# 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:** 3
**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, 7:27pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/41 "2006-02-12T19:27:39Z")
> [@kanicbird](#): > > I agree, it’s that catch 22 situation mentioned above. It’s not a very good catch, this Catch-22 of yours. There’s an easy way out: treat people accorded US Citizenship status as US Citizens until a legal threshhold is crossed that revokes their citizenship. If you follow this idea, then there’s no problem. The problem only arises when you suggest that we can violate someone’s citizenship rights based on something less than legal revocation of their citizenship status. Daniel ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [February 12, 2006, 8:20pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/42 "2006-02-12T20:20:30Z")
> [@kanicbird](#): > > I agree, it’s that catch 22 situation mentioned above. You say this as if it’s all but impossible to convict people for terrorism or espionage while simultaneously affording them Constitutional rights. Has this been an actual problem? Any real-world examples, like perhaps 9/11 hijackers who were going to have their phones tapped, but there wasn’t enough evidence for a warrant, or something like that? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 12, 2006, 9:10pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/43 "2006-02-12T21:10:45Z")
> [@kanicbird](#): > > OK this is not how I see the issue, they are foreign spies acting under the ruse of citizenship, and the issue is military as opposed to a civilian law enforcement issue. It makes no difference. The protections of the Bill of Rights are not limited to citizens. Citizens have only two general categories of rights resident non-citizens have not: 1. The right of political participation – voting and holding public office – which is really a set of privileges, subject to regulation (e.g., the practice of some states of permanently disenfranchising convicts might be egregious, but is not unconstitutional). 2. The right of residence on U.S. soil. (Citizens convicted of crime can be stripped of their civil rights, even put to death in some cases; but they cannot be exiled or deported; noncitizens can be). ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [February 13, 2006, 12:26am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/44 "2006-02-13T00:26:40Z")
> [@jayjay](#): > > 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? Oh sh!t they figured out what the OP is about. Doesn’t matter that much, see below. > [@](#): > > 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. I would argue that the country is the one world Islamic state, which according to many who follow Islam and blow up things must exist, but that doesn’t even matter since the precedent has been set that we can declare war on a non-country (Barberry Pirates) > [@LHoD](#): > > It’s not a very good catch, this Catch-22 of yours. There’s an easy way out: treat people accorded US Citizenship status as US Citizens until a legal threshhold is crossed that revokes their citizenship. If you follow this idea,\*\* then there’s no problem\*\*. Well I can think of one fat, huge flashing - no strobbing problem, using your method dooms us to defeat (yes IMHO). > [@RevTim](#): > > You say this as if it’s all but impossible to convict people for terrorism or espionage while simultaneously affording them Constitutional rights. Has this been an actual problem? I suspect so due to the existance of the wiretapping program. I don’t think it is reasonable for the Government to inform the public on issues that if revealed, could hurt our war effort. > [@BrainGlutton](#): > > It makes no difference. The protections of the Bill of Rights are not limited to citizens. So would you say that an invading army into the US, which is stopped and some of the invading troops captured would be allowed constitutional rights, while thoese captured while still in international waters would not? ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [February 13, 2006, 1:27am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/45 "2006-02-13T01:27:52Z")
> [@kanicbird](#): > > I suspect so due to the existance of the wiretapping program. I don’t think it is reasonable for the Government to inform the public on issues that if revealed, could hurt our war effort. So if a civil right is taken away, you don’t even need them to tell you _why_, let alone have any debate about it. Yeah, no potential for abuse there. ---
**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 13, 2006, 1:44am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/46 "2006-02-13T01:44:10Z")
> [@Yogurt](#): > > [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. Actually they were afforded constitutional protection in that they were tried under a military tribunal, which is subject to the UCMJ under the Constitution. And yes, their rights were limited, but they were still tried under the law. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 13, 2006, 1:47am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/47 "2006-02-13T01:47:33Z")
