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Swiftboating the Fourth Amendment in the Name of the War On Terrorism

by Last Night in Little Rock

The NSA wiretapping case decided Thursday; ACLU v. NSA, 2006 U.S. Dist. LEXIS 57338 (E.D. Mich. August 17, 2006); which was mentioned by me as a "resounding defeat" for the government, on the order of the Gitmo case; Hamdan v. Rumsfeld; is getting interesting play from President and the media.

The GOP rhetoric is starting to sound like "if you are for the Constitution, you are for the terrorists." How low can we sink?

Let's start with the lawyers. In today's NY Times, Adam Liptak writes in Experts Fault Reasoning in Surveillance Decision:

Even legal experts who agreed with a federal judge's conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision's reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government's major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log [How Appealing] provides comprehensive and nonpartisan reports on legal developments.

"It does appear," Mr. Bashman said, "that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority."

Neither was Griswold v. Connecticut, 381 U.S. 479 (1965), the case that talked about a "penumbra" of rights and a general right of privacy, but it remains the law. A right of privacy in the home is a given, "natural right."

Worse yet: how about the Supreme Court gutting the Fourth Amendment's exclusionary rule this past term in Hudson v. Michigan, turning back the clock to 1910. The almost surreal logic of Hudson sounds like it was ghostwritten by the Department of Justice as a way to destroy the Fourth Amendment in the name of effective law enforcement. Bashman is right that ACLU v. NSA is not perfect (and it even might be said to strike a low blow in the reference to the "King"), but Hudson is appallingly badly reasoned, even contrary to common sense and experience (something Scalia has been accused of lacking), relying on the bona fides of the police and government. Relying on the good faith of the government to determine when a search can occur without a warrant was warned against 58 years ago in Johnson v. United States, 333 U.S. 10, 13-14 (1948):

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

This is just the beginning of the legal commentary.

But, what about the political side of the question? What is the view from there?

As with any issue, where one stands alters the view. In Bushspeak, it is whether siding with the Constitution is perceived instead to be siding with the terrorists.

United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting):

It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in. It makes all the difference in the world whether one approaches the Fourth Amendment as the Court approached it in Boyd v. United States, 116 U.S. 616, in Weeks v. United States, 232 U.S. 383, in Silverthorne Lumber Co. v. United States, 251 U.S. 385, in Gouled v. United States, 255 U.S. 298, or one approaches it as a provision dealing with a formality. It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece or paper.

The President and Republicans think of the Fourth Amendment as a piece of paper or an impediment, and not as a guardian of civil liberties. See CNN.com today:

President Bush said Friday he expects his administration will win its appeal of a judicial ruling finding the National Security Agency's warrantless domestic surveillance program unconstitutional.

"Those who herald this decision simply do not understand the nature of the world in which we live," Bush said at Camp David, where he has been meeting with his top economic advisers.

...

"I strongly disagree with that decision, strongly disagree," Bush said of Taylor's ruling, "and I believe our appeals will be upheld."

Of course he believes that. His advisors only tell him what he wants to hear or what they want him to hear. Does he get the whole truth? Unlikely. And, of course, every losing litigant promises to win the appeal. But, there are cues in the Bushspeak: "the nature of the world in which we live" is code for "it is time to repeal the Fourth Amendment if we can't ignore it anymore."

In the Washington Post today is this: Ruling Against Wiretaps Further Sharpens Partisan Divide by Jonathan Weisman. It seems that the Republican Party will seize on anything that it can spin the other way, and this is no exception:

Minutes later, under the headline "Dems Rejoice," the Republican National Committee illuminated those reactions, releasing the statements of eight Democrats -- including House Minority Leader Nancy Pelosi (Calif.) and Sen. John F. Kerry (Mass.), the 2004 presidential nominee -- all heralding the decision as a rebuke to the president.

