Of all things, good sense is the most fairly distributed: everyone thinks he is so well supplied with it that even those who are the hardest to satisfy in every other respect never desire more of it than they already have.

during the civil war habeas corbus was comprimised by the president. Is this similar?

Isiah-

There was also slavery in the Southern states at that time. We didn't have a federal law (the 19th amendment) mandating women's suffrage until 1919. The 15th amendment was added in 1870, but it took the Voting Rights Act of 1965 to really force anti-discrimination against minorities.

I guess what I'm saying is that pointing to pass violations of civil rights doesn't seem to be the most practical way, in my humble opinion, of arguing why we should permit new ones.

-jib

Warrantless wiretapping is the legal equivalent of unlawful search and seizure, which is clearly prohibited by the 4th Amendment.

How do you figure? The Fourth Amendment only prohibits unreasonable searches and seizures; it does not require warrants under all circumstances. In fact, by its terms it doesn't require warrants under any circumstances. All it provides is that if a warrant is issued, it must be based on probable cause.

To those who think we can keep the country safe, you don't have to guess what bridge I'd like to sell you. That bridge would not be standing today if the NSA had complied with Anna Diggs Taylor's version of the Constitution.

How do you figure? The Fourth Amendment only prohibits unreasonable searches and seizures; it does not require warrants under all circumstances.

There's a reasonable expectation of privacy when a phone call is made from within a private residence.

To those who think we can keep the country safe, you don't have to guess what bridge I'd like to sell you. That bridge would not be standing today if the NSA had complied with Anna Diggs Taylor's version of the Constitution.

I hear this argument, but I don't understand it. How does upholding the Fourth Amendment make our country less safe? If they are just going after bad guys, why can't they go after bad guys under FISA?

I want our law enforcement to be able to practice surveillance using the best technology available. The objection I have is to warrantless wiretaps, not to the practice of wiretapping altogether. All I desire is for our system of checks and balances between the branches of government to remain intact while doing so.

As I'm sure you know, FISA was enacted to address this very circumstance. Instead, the executive chose to ignore this law, claiming that (i) it is too cumbersome for their needs, and (ii) they have the authority to, based on its Article II powers.

I'm challenging these two claims:

First, if FISA is out date for whatever reason (it's insufficient, anachronistic, too cumbersome in a modern environment, simply can't apply to our newest prevention technologies, whatever), then the executive should go to the legislative and say so, and ask for what they do need. Congress was united in supporting what was needed to protect our country - at least when this program started - and would have done what was necessary to update the FISA system; but, it's beyond the executive's purview to simply ignore the existing law.

Second, as I asked in my article, if the administration's interpretation of the executive's war powers is correct, then what does stop the executive from expanding their powers further, infringing on our other civil rights as outlined in the Constitution? From my perspective, this is the true scary part of the equation. As a clear supporter of the administration's interpretation, I would love for you to address this question.

Now, what I'm not doing is challenging the surveillance itself (as long as there's a warrant). Again, all I want is the preservation of our imperative system of checks and balances - allow the judicial to monitor the executive to ensure there is no abuse of power at the expense of civil rights.

I say we can uphold (indeed, strengthen) our Fourth Amendment rights without endangering national security.

Thanks for commenting! (…and I apologize for the approval delay)

There's a reasonable expectation of privacy when a phone call is made from within a private residence.

That depends on where you're calling to, or taking the call from, as it were. If you call your friend in Cuba, North Korea, Syria or Iran, you have no reasonable expectation that the conversation won't be monitored on the other end, and hence, no reasonable expectation of privacy in general.

I hear this argument, but I don't understand it. How does upholding the Fourth Amendment make our country less safe?

Of course upholding the Fourth Amendment makes us less safe. That's part of the trade-off here. If cops were allowed to search everyone they deemed minimally suspicious, there's no telling how many crimes they might stop in their tracks.

That said, the notion that the NSA wiretaps violate the Fourth Amendment, and coversely, that opposing such wiretaps amounts to "upholding" it, is very weak, bordering on the frivolous.

I want our law enforcement to be able to practice surveillance using the best technology available. The objection I have is to warrantless wiretaps, not to the practice of wiretapping altogether.