> [@kanicbird](#): > > I would argue that the country is the one world Islamic state, which according to many who follow Islam and blow up things must exist, but that doesn’t even matter since the precedent has been set that we can declare war on a non-country (Barberry Pirates) Confused on all points. There **was** a foreign sovereign involved there, the Pasha of Tripoli. And Congress never declared war, the Pasha did. : > [@](#): > > On Jefferson’s inauguration as president in 1801, Yussif Karamanli, the pasha of Tripoli demanded $225,000 from the new administration. Putting his long-held beliefs into practice, Jefferson refused the demand. Consequently, in May of 1801, the pasha declared war on the United States, not through any formal written documents, but by cutting down the flagstaff in front of the U.S. Consulate. Morocco, Algiers, and Tunis soon followed their ally. > > In response, Jefferson sent a group of frigates to defend American interests in the Mediterranean, and informed Congress. Although Congress never voted on a formal declaration of war, they did authorize the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bay of Tripoli “and also to cause to be done all such other acts of precaution or hostility as the state of war will justify.” In any case, no “one world Islamic state” exists. No one, least of all al-Qaeda, has any authority to declare war in its name, and Congress has no authority to declare war upon it. (A contrary theory would have given the Soviet Union the authority to declare war on the U.S. in the name of the “international working class” – and authorized Congress to declare war on the “international working class” as embodied by its legitimate representative, the USSR.) Legally, al-Qaeda can be treated only as what they are – a band of criminals acting without lawful authority from any state. > [@kanicbird](#): > > So would you say that an invading army into the US, which is stopped and some of the invading troops captured would be allowed constitutional rights, while thoese captured while still in international waters would not? The troops of a sovereign state, invading the U.S., would be treated according to the rules of war – meaning, if captured, they would be immune from criminal prosecution in American civilian courts. They would be treated as POWs under the Geneva Conventions and repatriated after the cessation of hostilities. Is that how you want al-Qaeda terrorists treated?! Terrorists, on the other hand, whatever cause they might purport to serve, would be treated under the criminal law. Meaning, if arrested in the U.S., they would be entitled to all protections afforded criminal suspects under the Constitution and applicable criminal codes. If there is some justification for the Admin creating a third category of “unlawful combatants” enjoying the protection neither of POWs nor of criminal suspects, why does it have to keep them in Guantanamo Bay? A location apparently selected because it is under U.S. control, but arguably not U.S. soil for all legal purposes. If the “unlawful combatant” categorization is lawful, why not just put these guys in an ordinary federal jail stateside? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 13, 2006, 1:49am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/48 "2006-02-13T01:49:55Z")
Sorry, the above quote on the First Barbary War is from [http://en.wikipedia.org/wiki/First\_Barbary\_War](http://en.wikipedia.org/wiki/First_Barbary_War). ---
**Author:** ![Yogurt](https://avatars.discourse-cdn.com/v4/letter/y/f0a364/32.png) [@Yogurt](https://boards.straightdope.com/u/Yogurt)\ **Post date:** [February 13, 2006, 6:50am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/49 "2006-02-13T06:50:10Z")
> [@Duckster](#): > > Actually they were afforded constitutional protection in that they were tried under a military tribunal, which is subject to the UCMJ under the Constitution. And yes, their rights were limited, but they were still tried under the law. Iagree insofar as they were given a trial, my point being however that there rights were curtailed and by trying them in a military court they were not afforded the same rights and privileges that an American citizen would receive, the right to a jury trial for instance. > [@BrainGlutton](#): > > Terrorists, on the other hand, whatever cause they might purport to serve, would be treated under the criminal law. Meaning, if arrested in the U.S., they would be entitled to all protections afforded criminal suspects under the Constitution and applicable criminal codes. > > If there is some justification for the Admin. creating a third category of “unlawful combatants” enjoying the protection neither of POWs nor of criminal suspects, why does it have to keep them in Guantanamo Bay? A location apparently selected because it is under U.S. control, but arguably not U.S. soil for all legal purposes. If the “unlawful combatant” categorization is lawful, why not just put these guys in an ordinary federal jail stateside? Personally, I feel holding the prisoners in Guatanamo Bay serves to purposes. First, it provides us with a secure and isolated location to warehouse and interrogate the prisoners. To the best of my knowledge no one has broken into Guantanamo Bay or escaped from it. Because it is a military base in Cuba there is no chance of protesters or other groups disrupting the operations down there. Furthermore, if we placed the detainees in federal jails they would be a huge security risk. I agree it is the state’s responsibility to accept this risk if they wish to hold them but by placing them in a federal facility the risk would increase ten fold compared to Guantanamo. There is a good possibility another inmate could attempt to kill them or a friendly inmate or guard could carry information in or out. All of these things would result in some terrible publicity and only cause this administration, who I don’t care for myself, additional problems. Secondly by holding them in Guantanamo the Administration is semi-successfully able to further it’s argument that the detainees are not on American soil and thus not subject to the jurisdiction of the American courts or the protections afforded by the US Constitution. Not the most compelling argument, but the Administration has been using it for quite some time. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 13, 2006, 7:03am UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/50 "2006-02-13T07:03:10Z")
It’s really really simple. If there are people who should be investigated, then a court should issue a warrant. If the law doesn’t cover the possibilities, then Congress should change the law. And the President, whoever he is, does not have the right to overrule the law. To illustrate why this is important, let’s use another example. Suppose a Democratic President found out that there was a group of people living in the country who were forming a militia group and trying to take over the country. And the President said that was a clear threat to the safety of the United States. So to prevent this armed uprising, he was going to confiscate all the guns in the country and lock them up until everything was “safe”. Now some people would say “Hey, that’s a clear violation of the Constitution and a whole bunch of other laws.” But the President would say, “But we’re at war and during wartime I have the power to do whatever is necessary to protect the country. So you have to give up your guns.” Now do you understand why it’s important for the President to obey the Constitution all the time and not just when he feels like it? ---
**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 13, 2006, 12:23pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/51 "2006-02-13T12:23:32Z")
> [@kanicbird](#): > > Well I can think of one fat, huge flashing - no strobbing problem, using your method dooms us to defeat (yes IMHO). What, I wonder, do you think those who would sacrifice essential liberties for a little temporary safety deserve? Daniel ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [February 13, 2006, 1:34pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/52 "2006-02-13T13:34:38Z")
> [@Revtim](#): > > So if a civil right is taken away, you don’t even need them to tell you _why_, let alone have any debate about it. Yeah, no potential for abuse there. No a whole buttload of potential abuse there. But this potential is reason not to abuse it, for if actual abuse comes to light the whole program is compromised. > [@BrainGlutten](#): > > There was a foreign sovereign involved there, the Pasha of Tripoli. And Congress never declared war, the Pasha did. Thanks for the history lesson. But this reinforces my point, the terrorists declared war on us, just like the Pasha of Tripoli. It is true that Al-Q does not have a internationally recognized ‘country’, but they certainly have command and control operations, which is a legitimate target of military actions. > [@](#): > > A contrary theory would have given the Soviet Union the authority to declare war on the U.S. in the name of the “international working class” – and authorized Congress to declare war on the “international working class” as embodied by its legitimate representative, the USSR I don’t see why they couldn’t do this, who would stop them from declaring war - Og? > [@](#): > > meaning, if captured, they would be immune from criminal prosecution in American civilian courts. They would be treated as POWs under the Geneva Conventions and repatriated after the cessation of hostilities. Is that how you want al-Qaeda terrorists treated?! Yes that is exactly how I want them treated, as EPW’s and released after the war on terror is over, that is for the members of Al-Q who qualify under the G.C., for ones who don’t again summary execution as spies. > [@Little Nemo](#): > > Now do you understand why it’s important for the President to obey the Constitution all the time and not just when he feels like it? It’s not that I don’t understand the other side of the issue. In your example, the item you state goes directly against the written text of the Constitution on 2 levels - Security needs a well regulated militia, and the right of the people to keep and bear arms - directly barring your example, and directly countering the reason for the action taken in your example. The ‘right to privacy’ does not exist in the written text, nor is there a reason stated for it. It is arguable open to challenge, and telecommumications, which travel sometimes over the air might not be afforded this protection. But again I feel this is besides the point, as Al-Q opperatives should not be given such protections -yes back to that catch 22. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [February 13, 2006, 1:43pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/53 "2006-02-13T13:43:35Z")
