Friday, February 03, 2006

Pre 9/11? Or...

I imagine that many people would accuse me of living in a pre-9/11 world. You see, I think the President's idea that he can authorize domestic spying without a warrant is terrible.

Now, I know that there are people who disagree with me. For example, lots of folks are fond of quoting the decision that you can find here, that contains the memorable quote:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.


This is part of the incidental discussion of the case at hand. The case's main question regards the use of FISA warrants for criminal prosecution. As such, this is considered "obiter dictum" in legalese; incidental, nonbinding parts of the decision.

Additionally, the point being discussed in the quote is foreign (not domestic) spying. Further, the context is regarding the ultimate question of the case: the extent to which criminal investigations and intelligence gathering may be mixed. The entire court's ruling is regarding how FISA works with regard to the Fourth Amendment's protections. Is allowing law enforcement to direct spying a violation of the Fourth Amendment? (Answer: no. Spying on terrorists includes spying that might lead to arrest and conviction of their agents under criminal laws.)

In short, while the non-binding discussion claims the President has a right to spy without a warrant to gather foreign intelligence, the entire case is about the rights of the people under the Fourth Amendment. Which is, of course, as it should be.

It's true that the President has powers to conduct his duties. However, all power of governance is derived from the consent of the governed. The President's powers come from the people, and the people's rights are paramount. "We, the people of the United States... do ordain and establish this Constitution for the United States of America."

The President's very oath of office demands that he protect, preserve and defend the Constitution, and that includes the Fourth Amendment.

So, while many people are arguing about the President's inherent powers, they're ignoring not merely the law (FISA) but the Constitution as well.

Ah, but there's another argument that must be address. "Don't you want the President to know about communications between Al Qaeda and people in the United States?"

This is precisely the argument that was used to defend the detentions at Guantanemo Bay. "They are the worst of the worst; they are terrorists. Why are you defending the rights of terrorists?"

Except, whoops, they weren't all terrorists. Hundreds of people have been released... much later than they would have been, had the US been required to show cause

My opinion about Guantanemo is that the United States should demonstrate cause to hold each and every detainee. It should be shown that we have solid information showing the risk each one poses. (For the record, solid evidence means it wasn't gained through torture, since torturers tend to get what they want to get, which isn't always the truth.) The President shouldn't be allowed to say "trust me, I have cause", he should be able to demonstrate he has cause.

The same holds true here. If the President knows that a person is a member of Al Qaeda, and that person is calling someone in the United States, he has probable cause to listen already, and should demonstrate that to FISA, rather than saying "trust me". Bush has an MBA from Harvard. If he can't figure out an efficient way to move paper around between the NSA and the FISA court to let him spy on members of Al Qaeda, he should retire, and let someone more skilled take over the position. He shouldn't break the law.

Ah, but let's be serious. We know that, if we knew that a member of Al Qaeda was calling someone in the US, paper would be shuffled and the warrant would be issued. Bureaucracies aren't good for much, but when it comes to implementing procedure, they're at their peak.

So, we could assume he just doesn't want to go to the FISA courts, or we would have to assume that he can't go to the FISA courts, because they would turn him down. There's a reason for this. Check out this. The FISA courts will only grant a warrant upon probable cause ("no warrants shall issue..."). General Hayden is shown to be arguing that "reasonableness" is the issue.

The Fourth Amendment prohibits unreasonable search. Couldn't an argument be raised that this kind of searching was reasonable, despite a lack of probable cause? If you read through the comments in the above-referenced blog, you'll see some lawyers weighing in. The most telling is the obvious point. A warrant is given to say "the courts are satisfied that this search is lawful." How could a weaker standard exist for searches done without that explicit certification? How could the courts say that it's more lawful to search with less cause than they'll certify with a warrant?

The standard remains probable cause; there are exceptions that have been upheld by the courts, but never (to the extent of my knowledge) has a search taken in direct, blatant violation of the law ever been upheld as reasonable.

As I said, there are people who would accuse me of living in a pre-9/11 world, insisting that I'm not willing to fight the terrorists. If so, it is only because I live in a post 7/4 world, where the government is bound by the rules, and recognizes that its power is bounded by the rights of those it governs, and where no one, not even the President, is above the law.

Let the President spy, and if the law is a hindrance, let him challenge the law in the courts, or bring his case to the Congress. To do otherwise is to live in a pre-7/4 world, and that is not a position that I, or any other American, should tolerate.

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