I know, that's why I used Iyman Faris and the Brooklyn Bridge as an example. AFAIK he was not a known or suspected al Qaeda member, and only arose NSA's suspicion after random monitoring yielded repeated references to the Brooklyn Bridge. You can't get a warrant to monitor chatter at random, you can only get one for probable cause. Searches and seizures, by contrast, do not require probable cause, only reasonableness (though in many cases reasonableness itself has been construed by the courts to require a warrant and therefore, probable cause).

Second, as I asked in my article, if the administration's interpretation of the executive's war powers is correct, then what does stop the executive from expanding their powers further, infringing on our other civil rights as outlined in the Constitution? From my perspective, this is the true scary part of the equation. As a clear supporter of the administration's interpretation, I would love for you to address this question.

Actually, I'm more of an agnostic on the administration's position. While I understand the Article II argument, I also think there are at least two ways FISA itself may not apply. For one, FISA does not necessarily require a warrant under all circumstances; the operative language merely being a requirement that surveillances be conducted according to "statute," of which FISA itself is only one (and the AUMF is arguably another). For another, even where the basic FISA rule does apply, it has no application to any wiretaps that do not meet its idiosyncratic definition of "electronic surveillance." A wiretap conducted off shore, in outer space in the case of satellite intercepts, or in the target country will not constitute an "electronic surveillance" at all unless it intentionally targeted a known, identified U.S. citizen or lawful permanent resident on U.S. soil, and then only if he had a reasonable expectation of privacy in the conversation. Based on what little is known about TSP, it's far from clear whether FISA applies here at all.

That said, there can be little question that the war power authorizes the executive to do some things he wouldn't be able to do otherwise. How much is the question, but as slippery slopes go I think we're slipping in the opposite direction of what you fear. That we're discussing the legality of the NSA wiretaps at all suggests we're living in a very different world from the one that interned Americans of Japanese descent - an act that was upheld by the Supreme Court in Korematsu v. United States.

That depends on where you're calling to, or taking the call from, as it were. If you call your friend in Cuba, North Korea, Syria or Iran, you have no reasonable expectation that the conversation won't be monitored on the other end, and hence, no reasonable expectation of privacy in general.

First, no one has said the NSA program is limited to those countries.

Second, as an extension of that logic, you believe that even if we're not "at war," our government has a right to tap all international phone calls US citizens make to a destination country that has no Fourth Amendment equivalent? Yikes.

Of course upholding the Fourth Amendment makes us less safe.

Oh, come now… let's not parse words. I was speaking specifically in the context of requiring warrants in the NSA surveillance program. My point is, in this case, we can permit the same level of surveillance while still allowing a judicial oversight. If you'd like to respond to that, then please keep it in that context.

Actually, I'm more of an agnostic on the administration's position. While I understand the Article II argument, I also think there are at least two ways FISA itself may not apply… [snip]

You're dodging the question, counselor. Alberto Gonzolaz would be proud. :)

Responding to your logic: In this debate you often find folks, often partisan, in one of two camps: either they're against the NSA program and trying to prove to everyone how its illegal and that the president MUST be impeached for this offence, or, they're for it and are trying to prove how it is legal due to this or that reasoning - whether a misappropriation of Article II powers or flimsy wording of FISA.

Let's not get caught up in that polarized debate. Let's simply defend the Constitution.

Reviewing the Fourth Amendment:

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.

The intent seems pretty cut and dry. Yes, there are exceptions when a warrant isn't required; but those are the exceptions, and it's our responsibility to be skeptical of new ones.

The Fourth Amendment, like any of our rights, needs to be understood within common law. If there is a perceived loophole that suggests it can be broken (weak FISA law, Article II powers), then we should demand the wording be strengthened. The laws of our country are what we make them, or what we allow our representatives to make them.

With that said, why should we allow a form of warrantless surveillance if we can maintain the same level of security with judicial oversight? What's the gain for such an expansive loss?

Please keep in mind: I'm not arguing that this president is abusing this power; I'm arguing that the next one could.

When I responded to you last time, I noticed a very ironic - or shall I say timely - Quote of the Day posted on AtlasBlogged:

I believe there are more instances of the abridgment of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations. (attributed)
-James Madison.