The National Republican Senatorial Committee challenged Democratic candidates to "stand up in opposition to a liberal judge," while the RNC released an Internet advertisement painting the Democrats as soft on defense. The ad shows prominent Democrats decrying warrantless wiretapping, abusive interrogations, ballistic missile defense and the war in Iraq through the opening of a cave, meant to represent the vantage point of terrorists monitoring the opposition party.

"Democrats say they want to talk about national security and the war on terror . . . while terrorists are watching," the narrator intones.

With that burst of activity, Republicans appeared ready to make Taylor's decision on wiretapping the 2006 equivalent of a Massachusetts judge's legalization of same-sex marriage in 2004: a rallying cry for the Republican base.

"They never miss an opportunity to play divisive politics on national security," said Rep. Rahm Emanuel (Ill.), chairman of the Democratic Congressional Campaign Committee. "The one casualty Americans would accept in the war on terror is partisanship, and that's the one thing George Bush won't give up."

Today's LA Times has this interesting article by Maura Reynolds: GOP Sees Strategic Advantage in Court Loss on Wiretapping:

This week's federal court ruling that declared the president's warrantless wiretapping program unconstitutional was a blow to the Bush administration and a victory for its critics. But in a reversal, it is Republicans who are highlighting the decision and Democrats who are sidestepping it. A day after a Detroit judge said the president "blatantly disregarded" the Constitution when he authorized the domestic surveillance program, top Republicans issued a stream of memos discussing her ruling and released a new Web ad accusing Democrats of being against terrorist surveillance.

Let the Swiftboating of the Fourth Amendment begin.

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  • it is important to look at this from the wider perspective of how secretive this administration has been in all areas, not just what they have passed off as secret pertaining to the WOT. Once that is done, the pattern becomes clear that they are just using the WOT as an excuse to monitor their enemies and not necessarily our enemies.

    And by their enemies I mean anyone who would dare question their decisions, tactics, motives, etc. Think Cheney Energy Task Force here.

    I stand by my scenario as mentioned in another topic. Bush represents the naked interests of the powerful. They've decided to trash the social contract. Some are more enlightened than most, like Howard Dean or George Soros, but most are just reflexive, uninteresting personalities. A lot of people are put off by the fact that George Bush acts like he speaks for God. Well, Gnostic Christianity has a very interesting view on this. George Bush, while clearly not representing the True God -- he's too unconscious, blind, and stupid to ever unlock the doors and let that kind of glory shine through -- nevertheless does represent the Demiurge. That's the creator of the universe who's insane because he thinks he's God. "Demiurge." That's the polite way of saying "Jehovah" in mixed company.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#4)
    by Gabriel Malor on Sat Aug 19, 2006 at 01:16:03 PM EST
    LNILR, Of course, there is a major and obvious distinction between this case and the Supreme Court cases you cite: they were Supreme Court cases. As Justice Jackson once wrote "We are not final because we are infallible, but we are only infallible because we are final." Ernesto, I'm hoping you still don't believe that criticism of Judge Taylor's scholarship stems from Republican racism (as you noted in yesterday's post on this topic) given that such leading lights of Democratic thought as Glenn Greenwald, Marty Lederman and Jack Balkin (among many others) have also criticized Taylor's scholarship. [I did respond to you yesterday (with links!), but the moderation queue ate my comment. Apologies.]

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#5)
    by Gabriel Malor on Sat Aug 19, 2006 at 01:20:54 PM EST
    how about the Supreme Court gutting the Fourth Amendment's exclusionary rule this past term in Hudson v. Michigan, turning back the clock to 1910.
    Also, as you well know, there is no Fourth Amendment exclusionary rule. The exclusionary rule was a creation of the Supreme Court (originally only used in the federal courts and much later applied to the states). It has, since its creation, suffered a long declining trend that was only continued in Hudson. The Hudson ruling, despite your frustration, is securely in line with longstanding 4th Amendment jurisprudence. The point of the rule was to deter police misconduct. Where it does not do that, there is no reason for the rule. Hence, Hudson.

    Gabe, I have been reading the right wing blogs and see a lot of overt racism there as well as subtle racism, which is certainly expected from those quarters. It's OK, that's par for the course and I am sure the judge has had to deal with that all of her life. But what, in your own words, is lacking in her scholarship?

