"The FISA law was written in 1978. We're having this discussion in 2006. It's a different world. ... I said, look, is it possible to conduct this program under the old law? And people said, it doesn't work in order to be able to do the job we expect us to do."
It is nice to know that the defender of the nation has no respect for old laws. The constitution was written over 200 years ago. I suppose that the 4th amendment is out of date, too, huh? I guess it is time to get rid of that pesky freedom of speech thing also.
H/T Linnet
14 comments:
No, Bush said the FISA law sucked.
Dingo, I like you and respect you, but you literally don't understand the issue. Datasifting can't be used in combination with FISA's requirement for a showing of cause. It's a complete logical contradiction. And that is what Bush is referring to.
I'm explaining this on my blog. It's not that complicated.
Ok, let's stick with your 4th from 200 years ago. THE ORIGINAL.
"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."
If you are in your house talking to a terrorist organization, or in reality your sister, there is nothing in the 4th that prevents listening to that. It is listening on wires or airwaves.
There is no mention of the following in the 4th or Constitution or Bill of Rights mentioning the following:
Telephone, cordless phone, cell phone, mobile phone, text message, sat. phone, email, instant message, or smoke signal.
In effect you are not seizing the conversation, if you "seized" it...it would cease to exist. It makes no mention that you need a warrant to search the airwaves, listen to a conversation from a public location or Government facility.
Please define each of these for me.
secure in their:
persons
houses
papers
effects
You can lock the doors and be secure, no one is coming through the door. No one is on your property.
Persons-
I hope you realize the NSA rarely performs body searches (with exception to when you enter NSA grounds, which I think you would find acceptable). Rarely overseas much less here. That would expose what is going on domestically, that is why we didn't make that part of the program.
Houses-
Refer to start of reply.
Papers-
The NSA is only going through papers obtained from overseas sources or obtained using domestic warrants or things found on public property.
Effects (personal)-
"movable property"
"privately owned items (as clothing and jewelry) normally worn or carried on the person"
I am still not seeing any violation. The ball is back in your court, please continue the questioning.
Thanks for your answers. I would agree with you on most of it except "person" and neither does the Supreme Court. Spoken word is protected by the 4th amendment. It is established law that the 4th Amendment protects "persons" and not "places."
i.e. the 4th protects us in the manner of expectation of privacy and not in preclusion from the police access.
Example 1a - Fred owns a storage locker. The police cannot search the storage locker without a search warrant because I have an expectation of privacy. If they were to search it without a warrant, nothing found can be used to incriminate Fred.
Example 1b - Fred's sister owns a storage locker. Fred asks if he can store some stuff in the locker. She says yes. The cops suspect that Fred is hiding drugs in it. The cops don't need to get a warrant to search it. They only need to get the sisters permission. Everything the cops find can be used against him even though they did not get a warrant because Fred had no expectation of privacy because it is not his locker.
Example 2a - Fred is in his home and calls his friend at his home to discuss drug distribution plan. The cops cannot listen in to the conversation without a warrant because both parties have an expectation of privacy.
Example 2b - Fred and his friend are discussing their plan in a crowded restaurant and a plain clothes cop is sitting at the next table. Same conversation, but no expectation of privacy, therefore no warrant needed.
Example 2c - Fred calls his friend, but this time his friend is not at home, but at the mall and a plain clothes cop overhears the friends end of the conversation. While Fred has an expectation of privacy, the friend does not. For conversations, both parties must have a reasonable expectation of privacy, whether it is face to face or over the phone.
Now, using your definition of the 4th (literal text), Fred could forget and leave a gym bag full of drugs along with notes about how his drug distribution ring was organized on the sidewalk in Times Square. There is a luggage tag on it, so the cops know who's bag it is and could have easily just called the number without opening it to return it to him. If the cops were to open it and search it without a warrant, none of it would be allowed to be used against him because it was a search of his "papers" and "effects" even though it was in public.
Additionally, using your definition, cops could drive down the street using the super sensitive microphones to listen into your house. They are not in your house and the door is locked. Is this really the way you think the 4th amendment was intended for?
I thank you for continuing the debate. It is one time I have not been called names, or now hosts of the site just delete my replies. So I thank you.
All of what you said does not apply. To police and finding drugs it does. Why? Because in a court of law you cannot convict the person because, as you said, evidence has to be collected in a very rigid manner.
What, at the NSA, is trying to be done is listen for "X bridge, at 7am during rush hour, car, c4 for maximum kill." And Stop that from happening. We are in the business of stopping the death of American citizens, not listening for "dude, behind school, pound of pot."
And in addition any conversation that is used and narrow downs where the other is in, say, Iraq then the information remains in the DoD and can be used to plan a strike.
As for leaving the bag in public, especially in Times Square, it stands a better chance of being blown up by the bomb squad than the police calling him. If it is left I believe the courts would find it sufficient that the police were required to check the bag for public safety.
