Date: Wed Dec 28 00:33:39 2005
From: pauls at utdallas.edu (Paul Schmehl)
Subject: Spy Agency Mined Vast Data Trove

--On December 27, 2005 2:49:18 PM -0800 Benjamin Franz 
<snowhare@...ongo.org> wrote:

> On Tue, 27 Dec 2005, Paul Schmehl wrote:
>
>> Well, no, they are not "clearly illegal".  That is a matter of opinion
>> and  not law.  In fact, all legal precedents indicate that the program
>> is legal,  within the purview of the President's powers under Article II
>> of the  Constitution.
>
> Um. No.
>
> What he has done is attempt to completely gut the 4th Amendement of the
> US Constitution of any meaning. To wit:
>
>    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.
>
Again, note the modifier, "unreasonable".  There are at least 26 known 
instances where you can be arrested without a warrant and/or your home 
searched without a warrant.  The key is "unreasonable" searches.

> I don't see a 'except in time of war' clause anywhere. Do you?
>
You don't have to.  You can read the Supreme Court decisions and quickly 
realize that no right is absolute.  The classic example is yelling "Fire!" 
in a crowded theatre.  When your exercise of your rights begins to infringe 
on the rights of others, then your rights are subsumed by the needs of the 
greater.  You don't have the right to be a terrorist and plot the murder of 
thousands and expect to be protected by the US Constitution from any 
inquiry at all into your activities.  In fact there's a sound legal 
argument that you can be arrested and jailed without probably cause or 
warrant and never see the light of day until the President decides it's OK. 
That's written right in to the Constitution, so it's a bit hard to argue 
that it doesn't exist.

As one Supreme Court justice once said, "The Constitution is not a suicide 
pact."

> It was simply never conceived that an administration would attempt to gut
> the 4th Amendment by force of sheer linguistic trickery. The second
> sentence clearly is defining when warrants for searches allowed by the
> first sentence may be issued. _Implicitly_ those searches may only be
> legally done using a legally issued warrant (no warrantless searches or
> the entire Amendment would be meaninglesss). But it fails to say so
> explictly.
>
Then you must explain how, for example, a police officer can enter your 
house without your permission and search your house without your permission 
if there are "exigent circumstances".  Warrantless searches are done 
routinely and accepted by the courts without question, if the circumstances 
fit an accepted set of criteria.

Furthermore, if you think this administration is the first to do 
warrantless searches, then you're naive.  Just seven months after FISA 
became Public Law 95-511, Jimmy Carter signed an order for warrantless 
searches of electronic communications.

> Sooner or later the courts will very likely slap him down. If he is very
> unlucky, he will lose his impeachment-proof majority in Congress next
> year and be impeached for it.
>
Extremely unlikely.  All court precedent is on his side.

> But if the rest of us are very unlucky, this huge step towards
> totalitarianism by the Bush administration will be let stand as a very
> bad precedent.
>
You don't have a clue what totalitarianism is.  Try moving to North Korea 
or China, for example.  Great Britain will soon have a system that can 
photograph your car's license plate *on every highway in Britain*, so that 
the police can tell exactly where you were, where you went, how you got 
there, how fast you drove, etc.,etc.

> I will guarantee you that, if it stands, historians in a century or so
> will point to Bush's administration as the point when the Republic
> clearly had made the transition to a Dictatorship where laws were in
> practice whatever the President said they were, and the "goddamned piece
> of paper" [1] called the US Constitution was just irrelevant.
>
People said the same thing about Lincoln when he suspended habeas corpus. 
They even called him "King Abraham" and "dictator".  The Chief Justice of 
the Supreme Court complained that what Lincoln was doing was 
unconstitutional but he was powerless to do anything about it because 
"Lincoln controls the army."

Now he is thought to be one of the greatest Presidents we've ever had.

Before you have an apopleptic fit, you might want to bone up on your 
history a little.  Or ditch some of the paranoia.

Paul Schmehl (pauls@...allas.edu)
Adjunct Information Security Officer
University of Texas at Dallas
AVIEN Founding Member
http://www.utdallas.edu/

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