Judge Nixes Warrantless Surveillance
- Thread starter Chadman
- Start date
fkna, that's worth 4 beers and 2 shots right there. ....but of course gw has credits for a solid night of drinks on his own rights.
....I have a strange feeling that if GW were 10 years yopunger and single he would be making the same posts as I. ....GW, yes/no?
At the end of the day, brianz is probably correct - basically it makes no difference and we;re all pawns.
drunkk smrfy outy!
......ps these are the nights i wish i was still in vegas. only 230, but everything doine. thats WRONG!!!!
fear mongering???---So you think at the present we have nothing to fear--maybe you need to watch a few replays of 911--
I am against invasion of privacy on general population as much as anyone
I guess where we differ is IMO death and destruction that has allready occurred-and still exists-- trumphs the hell out of some hypothetical event that may occur in future--and what are the consequences of each.
If per chance there is abuse in future detrimental to law abiding citizens then you and I both climb on them with both feet and correct prob--fair enough?
I am against invasion of privacy on general population as much as anyone
I guess where we differ is IMO death and destruction that has allready occurred-and still exists-- trumphs the hell out of some hypothetical event that may occur in future--and what are the consequences of each.
If per chance there is abuse in future detrimental to law abiding citizens then you and I both climb on them with both feet and correct prob--fair enough?
Every time this subject comes up, somebody asks what the problem is with following FISO rules. That is, placing the wiretap and then getting a warrant within 3 days. You know, following the law. To date, I don't believe that has been answered.
Wayne,
It's interesting that a self-described strict 'law and order' type like yourself gets all riled up and bothered because somebody lied about a blow job, thus breaking the law, yet unlawful warrantless wiretaps really don't bother you. Seems strange, but I guess it depends on what party is involved. :shrug:
Wayne,
It's interesting that a self-described strict 'law and order' type like yourself gets all riled up and bothered because somebody lied about a blow job, thus breaking the law, yet unlawful warrantless wiretaps really don't bother you. Seems strange, but I guess it depends on what party is involved. :shrug:
No - I don't need to see more replays of 9-11. Believe me, it's etched in my brain forever. But if 9-11 is your reason, then why do you support anyone in this administration at all? They blundered every chance to stop 9-11 from happening as bad as anyone - and STILL did not get Bin Laden. It's unbelievably ridiculous. Unwarranted wiretaps were not the difference between WTC attack happening or not - complete incompetence was.
Yes, fear-mongering. I guess it's all Republicans have left at this point. It's the Ace up their sleeves at all times - as if they are the only ones who can save us. They have done nothing special at all. They haven't gone after *REAL* things to make us safer - better border control, not promoting Arab companies to run our ports, etc etc. No, they've been more interested in ways to spy on average Americans. It's not average Americans that they should be concerned with. BUT they do a great job of spinning it that way.
By the way, DTB - How did you feel about Senator DeWine from Ohio doctoring 9-11 footage for his scare tactic commercial? Was that as bad as the Lebanese photographers?
It's all the Republicans have left at the moment - FEAR.
...I'm fine with your compromise if it comes to that. I'll quote you on that.:SIB
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What if 3 days is one day late--do would you want consequences on your shoulder--I doubt it.
I see your still on "blow job" as the offense and not obstruction of justice and lying under oath.
Didn't see anywhere in his disbarrment or his pergury/obstruction convictions where word blow job ever came--only place I seen it- is liberals trying to justify the above 1st time ever disgraces of sitting pres--would imagine we'd had MANY more perjuries had he not failed to recall or pleaded the 5th 100's of times in depositions--as matter of record failed to recall 267 times on one deposition in one day on matters not involving the Blowjob.
Would you admit a little selective Arkansas Alzeimers--however will say he learned from his mistakes--about getting caught lying that is
I see your still on "blow job" as the offense and not obstruction of justice and lying under oath.
Didn't see anywhere in his disbarrment or his pergury/obstruction convictions where word blow job ever came--only place I seen it- is liberals trying to justify the above 1st time ever disgraces of sitting pres--would imagine we'd had MANY more perjuries had he not failed to recall or pleaded the 5th 100's of times in depositions--as matter of record failed to recall 267 times on one deposition in one day on matters not involving the Blowjob.
Would you admit a little selective Arkansas Alzeimers--however will say he learned from his mistakes--about getting caught lying that is
"By the way, DTB - How did you feel about Senator DeWine from Ohio doctoring 9-11 footage for his scare tactic commercial?"