In a moment of humor, I don't think that drug dealers put luggage tags on their bags.
I am being paged and must go, but can I be arrested if I am on my property and hear you and someone else in your house because you are yelling?
"I thank you for continuing the debate. It is one time I have not been called names, or now hosts of the site just delete my replies. So I thank you."
I know the feeling. There are certain blogs that I don't even bother reading/commenting on for that same reason. As long as it stays clean, disagreement is welcome.
"Because in a court of law you cannot convict the person because, as you said, evidence has to be collected in a very rigid manner."
Couple of things an this. First, you are right about the convictions. And this is a problem with the NSA. If the NSA is collecting this information without a warrant and it did happen to net someone who was planning an attack, the info might all be suppressed in a court and, while the attack may be thwarted, the terrorist could go free. In the legal world, it is called the fruit of the poisoned tree. That means all info on that person, and any other person cannot be used that was not only collected from the NSA program, but any subsequent investigation.
Second, the 4th amendment not only protects (unfortunately) the criminal, but the innocent person from random searches. We give up this right when we do things like take a commercial flight, or go to a ball game, but oral communications are still protected.
And, yes, I know that a bag in Times Square would have the Bomb squad out there. I was just trying to point out how the literal interpretation of the 4th cannot be applicable to real life.
As for listening for "X bridge, at 7am during rush hour, car, c4 for maximum kill." One of the problems is that we just don't know what the extent of the program is. You may trust Bush and the NSA, but I don't. Presidents, democrat and republican, have abused this exact type of "inherent" authority before. That is why we have FISA in the first place. I am not saying that we can't or should not listen for terrorist activity, but there is no oversight and the final determination is being made by analyst. Not judges, not attorneys, not congress. There is no set bounds and I simply don't trust the government enough to give it free reign without oversight. I talk to people overseas. I have discussed terrorism many times. I have said, "bomb, terrorist, bridge, suicide, al-Qaeda, etc." Am I on a list? Am I being listened too. I am also an attorney and discuss constitutionally protected attorney-client privileged information over the phone. Is the government listening into conversation that they are precluded from listening to under any circumstances? I just don't know. And neither does anyone else.
When I listened to Col. Hayden speak the other day, he was using the wrong constitutional standard for the 4th amendment. He didn't even know the correct standard. This scares me.
Point being, should it have been possible would you rather the Towers up, Pentagon un touched, and no scarred land in PA but with Atta walking the streets...being tracked. I am not insulting you, I know you did not wish any of that to happen. I was just framing my thought process.
The lives would be far more valuable than catching the handful of terrorists.
As for trust, I am not in the position of needing to trust the NSA. Although I understand others who are worried. I understand the NSA is required to operate under US law but it is part of the DoD. Its goal is to defend the US, and usually not through the courts. That is left to the FBI and DoJ.
Whoa there, you dropped him from O10 to O6 pay grade. He is a four star General. Just to clarify. ;)
I can see what your concerns would be, especially as an attorney. If it means anything I promise you that listening to a conversation about a bomb is made quickly. If it is not in the correct context, it is dropped and not followed.
You understand the concept of privileged information. People would love to know what an attorney tells his client (did he do it?) and in turn what advice is given. But it is improper for this information to be provided to the public. If your client admits in privacy to killing someone, you cannot release that...correct?
In the same manner, no matter how much people want to know, the information just cannot be divulged. Just like the NSA cannot show its files, for it could have catastrophic results. I understand you are a private individual and this is the Govt. but sometimes you really do need to trust.
yes, my bad. General Hayden. I had been speaking to someone about Col. Wilkerson earlier. I think I just had that in my mind. Either way, he still seemed to have forgotten that for a "reasonable" warrantless search, there must be probable cause.
My point being was that we DID have info on Atta and the others prior to 9/11 and that it just wasn't translated in time (as I am sure you know). And, even if the NSA program could have stopped 9/11, FISA would not have been violated. FISA only covers US citizens and permanent residents. Atta was fair game for NSA, CIA, FBI, the Mod Squad, etc.
As I said before, I am not against going after terrorist and using technology to do it. But legal boundaries need to be set in advance. Oversight needs to be in place. You don't need to divulge the specifics of the program to the public in order to set these boundaries. FISA has been amended numerous times since 9/11. Why did Bush not go back for further amendments? Throughout our history as a nation, and thought history of the world, bad things happen when power is consolidated and law is ignored. To me, when Bush had the opportunity to ask for authorization to conduct the NSA program and refused to do it, it says something bigger is going on.
I have never claimed Bush is evil (Cheney... well that is another story). I don't think he is a racist, and I think that he believes that he has the nations best interest at heart. But that does not mean that I trust him. Nixon and LBJ thought they had the nations best interest at heart also, but that doesn't mean they didn't abuse power.
" If your client admits in privacy to killing someone, you cannot release that...correct?"
