The Fourth Amendment & Impeachment

I'm down. Unlike Nixon, he isn't a common crook, but it does seem as if he's managed to become an uncommon one. Also, like Nixon, he seems to be the only man capable of doing the job we need him to do in foreign policy.

Dammit.

1. Are there any unbiased news forums out there. oxymoron: Honest journalism

2. Did people forget we are at war? anybody remember FDR, open the mail and whip a few thousand in interment camps. I don't hear anybody calling him a retro criminal.

3. You can't believe anything any more.

Well, I guess if USA Today said it, it must be true.

Look, I think he's got a point here. Just look at the factoids.

RobU that's twice in a week. I very cleary state:

"If what the USA today article says is true..."

I'm not going to carte blanche deny anything in the USA Today simply because it's the USA Today, especially since it seems to be the first serious article they've done in ages. That being said, I'm still waiting for all the evidence to be presented. Right now there's a ton of smoke, but I'm not so sure where the fire is at.

Even then, it won't be as simple as you're implying. The constitutionality of these wiretaps may exist if they fall within the Authorization for the Use of Military Force created by Congress after 9/11. That reads:

(a) IN GENERAL.-- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In order for they to be constitutional, then at minimum, they need to be a "fundamental incident of waging war." That was the phrase used by a ruling of Breyer, O’Connor, Kennedy and Rehnquist when AUMF was brought before SCOTUS a few years ago. Note, too, that that does not require that AUMF use the explicit language of wiretapping either - it must be that these wiretaps are "fundamental incident of waging war," and since al Qaeda does use decentralized communications via Internet and it is believed cells are domestic already, then an argument could be made that that is the case.

When this broke a year ago, or however long ago, I spent forever studying the arguments by constitutional scholars for and against. While it's not a slam dunk for the Bush Administration, it's also not as obvious a case of impropriety as your post implies. My sense - and I've forgotten most of what I learned doing that - was that Constitutional arguments were reasonable for both sides.

The economic arguments, on the other hand, are stronger. The game the President is playing is a non-cooperative game under uncertainty. As such, he has to weigh the expected costs of future attacks against the present costs of stopping those attacks. One such method is wiretapping. It is an appropriate method because, (a) the enemy uses cell phones and Internet communications domestically, and (b) the enemy at any time has incomplete information about their assignment. They wait on future information regularly, and without it, they are less effective. So one has to calculate the presently discounted (g) expected damage from a future attack, which is a function of the damage itself (D) and the probability that it occurs at all (p), against the present costs (C) of the method itself and the efficacy of the method (g). That would mean one should wiretap if and only if:

gDp>fC

where g, p, and f are all bounded from 0 and 1, and D and C are both non-zero, non-negative. So, if the ratio of gDp to fC is greater than 1, then you use wiretapping.

(gDp/fC)>1

Otherwise, you don't. If it's illegal, then you'd include that in the costs (C) term. For instance, what's the ramifications of doing something illegal? Impeachment, etc. Interestingly, Bush should take into account the social costs and the social damages, not just the private damages and the private costs. SO, arguably, if hundreds to thousands are killed in a future attack, and the only ramifications of wiretapping is impeachment, then if we weight each person by the same amount (say $2 million to make it simple), Bush should still wiretap. But you can already see why someone might not do the hard thing, since arguably Presidents often ignore the social costs/damages, and focus instead on just the private costs and private damages.

But, all that to say, I'm not sure cost-benefit analysis like this is being used. It could go either way. In just this simple model, which I ripped off from No-limit holdem poker, everything hinges on the values of C, D, p, g, and f. The probability of a future attack needs to be very high, the discount rate cannot be too high, and the relative damages to costs has to also be high. Also implicit in this is that there is not a more efficient mechanism to stop the attack except for wiretapping. It gets somewhat more complicated when one tries to choose the least costly method among a very large number of options. But the basic idea remains the same.

At this point, I think the constitutional arguments are stronger than critics realize. I think the strategic arguments are also stronger than people realize. As such, I hope it goes before the SCOTUS so that it could get clarified, as the old FISA law needs updating to accomodate more sophisticated forms of surveillance which did not exist when FISA was passed. So, at this point, I cautiously support these wiretaps.