    Check out this cartoon from the San Francisco Chronicle.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#8)
    by Sumner on Sat Aug 19, 2006 at 02:05:00 PM EST
    I was especially encouraged last year when The Volokh Conspiracy contributors addressed some of these issues such as here and here. But it is the pure gut instincts obvious here at TL which has prompted my participation, in medias res. The TL's cite including this quote is exquisite:
    "It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece or paper."
    "Demiurge" is a splendid word:
    ...an artificer, as in a worker for the People. The Platonic Craftsman who orders and arranges the physical world, bringing it, as much as possible, into conformity with the best and most rational pattern. The creator of 'positive' evil in the material world.
    Re the previous Robert H. Jackson quote, I prefer this:
    "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
    Data mining and wholesale collection of info includes such myriad diverse spokes as this: 5 U.S.C. 301, Departmental Regulation; 10 USC 136, Under Secretary of Defense for Personnel and Readiness, and E.O.9397 (SSN)
    The purpose of the system of records maintained by the Joint Advertising, Market Research and Studies (JAMRS) is to provide a single central facility within the Department of Defense to compile, process and distribute files of individuals who meet age and minimum school requirements for military service. ... Categories of records in the system: Full name, date of birth, gender, address, city, state, zip code, and where available Social Security Number (SSN), email address, ethnicity, telephone number, high school name, graduation date, Grade Point Average (GPA) code, education level, college intent (if documented), military interest (if documented), field of study, current college attending, ASVAB Test date, ASVAB Armed Forces Qualifying Test Category Score. ... In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, These records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: The DoD 'Blanket Routine Uses' set forth at the beginning of OSD's compilation of systems of records notices apply to this system.


    good post, great comments. not sure of what i think about it all, except for the fact that George W. Bush engages in criminal activities as attested by sitting federal judges and the Supreme Court of the United States. Impeach Bush. On the merits he's been found to be: a) A war criminal. b) A derelict of duty. c) A traitor. Any questions? Read Hamdan v Rumsfeld & ACLU v NSA Impeach Bush!

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#10)
    by Johnny on Sat Aug 19, 2006 at 03:02:33 PM EST
    If you voted for Bush, you have aided and abetted a criminal. Too bad he has stacked the SCOTUS in his favor. The man could claim killing homeless men is in the national interest and Scalia and Roberts would sagely nod and agree. Thank you, Bush supporters for electing someone who feels the office of rpesident is beyond reproach. Clinton was impeached on less.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#11)
    by Sumner on Sat Aug 19, 2006 at 04:11:13 PM EST
    "Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend -- all these transactions and communications will go into what the Defense Department describes as "a virtual, centralized grand database."
    -- New York Times columnist William Safire Except now it's grid computing and much is being farmed out to private contractors. The point of my DoD reference to files kept for purposes of conscripting kids into war, is that upon examination, the component parts making up our total surveillance society, frequently look in order. Over at his blog, Glen Greenwald is staying on point. Things don't really enter the belief systems of people until they have heard them repeated over and over again. That is the premise for Hitler's Big Lie.
    "The lie can be maintained only for such time as the State can shield the people from the political, economic, and /or military consequences of the lie. It thus becomes vitally important for the State to use all its powers to repress dissent, for the truth is the mortal enemy of the lie - and thus by extension, the truth becomes the greatest enemy of the State."
    -- Joseph Goebbels, Nazi Propaganda Minister The self-dealing of this administration and its cronies has been, all along, quite apparent. Complete intelligence against Bush detractors, further facilitates that. But the Bush adherents fall fundamentally within a crowd not generally accustomed to individual critical thinking skills. (Not to be confused to the administration's strategists who are sometimes very clever.) The body of willing Bush followers generally do so on "faith". Consequently, Bush founders frequently in regards to matters of science. Perhaps a more "scientific" approach to political grit might be in order, such as can be found by starting here.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#12)
    by jimakaPPJ on Sat Aug 19, 2006 at 04:49:18 PM EST
    As usual the Left ignores what the Fourth Amendment says:
    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.
    I again call your attention to the word "unreasonable." I again note that this qualifier was put in there because the founders did not consider all searches to be unreasonable, and in fact its purpose is to obviously stop such things as harassment by the police and not stop all searches unless covered by a warrant. I again call your attention to the fact that the actions in question are surveillance of voice/data transmissions from suspected/known terrorists OUTSIDE the US to locations within the US, and from locations within the US to suspected/known terrorists OUSTIDE the US. I again call to your attention that there has been no known DOMESTIC surveillance. It is clear that those who wrote our constitution had common sense in vast quantities. It is a shame that the Far Left does not. Or perhaps it is the Far Left's and Demos hatred of Bush that has clouded their vision and stifled their brains.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#13)
    by jondee on Sat Aug 19, 2006 at 05:34:00 PM EST
    ppj - What's the problem with having to obtain a warrant?

