radios. Any serial short from the early days of TV would tell you that. Unfortunately much of our current policy is no more sophisticated than that. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 12, 2006, 5:09pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/36 "2006-02-12T17:09:37Z")
> [@ElvisL1ves](#): > > They wear ill-fitting clothes, talk in funny accents, have shifty expressions, and sneak way to talk quietly into secret radios. Any serial short from the early days of TV would tell you that. Unfortunately much of our current policy is no more sophisticated than that. ON the contrary: in one entertaining spy story I read (I think it was an Isaac Asimov story), you could recognize a spy by asking them to sing the US National Anthem. Anyone who was able to sing the third stanza of it was definitely a spy. Daniel ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [February 12, 2006, 6:16pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/37 "2006-02-12T18:16:26Z")
> [@jayjay](#): > > You realize this is just a variation on “If you’ve done nothing wrong, you have nothing to fear”, don’t you? That’s what it looks like to me also, with a dash of “guilty until proven innocent”. The law says “show probable cause and get a warrant”. There is no “we think he’s a spy so we’ll just wiretap and hound him until he slips up”. Those are police state methods. The constitution says get a sworn affadavit and a warrant based on probable cause. FISA says get a warrant. Both recognize the power of the state should be limited and used in a certain manner. FISA made it ridiculously easy… you can get it up to three days after the fact. Still, it isn’t “good enough” for some people. Interesting. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [February 12, 2006, 6:34pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/38 "2006-02-12T18:34:04Z")
> [@kanicbird](#): > > I know summary execution of a spy is allowed (if not encourgaed) under the GC. To a certian extent, yes. Enemy military personnel wearing false uniforms can be summarily executed as franc-tireurs, IIRC. I believe that also applies to non-uniformed persons performing acts of sabotage and suchlike. But where I think you’re going wrong is when you consider all ‘spy’ catching and suchlike to be a military exercise. In fact, other than on the battlefield during wartime this is unture. The agency most often tasked with hunting, locating and catching spies is the Federal Bureau of Investigation, a non-military, criminal investigation organization. And when they arrest someone as a ‘spy’ that person falls under the criminal court system unless someone outside that system intervenes. Being a ‘spy’ by standard definitions, is a criminal matter and not a military one. You might argue that’s a pattern that needs changing…but that’s the way it is most of the time. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [February 12, 2006, 6:39pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/39 "2006-02-12T18:39:36Z")
> [@Zoe](#): > > Julius and Ethel Rosenberg were convicted of passing nuclear weapons secrets to the Soviet Union and executed for treason under the U.S. Espionage Act. The difference is that we were not at a state of war with the USSR. OTHO Confederates who donned Union uniforms, for the sole reason that theres were worn out were shot when captured as spies, the Confed’s that still had their Confed uniforms were placed in POW camps. And lets not forget that the Union never officially acknowleaged that the CSA was a independent country, so these Confed’s should have had Constitutional rights. > [@Left Hand of Dorkness](#): > > You’re calling for relaxing these rules when dealing with spies, but you offer no way to tell whether you’re dealing with a spy before relaxing the rules. I agree, it’s that catch 22 situation mentioned above. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [February 12, 2006, 6:53pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/40 "2006-02-12T18:53:35Z")
> [@kanicbird](#): > > The difference is that we were not at a state of war with the USSR. I’m slightly confused as to whether the transparent hypothetical from the OP is still in effect or not. Are we still talking about an unspecified foreign power which has declared war on us after infiltrating, or are we talking about our current real-world situation? If the latter, what nation are we at a state of war with? Iraq has a US-friendly (or at least neutral) government now. Al Qaeda is not a nation. International Islam is not a nation. Rioting Arabs in five different countries are not “a nation” in this sense. We can’t even ever actually BE in a state of war with any of these groups, in the sense that the whole “spy=summary execution” scenario would come into play. None of them have an actual cohesion in the sense that Congress could declare war on “Islamistan” or the like. This is, actually, why some of us consider the whole idea of treating TWAT as a real war is silly. There’s no territory to conquer. There’s no population to legitimately cow. The “front” is as flexible as water and as invisible as air. When do we know we’ve won? Or lost, for that matter? The military option toward domestic spying is unworkable without totally destroying what makes America America. [Previous page](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028.md?page=1) [Next page](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028.md?page=3)