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In reply to the discussion: Isn't it amusing to see all the Obama defenders ignoring the issue of mass surveillance? [View all]OnyxCollie
(9,958 posts)158. I'm not an expert on Constitutional law.
But I know a hell of lot more about this issue than you do.
The Fourth Amendment states:
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.
In Katz v. United States, 389 U.S. 347 (1967), Justice Stewart makes it clear that the Fourth Amendment applies not only to tangible things, but to conversations as well (id at 353).
At issue in the case was the listening and recording of a phone call made from a phone booth in which betting information was transmitted across state lines in violation of 18 U.S.C. § 1084. The surveillance was done from outside the phone booth and without a warrant. It was determined that recording conversations without physical intrusion is in violation of the Fourth Amendment (id).
In delivering the opinion of the Court, Justice Stewart declared that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions. (foot note omitted) (id at 357). The Government argued that an exception should be made to allow for surveillance without prior judicial approval. Citing Beck v. Ohio 379 U.S. 89, 96, (1964), Justice Stewart responded, Omission of such authorization bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment. (id at 358). The Court overturned the conviction of the petitioner, obtained through improper procedures.
Addressing the need for authorizing wiretaps, Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510 et seq.) (Title III) allowing warrants for wiretaps for law enforcement purposes (Bazan & Elsea, 2006). Title III was primarily for domestic law enforcement, but did have a provision (18 U.S.C. § 2511(3)) for national security:
Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government
The government relied on § 2511(3) in United States v. United States Dist. Ct., 407 U.S. 297 (1972) to exempt itself from prior judicial approval, contending that in excepting national security surveillances from the Acts warrant requirement, Congress recognized the Presidents authority to conduct such surveillances without prior judicial approval. (id). In that case, three defendants were charged with conspiring to destroy, and one of them destroying, government property. The surveillance used to apprehend the defendants was conducted without a warrant, but an affidavit from the Attorney General had stated that he approved the wiretaps for the purpose of gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government. (id).
Refuting the Governments claim of authority, Justice Powell stated, Section 2511(3) certainly confers no power It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them. (id at 303).
Justice Powell noted the lack of evidence of involvement by a foreign power in the Attorney Generals affidavit (id at 308, 309). Operating under the pretense of protecting national security, Justice Powell warned, the Government may abuse its power by preventing political dissent:
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society (id at 314).
By taking upon itself the role of a neutral and detached magistrate in addition to investigator and prosecutor, Justice Powell cautioned, Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. (id at 317) adding unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. (id).
The Government argued that the requirement of prior judicial review to obtain a warrant
would create serious potential dangers to the national security and to the lives of informants and agents
Secrecy is the essential ingredient in intelligence gathering; requiring prior judicial authorization would create a greater danger of leaks
because, in addition to the judge, you have the clerk, the stenographer and some other officer like a law assistant or bailiff who may be appraised of the nature of the surveillance (id at 319).
The Court refused this claim, stating that security concerns could be satisfied through proper administrative measures (id at 321).
The Court suggested Congress might consider creating legislation to apply to domestic security surveillance, recognizing that domestic intelligence gathering for national security may not be as precise as for standard law enforcement (id at 322). However, government interests and civil rights could be balanced with reasonable procedures (id at 323).
Following the revelation by the Church Committee of serious abuses of electronic surveillance for national security purposes, the Senate Judiciary Committee enacted the Foreign Intelligence Surveillance Act of 1978 (FISA) (Bazan & Elsea, 2006). The bill was designed to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it. (Bazan & Elsea, 2006).. The Senate Judiciary Committee made clear the intent of Congress to accommodate the Presidents use of an inherent constitutional power:
The basis for this legislation is the understanding concurred in by the Attorney General that even if the President has the inherent constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance. (Bazan & Elsea, 2006).
Section 2511 of Title III was changed, removing the section pertaining to surveillance executed according to the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack and inserted in its stead § 2511(2)(f), which made Title III and FISA the exclusive means to authorize electronic surveillance within the United States (Bazan & Elsea, 2006). This was done to put to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillances in the United States outside of the procedures contained in chapters 119 and 120 . (Bazan & Elsea, 2006, quoted from S. Rep. No. 95-604(I), at 63 (1978)).