    Jimaka:I again call to your attention that there has been no known domestic surveillance
    And THAT is exactly the point you are refusing to grasp. The Bush League operates in the shadows; their lack of transparency in ALL things is why we must presume that they are,in fact, engaging in this very conduct.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#15)
    by jondee on Sat Aug 19, 2006 at 05:47:02 PM EST
    ppj - As a follow up, what do you think the penalty should be if turns out that the surveillance isnt just of "suspected/known terrorists"?

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#16)
    by Sumner on Sat Aug 19, 2006 at 05:48:37 PM EST
    The late Chief Justice Rehnquist argued in the U.S. v. Kyllo:
    "I think in a Fourth Amendment case, we decide what was actually done, not what something was capable of doing."
    The case dealt with an Agema 210 hand-held thermal imager, FLIR technology, or Forward Looking Infrared Radar. Through-the-walls surveillance has advanced significantly since then. The case was about admissible evidence, anyway. Methods now exist that even monitor the excitement of water molecules in the air for spying within dwellings. Spying has been around for ages. The nightmare is the crux of Intelligence coupled with Operations. Anyone who has even a modicum of understanding of where this science is at must get the shudders upon reflection of where it is heading. This science is tailored to the individual, was refined at Gitmo, and is slated for all of us. Much of what I know about all this is in feeble response to take countermeasures to the constant inundation I personally have to deal with. There are clear metrics for measuring things like comments made in a phone conversation and immediate political fallout resulting therefrom. Open information available on psyops should make your blood run cold. What happy talk that there is no known domestic surveillance. Would that such a fiction were actually true.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#17)
    by jimakaPPJ on Sat Aug 19, 2006 at 05:52:34 PM EST
    Jondee - First, since the Constitution does not call for one when the search does not require one, to do so is to violate the constitution. i.e. It creates the false impression that Judges must decide if one is required. Secondly it creates the risk that, in a very important situation, some judge will decide, for whatever reason, to not grant one. Judges, in case you've missed it, are not immune to attacks of idoitacy. Thirdly it runs the risk that, for what ever reason, the application may exceed the 72 hour rule and important information may be lost. Fourthly it creates precedent that the President must ask judges for their approval of his actions before he can act in defense of the country. The danger in this latter situation is both real and frightening.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#18)
    by jondee on Sat Aug 19, 2006 at 06:00:28 PM EST
    Now to answer my follow up question..

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#19)
    by Sumner on Sat Aug 19, 2006 at 06:21:49 PM EST
    Then-Deputy Attorney General Larry D. Thompson, (the good friend of Justice Thomas) resigned after having signed the order for Canadian citizen Maher Arar to be sent to Syria where he was tortured. But during their confirmation hearings, both Thompson and John Ashroft admitted that they were very concerned for their vulnerablity under SCOTUS decision Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). I tried for several months to get Webster Bivens to agree to let me pitch his story to master filmmaker Spike Lee. Bivens has consistently declined, protesting that "Nobody anywhere even cares about this stuff".