I am very biased here, (I think bushco is a murdering criminal on a scale saddam never dreamed of) but the language in the AUMF was very specific. It would be wise for the pro-war crowd to review it. Specifically I would check out the preamble "within the Constitution" section as well as Section 8(a)(1) of the war powers act. Impeach bushco is the conclusion I come to.
best regards

Dear Biased Glen,

I am not pleased with our current leadership either, but Mr. Hussein killed upwards of ONE MILLION of his OWN PEOPLE. Even if all the people that have died in Iraq (on both sides) are the result of Bush being a "murdering criminal" -- an assessment I disagree with -- he has quite a way to go.

It's math, homey.

I'm no Bush-lover, and I think the White House has done a horrible job managing the public's understanding of the "war on terror" (whatever the heck they want that to mean), but I think this particular thing is getting blown out of proportion. First of all, all three phone companies have denied giving the NSA the information that the USA Today article claims. All along, the Bush Administration and congressional officials have refused to comment on the story itself, only saying that the NSA is working within the law and protecting Americans' privacy. Secondly, phone records themselves are not protected under the 4th amendment. The Electronic Communications Privacy Act of 1986 explicitly allows phone companies to give phone records to the government without a court order. There is a HUGE difference between the monthly printout I get from Verizon detailing all the phone calls I made and received, and actually monitoring each one of those calls.

All that said, I certainly don't like the idea of the NSA having my phone records in some massive database, but I also think that as things now stand, it really doesn't look like our Fourth Amendment rights have been violated in this particular situation.

Hey Scott,

I find the latter half of your comment fascinating, but for brevities sake (I do have work to do today) I want to address the first part of your statements.

Along with the 4th Amendment in general, there are three relevant laws/documents/ruling in play here. The first is FISA, the second Joint Resolution 23 (the Authorization to Use Force), and the third a Supreme Court Ruling on Joint Resolution 23 relating to enemy combatants (Handi v. Rinzsfeld).

It's from Handi v. Rinzsfeld that the statement "fundamental incident of waging war" is taken, and it's use has nothing to do with communications. The context of the statement is thus: "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war". It says nothing, before or after, about communication, or about the clause "fundamental incident of waging war" as some carte blanch criteria to be used by the President.

I agree FISA needs to be updated, but until that point, it is still the Law of the Land, and our President needs to abide by it. FISA states, even when authorized by the President, that he's not allowed to electronically snoop on any group of people significantly comprised of Americans.

The Administration knew this, which is why they made such a big deal of stating that the wiretapping was "not Domestic" (our Country being a land filled is a majority of Americans, and therefor protected by the 4th Amendment).

Ok, there's more research I need to do and I need to get back to work, the quick summary:

1. FISA forbids electronic surveillance of any group of people significantly comprised of Americans without a court order.
2. FISA allows for the President to conduct surveillence for 1 year for gathering "Foreign Intelligence" from domestic sources ("domestic" being implied).

The NSA has been wiretapping for 6 years without a warrant.

3. AUMF (Joint Resolution 23) only authorized this:
"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

how do the people of the United States constitute a nation, organization, or person that planned, authorized, or committed the attacks on Sept 11th, as determined by our President?

4. Handi v. Rinzsfeld deals with the scope of AUMF but only as it relates to the status of enemy combatants. Now once this issue makes it to the Supreme Court, it may determine that Handi v Rinzsfeld set a precedent that allows for domestic wiretapping carte blanche.

But you and I both know, with the now "strict constitutionalist" Supreme Court we have, they're going to shoot that to bits for going straightaway against the 4th Amendment.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY
AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

And from the War Powers Act as ammended 1973 this relavent section:
SEC. 8. (a)
Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--

(1)
from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution;
FISA is the law of the land before and since the joint resolution for the AUMF.
I am not a law scholar so tell me what I am missing here.
(I bracket info. I think is not relavent to the comment, however interesting or on target)
both of those are extracts from the findlaw database.

Josiah

I also have to work today (parents will arrive very soon, and bedroom is still a mess), so let me focus on a few different things, rather than the entire article.

My understanding of Handi v. Rinzsfeld is that Yaser Hamdi sued the US government claiming that his detention violated a previous law which said, “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Did such an Act of Congress exist? The Supreme Court ruled that it did, and pointed to AUMF. The ruling read:

"In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here."

Thus, the same logic applies to warrantless wiretaps, since AUMF also does not mention telecommunications at all. If warrantless wiretaps are "fundamental incident to waging war," then AUMF, through Hamdi v. Rinzfeld, provides constitutional support. AUMF, after all, does not mention detention by name either, but by the justices logic, it is implicit since detention is an incident of war.