Not familiar with it Smurph--but will take your word for it--deception is deception regardless who does it--
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"But if 9-11 is your reason, then why do you support anyone in this administration at all? They blundered every chance to stop 9-11 from happening as bad as anyone"
Agree on 1st part pre 911--GW was just as aware of 1st attack on trade towers as Bill was and did little--
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Still don't see fear mongering when there is clear and present danger--I expect dems to pick up a few seats in 06--but see no way country will put party in power in 08 who are against patriot act--any marginal form of terrorist survailance--push for defence of terrorist while calling our troops cold blooded killers--going as far as having ex attorney general defending Saddam ect ect ect.
Only hope is if they somehow push through allowing felons to vote--that might be enough to tip the scales with their auto-matic vote clientele
Not familiar with it Smurph--but will take your word for it--deception is deception regardless who does it--
++++++++++++++++++++++++++++++++
"But if 9-11 is your reason, then why do you support anyone in this administration at all? They blundered every chance to stop 9-11 from happening as bad as anyone"
Agree on 1st part pre 911--GW was just as aware of 1st attack on trade towers as Bill was and did little--
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Still don't see fear mongering when there is clear and present danger--I expect dems to pick up a few seats in 06--but see no way country will put party in power in 08 who are against patriot act--any marginal form of terrorist survailance--push for defence of terrorist while calling our troops cold blooded killers--going as far as having ex attorney general defending Saddam ect ect ect.
Only hope is if they somehow push through allowing felons to vote--that might be enough to tip the scales with their auto-matic vote clientele
What if 3 days is one day late--do would you want consequences on your shoulder--I doubt it.
I see your still on "blow job" as the offense and not obstruction of justice and lying under oath.
Didn't see anywhere in his disbarrment or his pergury/obstruction convictions where word blow job ever came--only place I seen it- is liberals trying to justify the above 1st time ever disgraces of sitting pres--would imagine we'd had MANY more perjuries had he not failed to recall or pleaded the 5th 100's of times in depositions--as matter of record failed to recall 267 times on one deposition in one day on matters not involving the Blowjob.
Would you admit a little selective Arkansas Alzeimers--however will say he learned from his mistakes--about getting caught lying that is
This is entirely about Clinton and never once addressed the core question of Kosar's post. However.... it seems that you have strong feelings on the Clinton situation based on the fact that he committed perjury (even if it was regarding a private matter dealing with his private life). That's fine. Again, you're a "law and order" type, and perjury is perjury regardless of the subject matter. So why aren't you fiercely opposed to a blantant violation of the bill of rights? Seems to be pretty "law and order" to me.
I've said it several times... I don't even take a side on the wiretapping issue, but setting aside the facts around the issue and looking at it from a strictly constitutional prespective, it's as blatant of a violation as Clinton's prejury.
As for the Dewine stuff, just do a google search of "Dewine" and "9/11" and you'll find plenty of info on it. Seems unnecessary to me since I thought he was going to win regardless.
Not sure what reasonable candidates are doing this. Could be extreme exaggeration of Murtha?
There are 12 Iraq War vets running for congress in November. 11 of them are Democrats. Not sure what that means, but it's not an indication that the Dems are party against the troops or in favor of terrorists.
And remember, despite the talk and the spin, Bush has continued to aid terrorists the last few years because of Iraq and refusing to get us less dependent on oil.
Experts Fault Reasoning in Surveillance Decision
Experts Fault Reasoning in Surveillance Decision
By Adam Liptak of The New York Times
Published: August 19, 2006
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 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.?
The main problems, scholars sympathetic to the decision?s bottom line said, is that the judge, Anna Diggs Taylor, relied on novel and questionable constitutional arguments when more straightforward statutory ones were available.
She ruled, for instance, that the program, which eavesdrops without court permission on international communications of people in the United States, violated the First Amendment because it might have chilled the speech of people who feared they might have been monitored.
That ruling is ?rather innovative? and ?not a particularly good argument,? Jack Balkin, a law professor at Yale who believes the program is illegal, wrote on his Web log.
Judge Taylor also ruled that the program violated the Fourth Amendment?s ban on unreasonable searches and seizures. But scholars said she failed to take account of the so-called ?special needs? exception to the amendment?s requirement that the government obtain a warrant before engaging in some surveillance unrelated to routine law enforcement. ?It?s just a few pages of general ruminations about the Fourth Amendment, much of it incomplete and some of it simply incorrect,? Orin S. Kerr, a law professor at George Washington University who believes the administration?s legal justifications for the program are weak, said of Judge Taylor?s Fourth Amendment analysis on a Web log called the Volokh Conspiracy.