    I was watching a rerun of tha 'Patriot' tonite ..... and there is a scene in tha flick, released circa 2000, wherein The Patriot (Mel Gibson) is grieving over tha recent death of his first-born, Gabriel. His friend and Commanding Officer, tha General, is entreating The Patriot to "Stay the Course." Wouldn't it be ironic ifn K.Rove's re-election rhetorical direction and G. Bush's persistent entreaties to tha patriotism of "Stay tha Course," did in fact begin with tha observation of this singular scene in this Hollywood movie? Scenes of Ronnie Reagan rerun again? And what does this say about us and our brethren? "Some men want fame and status, thinking that they would thus make themselves secure against other men. If the life of such men really were secure, they have attained a natural good; if, however, it is insecure, they have not attained the end which by nature's own prompting they originally sought." - Epicurus a contemporary of Aristotle.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#21)
    by aw on Sat Aug 19, 2006 at 07:54:08 PM EST
    Shorter PPJ: All Bush admin searches are reasonable. How dare you question them.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#22)
    by Gabriel Malor on Sat Aug 19, 2006 at 08:08:25 PM EST
    Ernesto, I encourage you to take a look at the many legal minds who have already taken Judge Taylor's decision to pieces. But, since you ask what I personally find lacking, I will say that immediately upon looking at the decision, I noticed the use of the word "undisputedly" used in multiple instances where the Administration does in fact dispute the Judges conclusion. The judge should have explained her reasoning for finding as she did instead of just dropping in "undisputedly." She does this nine times. As has already been noted elsewhere, the use of the words "undisputedly", "obviously", and "clearly" usually get 1L LRW students failing grades because they are substitutes for reasoning. That was just a clue that this was an incomplete decision. But once you get into the meat of it, it just got worse. There are serious problems with the judge's conclusion regarding standing. Again, as others have noted, expect this to be a primary avenue of attack on appeal. In both the First Amendment section and the Fourth Amendment section, the judge falls back on the "undisputed" language. The result is that we know what she ruled, we just don't really know why. And that's why the decision is being criticized by both the left and the right. Sumner, I prefer this Jackson quote (also from Barnette, which you quoted):
    The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.


    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#23)
    by jimakaPPJ on Sat Aug 19, 2006 at 08:08:43 PM EST
    aw - Shorter still. aw is not capable of refuting my points so he makes dumb statements.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#24)
    by Gabriel Malor on Sat Aug 19, 2006 at 08:13:45 PM EST
    aw, no one said anything like that at all. The two clauses of the 4th Amendment are related, but often used independently. Hence, we have warantless searches that are nevertheless reasonable (for example, public arrests, exigent circumstances, Terry stops, Terry frisks, Chimel searches, border searches, and--of course--consent searches).

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#25)
    by jimakaPPJ on Sat Aug 19, 2006 at 08:35:59 PM EST
    Jondee - If there is no harm, why should there be a penalty? And what harm happens if a third party overhears a conversation but takes no action? You're grasping because you recognize the logic. If all searches required a warrant, then "unreasonable" would not have been inserted. That it was demonstrates that some are reasonable. One of the most obvious examples is the search before boarding an aircraft. No warrant is needed because it is obvious that a reasonable action is to search for bombs, weapons, etc. Another is the use of hi-tech equipment to view checked luggage for bombs. Why doesn't that require a warrant? Millions of people are having their privacy violated, yet no warrant is required. zebm1 - Are you trying to say that we should NOT try and defend ourselves and protect our families with all the technologies we have? That is sophoromic at best, silly at the worst.

    This is a great post - thanks. JimakaPPJ, are you really arguing that the 4th amendment allows searches without a warrant? Did you read the rest of the sentence. A search has to be reasonable, yes, but it also requires a warrant based on probable cause. And how can you claim that there are no known cases of domestic surveillance when your previous para admits that there are?