I thought it very fitting in this case.

[snip] but as slippery slopes go I think we're slipping in the opposite direction of what you fear. That we're discussing the legality of the NSA wiretaps at all suggests we're living in a very different world from the one that interned Americans of Japanese descent [snip]

And that is a very good thing, indeed… but is no reason to become complacent.

Second, as an extension of that logic, you believe that even if we're not "at war," our government has a right to tap all international phone calls US citizens make to a destination country that has no Fourth Amendment equivalent? Yikes.

If by "Fourth Amendment equivalent" you mean a law or policy prohibiting the police from routinely tapping phone lines, or at least a general practice / unwritten law that such things simply aren't done, then I fail to see how anyone who places a call to these countries can have a "reasonable" expectation of privacy. Do you have any arguments to suggest otherwise? "Yikes" is not an argument.

Oh, come now… let's not parse words. I was speaking specifically in the context of requiring warrants in the NSA surveillance program. My point is, in this case, we can permit the same level of surveillance while still allowing a judicial oversight. If you'd like to respond to that, then please keep it in that context.

I've already responded to that point, twice now, by pointing out the random monitoring that saved the Brooklyn Bridge and anyone who happened to be on it. You can't get a warrant to monitor randomly. You can monitor randomly without offending the Fourth Amendment as long as you only do so under circumstances where it is reasonable. I think it is reasonable under the circumstances.

Heh, I think we're the only ones left in the room! :)

…then I fail to see how anyone who places a call to these countries can have a "reasonable" expectation of privacy. Do you have any arguments to suggest otherwise? "Yikes" is not an argument.

"Yikes" was a reaction. My argument was plain: the NSA's warrantless wiretaps aren't confined to these types of countries, so your point is moot. I just went on to say that your interpretation seems to allow our government to wiretap a great deal of our citizens' international calls without probable cause - many people wouldn't support that, ergo, my reaction.

[Jib] Oh, come now… let's not parse words. I was speaking specifically in the context of requiring warrants in the NSA surveillance program. My point is, in this case, we can permit the same level of surveillance while still allowing a judicial oversight. If you'd like to respond to that, then please keep it in that context.

[Xrlq] I've already responded to that point, twice now, by pointing out the random monitoring that saved the Brooklyn Bridge and anyone who happened to be on it. You can't get a warrant to monitor randomly. You can monitor randomly without offending the Fourth Amendment as long as you only do so under circumstances where it is reasonable. I think it is reasonable under the circumstances.

I'm sorry, but your response is a tangent and doesn't address my question. Data-mining is a separate issue. Administration officials have claimed that the NSA wiretapping program is not a data-mining program, that it's a focused program targeting Al-Qaeda.

But, I'll address your tangent as well:

I thought I already made these points in the original article: this isn't a debate about the surveillance itself. We're not debating that the surveillance is good or bad. In fact I'm for it. We are debating whether or not there should be a judicial check (a warrant in this case) when our government spies on its citizenry - thus appeasing the intent of the Fourth Amendment.

Speaking to your example, let's assume we're all for a data-mining program. Now, we can allow this type of surveillance two ways: (i) the executive operates the data-mining on their own, determining the what's and how's they're data-mining for independently, or (ii) the executive operates the data-mining program but has some judicial entity (a FISA court, whatever) perform oversight to ensure the program is limited to their objective of counter-terrorism and is not otherwise abused.

I'm arguing for the latter… why should anyone support the former?

I don't object to some form of judicial oversight to data-mining generally, as long as it's an after-the-fact challenge for reasonableness, and not a warrant requirement (which would effectively kill data-mining by requiring probable cause). In the context of a war, however, I don't think the usual checks and balances should apply. The Constitution affords certain war powers to the President, as commander-in-chief, and certain others to Congress, e.g., to fund the war or to declare/not declare it in the first place, but none to the courts.

[Jib] Heh, I think we're the only ones left in the room!

No, I am definitely still absorbing all of this.

In the context of a war, however, I don't think the usual checks and balances should apply.

I think I would feel somewhat better about the program as is (without warrants) if I were convinced that the scope and context will not evolve over time as nearly every government program has.
And I think a greater level of judicial oversight for the program would go a long way to convincing me of that.

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