Friday, December 23, 2005

Administration's Broad, Baseless Searches

From several days ago (ah, the holidays), TalkLeft posted the goods on the current Administration justification for the President's usurpation of power.

DOJ says the President's actions were justified and legal by virtue of:
  • Article II of the Constitution
  • The Authorization for the Use of Military Force ("AUMF") of September 18,2001, 115 Stat. 224 (2001)
  • The 2002 FISA Review Court Ruling (background here.)
  • Principles of statutory construction that apply when there's an ambiguity
  • The Fourth Amendment's reasonableness requirement allowing for warrantless searches upon a showing of special need under the totality of the circumstances.

One Supreme Court case they cite is United States v. United States District Court, which they only used to point out that the Supreme Court differentes between domestic and foreign threats.

But the entirety of that ruling upholds the requirement that the Executive, contrary to the fifth assertion above, cannot be the determiner of what is reasonable, and that warrants are absolutely necessary to meet the requirements of the 4th Amendment.

Some have argued that "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable," United States v. Rabinowitz, 339 U.S. 56, 66 (1950). 16 This view, however, overlooks the second clause of the Amendment. The warrant clause of the Fourth Amendment is not dead
The Fourth Amendment contemplates a prior judicial judgment, 18 not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.

The government in this case argued:

  • National security interests created a special circumstance, and that surveillance was simply being done to collect information, not for prosecution.
  • That the courts were not competent to judge the "complex and subtle factors" involved in determining probable cause.
  • That giving the courts the information necessary to determine probable cause would present a danger to the national security because of the breach of secrecy, and the greater potential for leaks.

The court considered these arguments and rejected them.

The court did suggest that Congress could make a law tailored to the specific needs of national security, the sensitivity of establishing probable cause, and a less stringent time and reporting requirement. The court did not, however, exempt the Executive from seeking a warrant, and did not allow the Executive to perform baseless, broad searches.

Today I found this via Atrios
What has not been publicly acknowledged is that N.S.A. technicians, besides
actually eavesdropping on specific conversations, have combed through large
volumes of phone and Internet traffic in search of patterns that might point to
terrorism suspects. Some officials describe the program as a large data-mining

This Administration is so far inside their bubble they continue to hand critics the rope to hang them with.

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