As for FISA. The strongest argument against these wiretaps is FISA, no doubt. Yet, even this isn't obvious. For one, the 1978 law Congress enacted mainly in response to the openness left by the "Keith case", or United States vs. the United States District Court. The original Keith case, for instance, was ambiguous to the constitutionality of wiretapping, and thus as to whether the Fourth Ammendment did forbid it in all situations. In footnote 23 of Katz v. the United States Justice White wrote:

“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.”

FISA prohibits “electronic surveillance” of “a United States person” except in instances authorized by statutory law. FISA, therefore, may not cover the collection of foreign intelligence wiretappings, particularly in light of AUMF, and also in light of the openness of constitutional opinions on the Fourth Ammendment regarding this very point. In the Keith case, Justice Powell concluded that there was no national security exception to the Fourth Amendment for evidence collection involving *domestic organizations*. But he explicitly was agnostic as to whether such an exception existed for foreign intelligence collection (see the quote above).

Also, Bush is not the first to challenge FISA on this point. Reagan and Clinton both did. See here for instance. Clinton’s Deputy Attorney General, Jamie Gorelick, testified before the Senate Intelligence Committee on July 14, 1994 and stated :

“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General. . . . It is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the President in carrying out his foreign intelligence responsibilities.”

Also, Reagan signed Executive Order 12333 in 1981 that provided for such warrantless searches if it was directed against “a foreign power or an agent of a foreign power.”

So, like I was saying, FISA does not cover instances where warrantless wiretaps are allowed by statutory law. AUMF has been interpreted broadly so as to cover actions which are of fundamental incident to waging war. It is not relevant that AUMF not mention telecommunications, since AUMF does not mention detention itself. Rather, the question is whether such wiretaps are of fundamental incident to waging war. The latter part of my first post, that explains a strategic explanation for why this might be the correct choice, is an attempt to say something to that effect.

FISA also may or may not be relevant to the types of wiretapping being used by the NSA. Since we know nothing about what NSA is doing, we cannot say FISA has been violated, even if you are correct. My point has been that wiretapping is an open constitutional question, because of the agnosticism of SCOTUS on the Fourth Ammendment on this very issue, and secondly, that AUMF can be interpreted as supporting it - insofar as such wiretaps are fundamental incident to waging war.

Back to cleaning.

Josiah

I sent you something I wrote on this for a friend a while back, and maybe it's better to do this privately, as these posts are long in a blog. But to your last point:

4. Handi v. Rinzsfeld deals with the scope of AUMF but only as it relates to the status of enemy combatants. Now once this issue makes it to the Supreme Court, it may determine that Handi v Rinzsfeld set a precedent that allows for domestic wiretapping carte blanche.

I just wanted to say something, in case this is not clear in the longer post I just wrote. Handi tells us that it AUMF does not have to state every single action the President takes. AUMF does not discuss detention, for example, but Handi tells us that it is implied. All "fundamental incidents to waging war" are implied, according to Handi. The question is then whether intercepting enemy communications during a time of war is such an incident. The Attorney General has argued that it is.

This may be casting pearls....whether bushco can legally develope incredibly detailed profiles on every breathing person on this continent or not matters very little really, it is not right. Never mind my expressed dislike, there is no justication anywhere for any reason to maintain the information. The government has never(regardless of political flavor) been able to keep its hands off. It has led to no good every single time.
Even our original founding documents were explicit about this.
Best regards

Dear math homey,
Is there a prediction(statistic work well here) for the number of people that will die from global warming and its effect on the biosphere? What about the folks who will die prematurely? What of the folks who die much earlier from lack of access to adequate prenatal healthcare? Mudering criminal seems to fill the empty space.
best regards

GlenH - it's a constitutional open question as to whether the Fourth ammendment covers instances of collecting information on foreign enemies. That's not my opinion; that's the consensus of constitutional scholars. As for whether there is justification for this, see my first post, because I provide strategic reasons for it towards the end. I may be wrong, but it's an attempt to provide a condition under which wiretapping might be the correct choice.

As for your second question. I don't know anything about this literature. Richard Posner has a book entitled Catastrophe: Risk and Response, though, that covers global warming and other natural disasters which are "low probability events" but which cause astronomically high damages when they do hit. If you're interested, that might be a good place to start. I'm not sure what your point of bringing this up to me is, though, and your last sentence is confusing ("murdering criminals fills the empty space"?). What is it you're asking me exactly?