No, if a client were to tell me he killed someone, I would not be able to divulge that info. At the same time, I would also not be able to go into court and claim he didn't do it. I could say that in evidence does not prove he did it, but I cannot knowingly lie to a court.
But that being said, and getting back to my role as an attorney. I do discuss info with some of my pro bono clients that involve immigration (illegal). While none of it involves any risk to our country directly, I could see how it would be "of interest" indirectly (I am sure you can figure out the ways without me having to spell them out). With all the "walls" down, I could see how information could be passed along. Is it happening now? probably not. Could it happen? I believe that it is a possibility if this is left unchecked.
Either way, I have stopped having personal conversations with friends overseas about the war and terrorism because I don't want to compromise information that my clients are telling me in confidence and have no direct link to the GWOT. Am I being overly paranoid? I certainly hope so. But the only crimes the kids that I represent have committed is being born into poverty and usually abusive parents (Ok, ok...and then crossing into the US without inspection).
BTW, the only way that I can even say anything about my client here is because they have already been caught.
Great back and forth...
2 points I want to respond to:
"And, even if the NSA program could have stopped 9/11, FISA would not have been violated. FISA only covers US citizens and permanent residents. Atta was fair game for NSA, CIA, FBI, the Mod Squad, etc."
One of the biggest problems is that the NSA is under DoD, so prior to the EO after 9/11 it could not operate in US borders, without exception. It was a very touchy situation.
Obviously the CIA is only foreign; it is only the FBI that can act domestically. While I do understand your concerns, deeply, it is not something focused on. With the amount of information for an analyst to go through, the last thing worried about are illegal aliens unless they are calling or being called by specific numbers connected to Al Q.
"I could say that in evidence does not prove he did it, but I cannot knowingly lie to a court."
Well, then wouldn't logic go that if you feel your conversation was listened to, you could take action against the NSA. At the same time if you have no way to prove the wrong-doing on the part of the intel community, then isn't it prudent for classified programs to remain just that?
I am no lawyer but I believe the burden is on the plaintiff? But in layman's terms I think my overall argument is fairly well founded.
"the last thing worried about are illegal aliens unless they are calling or being called by specific numbers connected to Al Q."
The concerns I have on this deal mainly with the smuggling aspect. This is obviously "of concern" to homeland security. Many of these kids were brought in by smugglers and either paid to get in or were brought in as slaves. Smugglers don't go away just because the kids got pinched at the border.
"Well, then wouldn't logic go that if you feel your conversation was listened to, you could take action against the NSA."
it is the indirect effect that I am worried about. And as the courts have ruled over and over, just because a search is not intrusive does not mean it is not a 4th violation.
And I still say that boundaries (legal) need to be set. Is there a definition of terrorist and terrorist activity? maybe in the NSA secretly, but there is no legally enforceable limit. Where to terrorism end and say, drug trafficking begin? Opium is on the rise in Afghanistan. What about arms traffickers that may also be human traffickers?
Additionally, how do you take action against the NSA if there is no "law" other than presidential authority. And, since there is no defined law, there is no punishment for abuse. There are criminal provisions in FISA. If the president is working outside of FISA, no one can be prosecuted or punished for breaking it.
You are obviously much more verse on the operational details of intelligence gathering than I am. Do you think that there is no way the we could do the things that we do without actually creating a law to create legal boundaries to curb abuse? Is it impossible to have FISA or a FISA like law that would create oversight?
"One of the biggest problems is that the NSA is under DoD, so prior to the EO after 9/11 it could not operate in US borders, without exception. It was a very touchy situation."
Yes, but isn't this just a failure to communicate and not a failure of FISA?
"With the amount of information for an analyst to go through, the last thing worried about are illegal aliens"
Like I said, I do not think this is currently happening, but that does not make me believe that it could not happen in the future. Programs have a tendency to get bigger, not smaller. Obviously our borders is a "hot button" issue for many.
"Yes, but isn't this just a failure to communicate and not a failure of FISA?"
It is just very tough using the NSA in the US. As I believe I mentioned the NSA is under DoD, so when FISA would give a warrant, if the NSA is involved it is much like the FISA court authorizing a military operation within US borders. You can see how that does not play with many, until 9/11.
I do understand concerns, and to create a public law is tough. I know it is repeated, but it is true. As you draw the lines people watch and make sure you operate just shy of those lines.
Like those that carry just under X amount of drugs, knowing one more ounce would be a felony.
It is just tough. It is a clash between big points. Public knowledge, the right to know. Yet secrecy works better to fight terror. It is in many ways ironic that 80%+ think we should be doing the NSA operations, they just don't like how it was authorized.
From my point of view, to a degree just be happy with the end result, and try not to fuss too much over the process.
I think you realize I am reasonable, so in my above statement I am not saying to prevent all public knowledge, but in some rare cases you need to. It is an interesting debate with support on both sides. I would just hope that many would start by realizing this may have stopped attacks, then go from there.
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