Judge Taylor gave less attention to the more modest statutory argument that has been widely advanced by critics of the program. They say that it violates a 1978 law requiring warrants from a secret court and that neither a 2001 Congressional authorization to use military force against Al Qaeda nor the president?s constitutional authority allowed the administration to ignore the law. A recent Supreme Court decision strengthened that argument. Judge Taylor did not cite it.
Some scholars speculated that Judge Taylor, of the Federal District Court in Detroit, may have rushed her decision lest the case be consolidated with several others now pending in federal court in San Francisco or moved to a specialized court in Washington as contemplated by pending legislation. Judge Taylor heard the last set of arguments in the case a little more than a month ago.
The decision has been appealed, and legal scholars said Judge Taylor had done the American Civil Liberties Union, which represents the plaintiffs, few favors beyond handing it a victory. On the other hand, they added, the appeals court is bound to examine the legal arguments in the case afresh in any event.
Indeed, Cass R. Sunstein, a law professor at the University of Chicago, predicted that the plaintiffs would win the case on appeal, but not for the reasons Judge Taylor gave.
?The chances that the Bush program will be upheld are not none, but slim,? Professor Sunstein said. ?The chances that this judge?s analysis will be adopted are also slim.?
Eugene Volokh, a law professor at the University of California, Los Angeles, who presides over the Volokh Conspiracy Web log and says he is skeptical of the legality of the wiretapping program, called the decision ?not just ill-reasoned, but rhetorically ill-conceived.?
?If I were the A.C.L.U.,? Professor Volokh said, ?I would rather have a decision that came across as more-in-sorrow-than-in-anger and that was as deliberate, meticulous, thoughtful and studiously impartial as possible.?
Anthony Romero, the executive director of the A.C.L.U., said Judge Taylor?s decision represented vindication of established limits on the scope of executive authority.
?Ultimately,? Mr. Romero said, ?any doubts about the decision will be taken up on appeal by sitting federal judges rather than pundits or commentators.?
Judge Taylor, a longtime trial court judge who was appointed by President Jimmy Carter, enjoys a good reputation among lawyers who have appeared before her, according to anonymous comments collected by the Almanac of the Federal Judiciary.
?Lawyers interviewed rated Taylor high in legal ability,? the almanac concluded. The eight quoted comments ranged from enthusiastic (?She is smart as hell?) to lukewarm (?She is competent?).
Supporters of the program, disclosed by The New York Times in December, suggested that Judge Taylor?s opinion was as good a way to lose as any.
?It?s hard to exaggerate how bad it is,? said John R. Schmidt, a Justice Department official in the Clinton administration who says the program is legal. He pointed to Judge Taylor?s failure to cite what he called several pertinent decisions, including one from the Foreign Intelligence Surveillance Court of Review in 2002 that said it took for granted that Congress ?could not encroach on the president?s constitutional power? to conduct warrantless surveillance to obtain foreign intelligence.
The decision also failed to cite a Supreme Court decision in June helpful to the plaintiffs, a group of journalists, scholars, lawyers and nonprofit organizations. The decision, Hamdan v. Rumsfeld, struck down the administration?s plans to try prisoners at Guant?namo Bay, Cuba, as war criminals. It was widely interpreted as a rebuke to the administration?s expansive conception of executive power.
?After Hamdan,? Professor Sunstein said, ?this program is not easy to defend.?
Professor Balkin said there was a rushed quality to Judge Taylor?s decision, but he added that her reason for moving fast may have been the laudable one of assuring that more than one appeals court would have the opportunity to pass on the legality of the program.
Martin S. Lederman, a former Justice Department official who believes the program is illegal, said he found the contrast between Justice John Paul Stevens?s approach in Hamdan and Judge Taylor?s in the wiretapping case telling.
?Justice Stevens was criticized for not including sound bites and sweeping constitutional interpretation,? Mr. Lederman said. Judge Taylor?s decision, by contrast, he said, ?was meant for headlines.?
Experts Fault Reasoning in Surveillance Decision
By Adam Liptak of The New York Times
Published: August 19, 2006
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 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.?
The main problems, scholars sympathetic to the decision?s bottom line said, is that the judge, Anna Diggs Taylor, relied on novel and questionable constitutional arguments when more straightforward statutory ones were available.
She ruled, for instance, that the program, which eavesdrops without court permission on international communications of people in the United States, violated the First Amendment because it might have chilled the speech of people who feared they might have been monitored.
That ruling is ?rather innovative? and ?not a particularly good argument,? Jack Balkin, a law professor at Yale who believes the program is illegal, wrote on his Web log.