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#27)
    by Johnny on Sat Aug 19, 2006 at 09:07:47 PM EST
    ...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.
    Jim, we understand you support domestic spying and private, personal information hoarding, that is not the issue. The issue is lack of clarification re. probable cause. I for one, am not comfortable with Uncle Sam spying on my daily activities, looking for an ex post facto reason to justify doing so. You, and apparently millions of other members of the Bush Apologists Club, are totally at ease with the level of intrusion into your daily life. I know, I know... "If you've nothing to hide, why worry?" well, since I have nothing to hide, in no way, shape or form should anything I do come under warrantless surveillance. Easy enough?

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#28)
    by Sumner on Sat Aug 19, 2006 at 09:22:40 PM EST
    Gabriel Malor, your Jackson quote is sublime. Yet Justice Scalia is reported to be a member of Opus Dei,
    "Blessed be pain. Loved be pain. Glorified be pain"
    --Josemarie Escriva, Founder, Opus Dei Bush has been reported to have said of the Constitution,
    "But it's just a goddamned piece of paper!"
    and
    "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator."
    --George W. Bush (Dec 19th, 2000) For example, I have had a pornography commission running for years now. Besides porn, I track the many fictions by the neo-puritans. During Alberto Gonzalez' confirmation hearing, Senator Brownback claimed he and his wife wanted Alberto Gonzalez and his wife to lead the fight against pornography. Alberto Gonzales readily agreed. Senator Sam Brownback has held intellectually dishonest hearings with fanatic religious witnesses attacking and vilifying pornography by claiming "pornography is more addictive than crack cocaine". In all of their various hearings, no contrary evidence gets entertained. Much of the new wholesale surveillance targets sex, porn and nudity. They dumped the first millions on a new pilot project right into my community. The psyops rarely stops. Reason simply gets shouted down by demagoguery. Consider Marc Klaas. He has built a career on the tragic murder of his daughter Polly. He campaigns to punish an entire class or group of individuals, rather than simply Richard Allen Davis, who was convicted for the crime. Same goes for John Walsh, who spews both hate and invective for an entire group or class of people, rather than for the individual responsible for his son Adam's murder. But not so for Sam Knott. His daughter Cara, was murdered by former California Highway Patrolman Craig Peyer, while Peyer was on duty. Yet Sam Knott did not build a career on the campaign that all cops are murderers as a group or class of people. (Even though they all carry weapons and do actually kill quite a few people.) Fear has been exploited and unconstitutional laws are being enacted. So far, it is mostly within the blogs that these power-grabs get identified and challenged. As the character O'Brien put it in George Orwell's masterpiece, the novel 1984,
    "Power is not a means; it is an end...the object of power is power."


    Consider Marc Klaas. He has built a career on the tragic murder of his daughter Polly. He campaigns to punish an entire class or group of individuals, rather than simply Richard Allen Davis, who was convicted for the crime. Same goes for John Walsh, who spews both hate and invective for an entire group or class of people, rather than for the individual responsible for his son Adam's murder.
    What are these "classes of individuals" to which you refer? Pedophiles? Serial killers? What the hell are you talking about? John Walsh targets, very successfully, individuals who are KNOWN to have committed horrific crimes. Speaking of Dick Davis, what the hell is holding up his execution? What crime is worse than taking a little girl from her home and raping and murdering her?

