Posted on 01/03/2006 1:45:06 AM PST by SBD1
It is not as if Bush is doing anything new or different than previous Presidents have done. Perhaps on a larger scale, but then again, we are at war.
Why wouldn't you approve of using the same tools against a McVeigh? Hamas? Is Al Qaeda the only organization of concern?
I've noticed this claim quite a few times, but interstingly, I notice they're not pushing it very hard. If they're tapping an al qaeda phone, and you happen to be the one they call, then they aren't violating your fourth-amendment rights at all. That argument would be watertight, so I wondered why they didn't use it more. But I realized why, later. They aren't using it because that's not what's happening: what's happening is that once you receive a phone call, they're tapping your phone as well, without a warrant.
It's ironic, because under those circumstances probable cause is airtight, and getting a warrant should take about five minutes. IOW, the argument for a warrantless tap is in reality the strongest argument why they should certainly go for a warrant.
Better to have al Qaeda cut my head off than to give up everything that makes life worth living.
Be seeing you on the next videotape I guess. Hope it doesn't hurt too much. Those folks who have had it done to them seem to scream a lot. I hope you do better.
Do you really believe Hellary, or any dim, will let a little something like the LAW get in the way? 900 FBI files - not problem. Waco - no problem. Elian - no problem.
Is this the Jabara case? If so, it's been cited and dissected.
See discussion at http://www.freerepublic.com/focus/f-news/1548460/posts?page=91#91, and scroll down to posts 98 & 100 for my take.
Bump.
And the 2nd Amendment is for militias, not individuals.
I followed the link and this is indeed the Jabara case. I haven't followed the discussion on this particular case but it doesn't look relevant as you say it wasn't decided on constitutional grounds.
Jabara v. Kelley, 476 F. Supp. 561 (ED Mich. 1979), vacated & remanded sub nom. Jabara v. Webster, 691 F.2d 272 (6th Cir. 1982), cert. denied, 464 U.S. 863 (1983). SCOTUS only reviewed a request to be released from custody, and did not touch the questions relating to the fourth amendment.
In 476 F. Supp. 561 (ED Mich. 1979), the court found the NSA/FBI warrantless examination of the contents of Jabara's communications to violate Jabara's fourth amendment rights.
I do agree with your larger point, that acts of Congress cannot limit executive power granted under the Constitution; nor can acts of Congress limit the rights of the people beyond what is expressed by the Constitution.
The terrorists would be grateful for the info too, of course.
ROFL! Congratulations. This ranks right up there with the most ridiculous thing posted on FR. But thanks for the morning belly laugh.
But then it came down to this fundamental issue (and it's basically the same one raised in the post above): how can Congress usurp the President's Constitutional role to prosecute a war against our enemies. Because that's essentially what FISA does in time of war.
Sidenote: 9/13/2001 SJ Res 23 says "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001").
In any case, Cole did finally cite some allegedly precedent case that illustrates the President does not have such powers if Congress has already limited them by statute. Unfortunately I did not hear his entire assertion or the name of the case he was referring to.
So there may be something out there, but it's pretty obscure at the moment.
While that is true, you should NOT fool yourself into thinking that laws will prevent bad people from doing bad things. In this day and age anyone that thinks electronic communications of any kind are "secure" is naive. Being "just a small fish in the ocean" gives some anonymity, but with data mining you can still be singled out. All electronic means of communication should be considered as public for a realist.
This thread contains the lower court's opinion. It is not the same one that I commented on at http://www.freerepublic.com/focus/f-news/1548460/posts?page=91#91, although it involves the same fact pattern and prosecution.
My comments in the earlier thread are on the Circuit Court opinion, that is, the case on appeal. Here is some of what the District Court said about the use of warrantless NSA surveillance against Jabara ...
Furthermore, any contention that a warrantless search directed at Jabara can be justified by the plaintiff's affiliations must fail in light of the Court's earlier finding "that its In camera review (of materials submitted by the government) has not revealed any evidence to establish that the plaintiff or the domestic organization to which he belongs has been implicated in any way with a foreign agent or organization or acting in collaboration with a foreign power." Jabara v. Kelley, 75 F.R.D. at 493.Thus, it is clear to the Court that a fourth amendment violation has occurred. As noted above, the mode of interception employed by NSA does involve serious fourth amendment questions with respect to whether NSA surveillance Alone violates a person's reasonable expectations of privacy and is subject to the warrant requirement of the fourth amendment. However, the examination of the contents of conversations thus intercepted would violate a person's reasonable expectation of privacy n13 and is tantamount to what has generally been referred to as an interception in cases and statutes dealing with more traditional modes of electronic surveillance. Consequently, absent some recognized exception [**55] to the warrant requirement, the targeting of a person's conversations intercepted by NSA for summarization, transmission to, and subsequent examination by other agencies must be done pursuant to prior judicial authorization akin to a warrant. Here no such exception exists. Jabara has not been shown to be an agent or collaborator of a foreign power and even if it were shown that such an agent or collaborator was the other party to Jabara's intercepted communications, that circumstance would be irrelevant to the warrant requirement. Since the FBI's interest in Jabara led to the transmission and examination of the summaries in question, any applicable exception to the warrant requirement must be based on Jabara's status or identity.
n13. This is es pecially true in this case where at least two of the communications in question were used for investigative lead purposes by the FBI.Accordingly, the plaintiff's motion for summary judgment with respect to this issue is granted.
That last sentence means that the government summarily LOST, and the plaintiff obtained declaratory and injuctive relief against the warrantless electronic surveillance.
The appeals court carefully abstracted the NSA activity away from the FBI activity, as discussed on the other thread. The reversal of the grant of summary judgement below is stated thusly:
We conclude, therefore, that Jabara's fourth amendment rights were not violated when the FBI obtained summaries of his overseas telegraphic communications from NSA and that the district court erred in granting summary judgment to Jabara and that, on the contrary, it should have granted summary judgment to defendants as to this claim.
The grounds asserted by the plaintiff, Jabara, are clearly constitutional in this part of the case.
"I've noticed this claim quite a few times, but interestingly, I notice they're not pushing it very hard. If they're tapping an al qaeda phone, and you happen to be the one they call, then they aren't violating your fourth-amendment rights at all."
What am I getting wrong here? I thought it was EAVESDROPPING, not tapping that was being questioned.
You realize that FISA was being petty, denying and delaying wiretap requests at unprecedented rates? You also realize that congress was fully aware of all the details of these wiretaps, and approved NSA's doing them? And you realize that all the wiretaps *are* reviewed every 45 days, to determine whether there was any abuse?
Your fear is being fueled by your ignorance.
Right on! And what's with having to submit his judgement to courts? What say we just dispense of Congress and Courts altogether, and just estabish a set of administrative beauracracies to handle the government's business.
SJ Res 23, 9/13/2001:
"...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."
Ummm ... they endeavor to capture to all international communication, and probably a good deal of domestic communication too.
This is not the first time this has been done. It has been ruled on by the courts before.
Yep. And been the subject of Senate hearings before too.
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