Judge Taylor also ruled that the program violated the Fourth Amendment?s ban on unreasonable searches and seizures. But scholars said she failed to take account of the so-called ?special needs? exception to the amendment?s requirement that the government obtain a warrant before engaging in some surveillance unrelated to routine law enforcement. ?It?s just a few pages of general ruminations about the Fourth Amendment, much of it incomplete and some of it simply incorrect,? Orin S. Kerr, a law professor at George Washington University who believes the administration?s legal justifications for the program are weak, said of Judge Taylor?s Fourth Amendment analysis on a Web log called the Volokh Conspiracy.
Judge Taylor gave less attention to the more modest statutory argument that has been widely advanced by critics of the program. They say that it violates a 1978 law requiring warrants from a secret court and that neither a 2001 Congressional authorization to use military force against Al Qaeda nor the president?s constitutional authority allowed the administration to ignore the law. A recent Supreme Court decision strengthened that argument. Judge Taylor did not cite it.
Some scholars speculated that Judge Taylor, of the Federal District Court in Detroit, may have rushed her decision lest the case be consolidated with several others now pending in federal court in San Francisco or moved to a specialized court in Washington as contemplated by pending legislation. Judge Taylor heard the last set of arguments in the case a little more than a month ago.
The decision has been appealed, and legal scholars said Judge Taylor had done the American Civil Liberties Union, which represents the plaintiffs, few favors beyond handing it a victory. On the other hand, they added, the appeals court is bound to examine the legal arguments in the case afresh in any event.
Indeed, Cass R. Sunstein, a law professor at the University of Chicago, predicted that the plaintiffs would win the case on appeal, but not for the reasons Judge Taylor gave.
?The chances that the Bush program will be upheld are not none, but slim,? Professor Sunstein said. ?The chances that this judge?s analysis will be adopted are also slim.?
Eugene Volokh, a law professor at the University of California, Los Angeles, who presides over the Volokh Conspiracy Web log and says he is skeptical of the legality of the wiretapping program, called the decision ?not just ill-reasoned, but rhetorically ill-conceived.?
?If I were the A.C.L.U.,? Professor Volokh said, ?I would rather have a decision that came across as more-in-sorrow-than-in-anger and that was as deliberate, meticulous, thoughtful and studiously impartial as possible.?
Anthony Romero, the executive director of the A.C.L.U., said Judge Taylor?s decision represented vindication of established limits on the scope of executive authority.
?Ultimately,? Mr. Romero said, ?any doubts about the decision will be taken up on appeal by sitting federal judges rather than pundits or commentators.?
Judge Taylor, a longtime trial court judge who was appointed by President Jimmy Carter, enjoys a good reputation among lawyers who have appeared before her, according to anonymous comments collected by the Almanac of the Federal Judiciary.
?Lawyers interviewed rated Taylor high in legal ability,? the almanac concluded. The eight quoted comments ranged from enthusiastic (?She is smart as hell?) to lukewarm (?She is competent?).
Supporters of the program, disclosed by The New York Times in December, suggested that Judge Taylor?s opinion was as good a way to lose as any.
?It?s hard to exaggerate how bad it is,? said John R. Schmidt, a Justice Department official in the Clinton administration who says the program is legal. He pointed to Judge Taylor?s failure to cite what he called several pertinent decisions, including one from the Foreign Intelligence Surveillance Court of Review in 2002 that said it took for granted that Congress ?could not encroach on the president?s constitutional power? to conduct warrantless surveillance to obtain foreign intelligence.
The decision also failed to cite a Supreme Court decision in June helpful to the plaintiffs, a group of journalists, scholars, lawyers and nonprofit organizations. The decision, Hamdan v. Rumsfeld, struck down the administration?s plans to try prisoners at Guant?namo Bay, Cuba, as war criminals. It was widely interpreted as a rebuke to the administration?s expansive conception of executive power.
?After Hamdan,? Professor Sunstein said, ?this program is not easy to defend.?
Professor Balkin said there was a rushed quality to Judge Taylor?s decision, but he added that her reason for moving fast may have been the laudable one of assuring that more than one appeals court would have the opportunity to pass on the legality of the program.
Martin S. Lederman, a former Justice Department official who believes the program is illegal, said he found the contrast between Justice John Paul Stevens?s approach in Hamdan and Judge Taylor?s in the wiretapping case telling.