    JR- you are right this WILL be shot down and the left knows it. They still consider it a victory.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#31)
    by Sumner on Sat Aug 19, 2006 at 11:38:15 PM EST
    Yes, the "Tapped" article reveals that Glen Greenwald maintains a rather keen focus and has a remarkably sharp mind. I listened to the high court's oral arguments in Hamdan,twice on C-SPAN. It was riveting. That case may be the clearest predictor of where the court will be when push comes to shove: Loyalty to the nominal unit. On the other subject, Granola, not all pedophiles are molesters, rapists or killers.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#32)
    by Gabriel Malor on Sun Aug 20, 2006 at 12:31:28 AM EST
    The issue is lack of clarification re. probable cause.
    Again, there is some confusion over just what the Fourth Amendment requires. In addition to permissible warantless searches (Chimel searches, Terry frisks, auto exception, consent searches, etc.) there are searches that are permissible short of probable cause. In fact, they largly overlap with those that are permissible without a warrant. The auto exception requires probable cause, but no warrant. However, Terry stops and Terry frisks occur without a warrant and with only "reasonable suspicion" (that is less than PC). Administrative searches conducted to effectuate government objectives other than criminal law enforcement require only reasonable suspicion. And protective sweeps as part of a lawful arrest require only reasonable suspicion.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#33)
    by jimakaPPJ on Sun Aug 20, 2006 at 08:14:56 AM EST
    Johnny - You write:
    I for one, am not comfortable with Uncle Sam spying on my daily activities, looking for an ex post facto reason to justify doing so.
    Neither would I be, Johnny. And when you can show me that is happening, let me know. You see Johnny, such actions by the government would be "unreasonable." Just as stripping a car apart looking for drugs when all the driver has done is speed would be "unreasonable." However, if the driver has resisted arrest, then searching him or a weapon without a warrant is perfectly reasonable. abi - My comments were referring to the warrantless listening to telephone calls from/to suspected/known terrorists in/outside the US that is now the center of discussion. For some reason I thought that was obvious. They were demonstrating that if the search is "reasonable" no warrant is required. You write:
    A search has to be reasonable, yes, but it also requires a warrant based on probable cause
    No, wrong. "Unreasonable" is a qualifier. It describes an act. "unreasonable searches and seizures." If what you claim is true, then the Amendment would read as follows: ::The right of the people to be secure in their persons, houses, papers, and effects, against (xxxx) 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....":: But it doesn't. Our government is designed around defining the rights of the government, and not defining the rights of the people. Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. So "unreasonable" defines the limits of the government's right. It says a search must not be unreasonable and even then the government must have probable cause. But, if the search is reasonable, then nothing further is required. Can the lawfulness of a search be challenged? It's done all the time. Sometimes the courts rule that a search was unreasonable and that a warrant should have been applied for.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#34)
    by roger on Sun Aug 20, 2006 at 08:28:20 AM EST
    Jim, The warrant must be supported by "probable cause".

    Granola, not all pedophiles are molesters, rapists or killers.
    No- I guess they are not, but unless they are, they are not are not being targeted by Mark Klaas or anyone else. Who is John Walsh targeting that does not deserve to be targeted?

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#36)
    by Repack Rider on Sun Aug 20, 2006 at 09:51:17 AM EST
    How hard is it for a nutwinger to grasp? Interception by any governmental or police agency of any electronic communication involving an American citizen inside the United States requires a warrant issued by a judge on the basis of probable cause, in accordance with the Fourth Amendment. The Foreign Intelligence Surveillance Act allows that warrant to be issued retroactively, but it still requires the warrant to be issued. Now for the hard of hearing: THIS MEANS THAT YOU HAD TO HAVE A GOOD REASON TO MAKE THE INTERCEPT BEFORE YOU MADE IT, EVEN IF YOU GET THE WARRANT AFTERWARD. It specifically disallows any form of data-mining to identify subjects of interest. The administration admitted that they didn't bother to get the warrants required by law, and Michael Hayden explained the omission by saying it required too much paperwork. In other words, because it made a RECORD of the event. That alone should be chilling. Of course, that was only cover for the fact that there was no probable cause, and the subjects were identified through computerized analysis of a large number of communications. The administration ADMITS (on the White House website) that they violated the FISA law. The judge was just agreeing with them, and ordering that the violations of the law that they admit in a public document to having made should not take place. This is not complex reasoning, unless you don't want to admit that the Constitution is valid.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#37)
    by jimakaPPJ on Sun Aug 20, 2006 at 11:12:59 AM EST
    Roger - If the act is not unreasonable, then there is no requirement for probable cause. That's my point, and if you disagree you may play the "I'm a lawyer card," but it won't change my mind. Tell me. Why is "unreasonable" in there if probable cause is also needed??? I mean if their are "unreasonable" searches there must be "reasonable" seraches. And if there are reasonable searches, then no warrant is required. Period. Repack - And of course anyone who disagrees with your noble personage is a nutwinger.... Typical.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#38)
    by Bill Arnett on Sun Aug 20, 2006 at 11:47:12 AM EST
    PPJ- Despite your lack of respect for the Constitution and the rule of law in America, should Bush and his Republican Guard succeed in turning America into a despotic state ruled by despot Bush, I assure you the I, and the many true patriots and believers in the true American Way, will mount a rescue attempt to prevent you from being hauled off to a concentration camp - for it is always the sheeple who allow their rights to be infringed upon, and who blindly follow a despotic leader, that are the first to be incarcerated and/or executed. Google Bush + concentration camps + American deserts, click on the second listing, read: The contract--announced Jan. 24 by the engineering and construction firm KBR--calls for preparing for "an emergency influx of immigrants, or to support the rapid development of new programs" in the event of other emergencies, such as "a natural disaster." The release offered no details about where Halliburton was to build these facilities, or when. To date, some newspapers have worried that open-ended provisions in the contract could lead to cost overruns, such as have occurred with KBR in Iraq. A Homeland Security spokesperson has responded that this is a "contingency contract" and that conceivably no centers might be built. But almost no paper so far has discussed the possibility that detention centers could be used to detain American citizens if the Bush administration were to declare martial law. ---- It is kind of sweet, but entirely naive, ppj, to place so much faith in a government running amok. Don't worry too much for, as I said, we true patriots will see that these camps are destroyed and our citizens freed of the chains that bind them - but only you can relieve yourself of the chains that bind your mind.

