Thursday, February 02, 2006

Warrants? We Need Stinking Warrants!

Gov. Owens on Jay Marvin's show this morning, after pretending the Constitution doesn't require warrants, dismissed Bush's own words about wiretapping and warrants when Jay played the soundbite:

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

Owens said that Bush was talking about a different issue. I wish Jay hadn't just called them Republican Talking Points and let it go, because I'd like to know what the other issue is.

First, go to the source.

Further examination of the totality of the quote shows Bush was talking about roving wiretaps. In an age of cell phones, a wiretap would follow the person, not the phone.

But a roving wiretap means -- it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he'd do? He'd get him another phone, particularly with the advent of the cell phones. And so he'd start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on -- roving wiretaps were available for chasing down drug lords. They weren't available for chasing down terrorists, see? And that didn't make any sense in the post-9/11 era. If we couldn't use a tool that we're using against mobsters on terrorists, something needed to happen.

The Patriot Act changed that. So with court order, law enforcement officials can now use what's called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies.

Bush took special pains to point out that he would still need to get a warrant, so I still can't figure what's so different about the issue.

Maybe it has to do with the Ticking Time Bomb Scenario. I try not to wade into the insanity/inanity that exists on the far-right, but once in a while, to understand the arguments that seemingly normal people like Gov. Owens come up with, I have to do it. I'm not even touching what I saw in Freeperville, but on to another purveyor of Right Wing Talking Points, which was bad enough.


Suppose the National Security Agency receives a tip that one of the merchant ships anchored in New York Harbor contains three hydrogen bombs – and that the captain of this bomb ship is on the telephone with an Arab consulate arranging to evacuate himself and crew along with securing their transfer off the ship and onto a submarine.

Should the National Security Agency, or any other of our intelligence or crime-fighting agencies, be required to seek a court order before tapping that phone?

No, which is why they have 72 hours after the fact to obtain the warrant. But the President would still need to get a warrant. That can't be the difference.

So I looked to Wikipedia, a generally neutral source. The Wikipedia article is under dispute on the FISA provisions, and an objector posted the relevant section of FISA which allows the Pres to spy on people with terrorist links. Apparently the President is authorized to conduct warrantless surveillance on foreign powers for up to one year.

"Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" and that "the surveillance must be aimed at 'the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers.'" and that "as defined in section 1801, subsection (a), 'foreign power' can mean 'a group engaged in international terrorism or activities in preparation therefore.'"

Both the merchant ship and the Arab consulate would be defined as foreign powers under FISA. So this situation is covered twice. Under the PATRIOT Act, the President has 72 hours after tapping the wire to get a warrant. Under FISA, he could be monitoring the Arab Consulate for up to a year without a warrant, at which time he would need to get a warrant or stop the surveillance.

But the words "need to get a warrant" keep popping up. And why? Because the 4th Amendment -- a part of the Constitution, the Supreme Law of the Land, changeable only by another Amendment, not an act of Congress, the President, or even the Governor of Colorado -- says so.

It's also the way it should be. Bush said so when he admitted publicly, without prodding, that wiretaps require warrants, and when his Administration said FISA was more than adequate to meet our surveillance needs.

If the Pres is just interested in spying on terrorists, that power is well covered. So why ignore the law? I believe it's the other spying he wants to do, on domestic groups which don't like him, like those damn Quakers. He has the technology to cast a wide net to do it, to spy on even purely domestic calls, whether connected with terrorism or not. But since they're not foreign powers and he has no probable cause, his searches would be unreasonable, therefore warrantless and illegal.

And some people don't want a check on this?

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