While Title III dealt with electronic surveillance from a law enforcement standpoint, requiring a more stringent standard to meet Fourth Amendment guaranties, i.e. a showing of probable cause to believe that the target of the surveillance has committed, is committing, or is about to commit a crime, the FISA standard is lower, requiring a showing of probable cause to believe that the target of the surveillance is a foreign power or an agent of a foreign power (Bazan & Elsea, 2006). This requirement in FISA was removed briefly by the USA PATRIOT Act following the terrorist attacks of September 11, 2001 (Bazan & Elsea, 2006).
FISA provides a few exceptions to the warrant requirement to conduct electronic surveillance. 50 U.S.C. § 1802 provides for electronic surveillance of foreign powers without a court order upon Attorney General certification. This certification, in writing and under oath, states that the electronic surveillance is solely directed at means of communications used between or among foreign powers or on property or premises under the open and exclusive control of a foreign power where there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party and minimization procedures are put in place. (Bazan & Elsea, 2006). 50 U.S.C. § 1805(f) provides for emergency authorization of electronic surveillance for up to 72 hours while a warrant is being procured from a FISA court judge. 50 U.S.C. § 1811 provides for electronic surveillance without a court order for 15 days following a declaration of war by Congress. It is important to note that the Authorization to Use Military Force (AUMF) issued by Congress after the terrorist attacks of September 11, 2001 did not constitute a formal declaration of war.
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Isn't it amusing to see all the Obama defenders ignoring the issue of mass surveillance? [View all]
cali
Jun 2013
OP
Funny, haven't seem you starting or posting much in any threads about anything proactive.
KittyWampus
Jun 2013
#74
So what do you have a problem with in what they are saying? You are willing to give up your liberty
rhett o rick
Jun 2013
#132
And how do you know they are "keeping track of ill-wishers and and conspiracies to do our country
rhett o rick
Jun 2013
#192
Really? Haven't seem those posts. You make it seem like you've started many OP on them…
KittyWampus
Jun 2013
#72
Why don't you post something on Wyden, Udall and Leahy? Lots has been posted, right here
sabrina 1
Jun 2013
#55
Were you around during the Bush years when they were implementing these policies?
sabrina 1
Jun 2013
#78
About the only things BHO has done wrong are the continuance of any of junior's initiatives,
indepat
Jun 2013
#100
Sabrina the problem with Bush was that his way was clearly illegal because he was
cstanleytech
Jun 2013
#122
I remember exactly what Bush did. Then they changed the FISA law by adding an amendment
sabrina 1
Jun 2013
#128
Oh I was around and I disagree with granting him immunity from it still however
cstanleytech
Jun 2013
#136
No law trumps the Constitution. Not that it hasn't been tried in the past. So I do not accept it as
sabrina 1
Jun 2013
#145
Until a court says the law is or was unconstitutional its the law just like how
cstanleytech
Jun 2013
#148
You say, "Until a court ..." If you are a legal expert, where's your legal authority for that?
AnotherMcIntosh
Jun 2013
#170
Not clear, are you saying you approve of the Bush spy machine currently being used by the government
rhett o rick
Jun 2013
#133
Actually the number of posts claiming "hero" and "message, not messenger" have remained
sibelian
Jun 2013
#15
I think it would be better to separate the issue both from Obama and Snowden
Douglas Carpenter
Jun 2013
#6
that irritated me too... I have not been excessively critical of President Obama nor have you -
Douglas Carpenter
Jun 2013
#10
Some say that everthing being done is legal. 18 U.S.C. § 2511 says that it is not.
AnotherMcIntosh
Jun 2013
#67
What probable cause was presented before a court, with evidence of wrong doing to justify the
sabrina 1
Jun 2013
#143
Since we are dealing with the particular law the other poster offered, none is needed. It's an
stevenleser
Jun 2013
#144
There is no exception to the 4th Amendment unless there has been some kind of coup.
sabrina 1
Jun 2013
#146
Since you are not an expert on Constitutional law your opinion on the subject is irrelevant
stevenleser
Jun 2013
#147
I've said the same thing to you under different OPs. It's your opinion that this constitutes
stevenleser
Jun 2013
#163
I don't care who signed off on it. Every respected Civil Liberties Lawyer I know along with
sabrina 1
Jun 2013
#164
Did those lawyers who commented see the warrant? I'll be they haven't and are guessing.
stevenleser
Jun 2013
#166
What warrant are you talking about? We all saw the warrant, or what was supposed to be the warrant.
sabrina 1
Jun 2013
#168
K&R... I think if anyone doubted before how creepy and authoritarian our government has become
woo me with science
Jun 2013
#9
What really gripes me is they wouldn't be doing those things if this were 5 years ago
MotherPetrie
Jun 2013
#20
Isn't it amusing that people don't acknoweldge that President Obama put restrictions in
graham4anything
Jun 2013
#21
Polls show- America is OK with the whole thing. Keeping America safe is the #1 concern of the
graham4anything
Jun 2013
#25
Yep. It's already devolved into that and the 2014 elections haven't even started.