    "If ye love wealth better than liberty, the tranquillity of servitude than the animating contest of freedom--go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen!" Samuel Adams

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#40)
    by jondee on Sun Aug 20, 2006 at 01:46:05 PM EST
    Of course, most here should be dimly aware that in all liklihood ppj considered the White House "plumbers" and the Iran Contra October Suprise boys emminently "reasonable" also. In fact any course, no matter how unconstitutional and underhanded that advances the cause of killing another hundred thousand or so moos-lims and increasing the debt by another trillion is probobly worth the price in relinquished freedoms and yielding to authoritarian rule in his addled brain.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#41)
    by Johnny on Sun Aug 20, 2006 at 03:37:18 PM EST
    However, if the driver has resisted arrest, then searching him or a weapon without a warrant is perfectly reasonable.
    That has absolutely no bearing on the subject at hand. I am not resisting arrest in any way, shape, or form. Nor am I in any way acting like a suspected terrorist. There is no reason to monitor my activities. Period. You think it is ok, I do not. It is common knowledge that all cell phone transmissions are monitored, all email is monitored, all land lines are monitored. I do not need to link you, you have ignored all links in the past proving that your personal life is being logged.

    JimakaPPJ, congratulations for trying to rewrite the constitution. That takes gumption. But unfortunately for you, it says what it says. And what you're trying to make it say is just - well, unreasonable. Regarding the conversations themselves, since when does an american citizen give up his rights or his citizenship for that matter because he happens to be talking on an overseas call? Words mean what they mean, JimakaPPJ, not what you'd like them to mean.

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#43)
    by Repack Rider on Sun Aug 20, 2006 at 04:26:13 PM EST
    PPJ:
    And of course anyone who disagrees with your noble personage is a nutwinger.... Typical.
    Don't lie about what I said. A "nutwinger" is someone who disagrees with the Constitution while claiming to be a "patriot."

    Re: Swiftboating the Fourth Amendment in the Name (none / 0) (#44)
    by Slado on Sun Aug 20, 2006 at 06:05:54 PM EST
    I heard on NPR that this verdict is on shakey legal ground and that it is likely to be overturned and that DailyKos of all people actually said this was a poor decision by the judge. Not that they didn't agree with it but that the way the judge made the decision made it likely that it would be overturned. Also isn't this just the first round? Aren't we likely to see this decided by Roberts and Alito. Can a lawyer give me an unbiased opinion?