> [@Left Hand of Dorkness](#): > > What, I wonder, do you think those who would sacrifice essential liberties for a little temporary safety deserve? I do agree with Ol’ Ben’s statement, and have many disagreements on how this war is conducted. I would much prefer a more ‘citizen centric’ anti Al-Q effort inside the US homeland, but we have already surrendered this responsibility of essential liberties to police and other authorities that it would take too long to go back in the tiem frame of the war. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 13, 2006, 3:23pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/54 "2006-02-13T15:23:24Z")
> [@kanicbird](#): > > It is true that Al-Q does not have a internationally recognized ‘country’, but they certainly have command and control operations, which is a legitimate target of military actions. **No it isn’t.** Invasion of Afghanistan was necessary to eliminate that country as bin Laden’s base of operations. Beyond that, this is a **policing** problem, not a military problem. You don’t declare war on nonstate criminals, and you don’t fight them under the rules of war. There is no legal basis for it, and it is impractical besides. Using an army to fight an underground network of terrorist cells is like firing a machine gun at a cloud of mosquitoes: The mosquitoes won’t be affected and you’re more likely to hit innocent bystanders. ---
**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 13, 2006, 3:24pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/55 "2006-02-13T15:24:07Z")
> [@kanicbird](#): > > after the war on terror is over Would you care to posit either a time frame or a set of benchmarks required to recognize such a thing as “over” for this “war on terror”? Because without one of those two, “after the war on terror is over” is functonally equivalent to “never”. ---
**Author:** ![Martiju](https://avatars.discourse-cdn.com/v4/letter/m/e8c25b/32.png) [@Martiju](https://boards.straightdope.com/u/Martiju)\ **Post date:** [February 13, 2006, 3:58pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/56 "2006-02-13T15:58:33Z")
> [@kanicbird](#): > > No a whole buttload of potential abuse there. But this potential is reason not to abuse it, for if actual abuse comes to light the whole program is compromised. So, if someone happens to accuse you, or a member of your family, of spying - that’s ok because it’s a time of war. Nobody need know about it as you’re wiretapped and then discreetly taken away, as you “don’t think it is reasonable for the Government to inform the public on issues that if revealed, could hurt our war effort.” I’m glad we don’t live in your world just yet. ---
**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 13, 2006, 5:10pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/57 "2006-02-13T17:10:12Z")
> [@kanicbird](#): > > But again I feel this is besides the point, as Al-Q opperatives should not be given such protections -yes back to that catch 22. You mean _proven_ Al Qaeda operatives, right? Once they’ve been tried according to the Constitution? Let me ask you, **kanicbird** -why do you hate America? No, seriously, what you are proposing goes against EVERYTHING this country is supposed to stand for. ---
**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 13, 2006, 5:18pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/58 "2006-02-13T17:18:11Z")
> [@kanicbird](#): > > I do agree with Ol’ Ben’s statement, and have many disagreements on how this war is conducted. I would much prefer a more ‘citizen centric’ anti Al-Q effort inside the US homeland, but we have already surrendered this responsibility of essential liberties to police and other authorities that it would take too long to go back in the tiem frame of the war. I’m not sure what you mean by this. The fact remains that what you’re proposing is completely unworkable without severe further dismantling of our civil liberties (inasmuch as you propose shooting people who are suspected of being spies). You’ve offered no evidence whatsoever that preserving our civil liberties and giving suspected spies a constitutionally-guaranteed trial will result in Doom. Why on earth would anyone take your argument seriously, given its lack of evidence and patently unworkable proposal? Daniel ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [February 13, 2006, 5:52pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/59 "2006-02-13T17:52:27Z")
> [@kanicbird](#): > > No a whole buttload of potential abuse there. But this potential is reason not to abuse it, for if actual abuse comes to light the whole program is compromised. This is like saying we can trust accountants not to embezzle, because of if they get caught embezzling, they’ll lose their jobs and hence have to stop embezzling. So no need to have any oversight on them, which is the one and only way they might get caught embezzling. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 13, 2006, 7:53pm UTC](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028/60 "2006-02-13T19:53:52Z")
> [@Martiju](#): > > I’m glad we don’t live in your world just yet. 'Fraid we do. At least until November 2006. [Previous page](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028.md?page=2) [Next page](https://boards.straightdope.com/t/what-is-the-constitutional-answer-to-this-related-to-the-wiretapping-issue/344028.md?page=4)