BlueCaliDem
Jun 2013
#75
Good point...It's the Private Contractors who can sell info to whomever they wish to...
KoKo
Jun 2013
#31
Exactly right. Contractors and their employees are in it for the money. There is no way that
AnotherMcIntosh
Jun 2013
#180
Well there are cops, military and other gov DU members ...and the cult of personallity.
L0oniX
Jun 2013
#42
No doubt there are some issues of concern but thats not a reason to trash the entire system.
DCBob
Jun 2013
#110
Home of the naive huh ...nice modification. Must be just muscial lip service eh?
L0oniX
Jun 2013
#112
Yea well I don't control who is calling what "terrorism". A witch hunt in the USA is not acceptable
L0oniX
Jun 2013
#121
How many "Al-Qaeda" terrorists do you think exist? Are they killing more people than the number of
L0oniX
Jun 2013
#127
The phrase "deserve neither Liberty nor Safety" is the attitude that I would expect of Dick Cheney.
AnotherMcIntosh
Jun 2013
#197
Your town of DC lives by this sort of thing, Bob. You did not 'give' your privacy
Bluenorthwest
Jun 2013
#91
I can assure no one here feels like they are living with a "blankie and warm security milk".
DCBob
Jun 2013
#109
Blame Snowden. Snowden through his drip, drip, drip of leaks puts continuing focus
pnwmom
Jun 2013
#37
I would say that those who don't care about my privacy rights also don't care what happens here.
L0oniX
Jun 2013
#41
"There is no such thing." The Federation of American Scientists disagrees with you.
pnwmom
Jun 2013
#53
That article is explicit in addressing a radiological attack, not a nuclear suitcase bomb.
morningfog
Jun 2013
#73
A dirty bomb with nuclear materials is often referred to as a suitcase bomb. It requires
pnwmom
Jun 2013
#79
There is more to come. No doubt it will include foreign and domestic actions.
morningfog
Jun 2013
#49
Oh yeah, authoritarian goons are hilarious, and it's all a big pile o' laughs
kenny blankenship
Jun 2013
#39
See Jill Simpson's piece attacking the National Security Complex & calling upon POTUS to investigate
Cliff Arnebeck
Jun 2013
#44
But such is the irresistible nature of truth, that all it asks, and all it wants is the liberty of
Tierra_y_Libertad
Jun 2013
#46
I'm discouraged by the belief in belief that there is a single definition of liberal or Democratic
loyalsister
Jun 2013
#65
While I strongly support economic justice, an applaud others that do including politicians even when
AnotherMcIntosh
Jun 2013
#104
SO> you start a thread attacking other DU'ers BUT where's your threads on Feinstein's legislation?
KittyWampus
Jun 2013
#70
do you mean Leahy's legislation? Because Feinstein hasn't introduced any legislation
cali
Jun 2013
#95
Nice to see you have everyone in their proper boxes tied up neatly with a bow.
Buzz Clik
Jun 2013
#80
Actually, it's pretty disturbing; following charismatic leaders while ignoring common sense
Zorra
Jun 2013
#92
They are skipping over denials of blanket surveillance now, and declaring it wise and good.
kenny blankenship
Jun 2013
#97
Who are just as capable of being wrong as anyone else. I've never seen any of those three reference
stevenleser
Jun 2013
#123
I'm rather amused at all of the above ignoring the facts of the situation.
stevenleser
Jun 2013
#115
My "opinions" have multiple fact based sources, sources that you are unable to refute.
stevenleser
Jun 2013
#120
But but but GiGi had a brief dalliance with pornography and "Criticism is Racism!(tm)" nt
DRoseDARs
Jun 2013
#135
Ah, Obama Freedom - That Indescribable Feeling Of Being Coddled In The Warm Glow Of Surveillance
cantbeserious
Jun 2013
#140
What is one supposed to **DO** about the "massive, ever expanding national security state"
CakeGrrl
Jun 2013
#151
I bet the Obama Defenders have been in love with Obama since even before 2008 or at least 2004
AZ Progressive
Jun 2013
#154
You won't get a fact based response. You will either get an ad-hominem response, or ignored. nt
stevenleser
Jun 2013
#200