?Justice Stevens was criticized for not including sound bites and sweeping constitutional interpretation,? Mr. Lederman said. Judge Taylor?s decision, by contrast, he said, ?was meant for headlines.?
on 4th Amendment---from Eugene Volokh's blog
on 4th Amendment---from Eugene Volokh's blog
The NSA Eavesdropping Opinion and the Fourth Amendment: The district court, in a three-page analysis ? mostly consisting of block quotes from opinions in the Supreme Court's United States v. United States District Court (Keith) case ? concludes that the program is "obviously in violation of the Fourth Amendment." The opinion, however, doesn't even mention the arguments that
the Court has expressly held that the government has broad authority to engage in warrantless, probable-cause-less searches of goods and people crossing the border, and that the same authority should apply to information crossing the border (as some lower courts have indeed held as to information crossing the border on computer disks), and
Keith itself expressly left open the question whether the Fourth Amendment rules applicable to purely domestic intelligence surveillance even applies to surveillance aimed at ferreting out the activities of "foreign power" (a term that could encompass foreign nongovernmental organizations as well as foreign governments), as oppose to activities of domestic organizations (the matter that the Keith Court stressed was at issue in that case).
For more on these two arguments, see Orin Kerr's post from last December, which I also excerpt below (but click on the link to the original post to get links to earlier cases):
On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.
The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).
As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument ? and with dicta that seems to say that mode of transportation is not relevant.]
The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:
Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.
The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:
Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.
The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.
on 4th Amendment---from Eugene Volokh's blog
The NSA Eavesdropping Opinion and the Fourth Amendment: The district court, in a three-page analysis ? mostly consisting of block quotes from opinions in the Supreme Court's United States v. United States District Court (Keith) case ? concludes that the program is "obviously in violation of the Fourth Amendment." The opinion, however, doesn't even mention the arguments that
the Court has expressly held that the government has broad authority to engage in warrantless, probable-cause-less searches of goods and people crossing the border, and that the same authority should apply to information crossing the border (as some lower courts have indeed held as to information crossing the border on computer disks), and
Keith itself expressly left open the question whether the Fourth Amendment rules applicable to purely domestic intelligence surveillance even applies to surveillance aimed at ferreting out the activities of "foreign power
For more on these two arguments, see Orin Kerr's post from last December, which I also excerpt below (but click on the link to the original post to get links to earlier cases):
On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.
The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).
As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument ? and with dicta that seems to say that mode of transportation is not relevant.]
The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:
Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.
The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:
Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.
The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.
Eugene Volokh's blog -NYT ???--why omit Air America--daily kos and move on org?
Can find you just as many from opposite view--believe correct thing to do is lets courts decide.
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B what was Matts basic question that I failed to answer??
--and on bill of rights--whose interpretation--same folks folks that tell you child porn is freedom of press???
and while on answering questions have seen any libeerals jump on mine yet.
I'll ask again---
"I can't for the life of me understand the liberal element--I can put up site link where I can pull up any info on anyone for a few dollars--and they get by because of liberals freedom of press/speach ect ect ----yet they carp like banshees if you think by some remote chance this admin might listen to conversation in effort to save lives"
---and what say you?
Can find you just as many from opposite view--believe correct thing to do is lets courts decide.
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B what was Matts basic question that I failed to answer??
--and on bill of rights--whose interpretation--same folks folks that tell you child porn is freedom of press???
and while on answering questions have seen any libeerals jump on mine yet.
I'll ask again---
"I can't for the life of me understand the liberal element--I can put up site link where I can pull up any info on anyone for a few dollars--and they get by because of liberals freedom of press/speach ect ect ----yet they carp like banshees if you think by some remote chance this admin might listen to conversation in effort to save lives"
---and what say you?
The article pretty much supported your side of the argument, giving examples and cases where this would NOT be a violation of the fourth amendment, yet you still chose to attack the source?
Oh, and as far as the question you didn't answer, it involved why perjury regarding a strictly personal issue (Clinton's infidelity) is so bad to you, but a violation of the constitution seemingly is not to you. However, you somewhat addressed that in your last post with your "whose interpretation" comment. To me, it's pretty cut and dry, but I can see how things can be interpreted different ways.
What good is any info if your government does not pay attention to it. Remember 9/11. That info was all gained with out any new laws or the braking or stretching of old laws. But folks were on vacation and doing other things and didn't tie it together. But the info to prevent 9/11 was there 3 months before it happened.
I said that he *lied* about a blow job in my post, not just that he got a blow job. That IS how he perjured himself, right?
As far as three days and a day late, I don't understand. They don't have to *wait* three days, they have three days AFTER the fact to get the warrant.
Ummmm, as usual, you obviously didn't read the article and stopped when you got to the author.
Just to fill ya in briefly, that article was saying that the decision by that judge was poorly written and not strong.
Hadn't read this post when I made mine, but EXACTLY! He doesn't read any article on here that is by someone he deems 'liberal.' This time it made him look pretty foolish.