I am sorry scott, but posner is a nut case. I am appauled that anyone would consider his" apply cost-analysis to disaster response" proposition way over the edge for me. This is the same judge that sees curtailing civil liberties as acceptable. The same judge that justifies toture. I will hold on to my christian ethics instead. I am sorry if I was not clear in my response to bill. My point was regardless of the constitutional question, is it right? I cannot help but ask(rhetorically), In your gut how does it feel? Mine is screaming at me this is wrong period.
My reference to mudering criminal was not plural, "Mudering criminal seems to fill the empty space." but singular ie.. bush fills the empty space.

GlenH - So you have read that book by Posner, you're saying? Or have you just read reviews?

If you have an ethical objection to cost-benefit analysis, then you can ignore that part of my post, since it's cost-benefit in nature as you probably noticed. I figured that since the question on the table was (a) whether wiretaps are legal and (b) whether wiretaps are strategically justified, then it'd be relevant to examine this from this kind of perspective. If an action raises the probability of a future attack, then it seems relevant to discuss it, no?

I thought your question to me about global warming was a sincere question about what literature by economists existed; I didn't realize you were baiting me. I recommended Posner only because he is the only one of my ilk who has done detailed analysis. Why exactly did you ask me about global warming, then?

As for your Christian ethics. Perhaps you can point out exactly what I wrote that was non-Christian? That I argued a leader can and should compare the costs from inaction to the costs of wiretapping and then choose the action with the lower cost? This was motivated by a Christian commitment to the state having the obligation to maximize the common good.

Your last sentence, again, does not make sense to me. I really don't know what that sentence means. Are you actually saying responding to something I've written? If so, what? I'm trying to give you the benefit of the doubt, and at this point, think you've yet to communicate your point to me in a way that I can understand. Your last post has various misspellings and grammatically incorrect sentences, making it hard to understand what you mean exactly.

You know, it's a shame, but it's pretty much "pick your issue with Bush" right now. Harriet Myers, Dubai Ports, and now this and illegal immigration haven't really done much to help the President's case with his own party. Very frustrating.

Scott,
Peace, time out, forgive me. In my original post to Math homey, I was responding to bill.
"Dear Biased Glen,

I am not pleased with our current leadership either, but Mr. Hussein killed upwards of ONE MILLION of his OWN PEOPLE. Even if all the people that have died in Iraq (on both sides) are the result of Bush being a "murdering criminal" -- an assessment I disagree with -- he has quite a way to go.

It's math, homey.
"
No!, I have not read his book. I will not read his book. I might use it for toilet paper or failing that I would use it for a target! But I would NOT read it.
Judge Posner is a psycopath. What human in thier right mind signs off on torture?! It makes us no better than our enemy. Nevermind the trade freedom for security issue.
Maybe I could suggest a .gov link with some credibility.
href="http://globalchange.gov/#Abrupt-Climate-Change"

Or here is another interesting link.
href="http://www.ncdc.noaa.gov/paleo/abrupt/"
href="http://dels.nas.edu/abr_clim/"
href="http://www.climatescience.gov/Library/abrupt2004.htm"
best regards

Q, I guess that was a feeble attempt at humor on my part. Sorry about that! :)

glenh - I thought I was "math homey" because of the c-b bit in my post. That clears it up, as I was all along responding to your post thinking it was to me.

I would, though, question your ability to judge Posner's argument without having read it. That can't be a good Christian attitude. Listening with an aim towards understanding is part and parcel to loving them. At minimum, that would require one to not judge an argument in a book you refuse to read!

While I agree with you in principal ( everyone deserves a second chance), I do not think Judge Posner has changed his stripes for this 1 book. If that is the case then I will beg his understanding and ask his forgiveness. Now, if He is still in favor of torture under ANY circumstances, any at all then I will stand by my original post, toilet paper or target?! Please disabuse me of the notion?! Mr.Posner having been a judge makes my concern and judgment that much more appropriate. I do not think the bill of rights were written to protect government, but to protect citizens from the same.
best regards

Point is - you cannot judge a person's argument if you won't even have the elementary charity to listen to them make it. What you're doing is justifying your own ignorance and close-mindedness. Besides, I thought we were talking about global warming, not torture. Because you disagree with him on torture, he cannot be right on any other subject? I'm no logician, but I think that's some kind of formal fallacy.

You cannot get around my point that you are not showing basic Christian charity in refusing to listen to an opponent's argument. This is the very basics of apologetics. The rest of it is windowdressing if you refuse to love the people enough to hear them. If you feel like you can't, then you owe it to everyone to not engage at all.

Scott,
Please humbly accept my heartfelt apolgy. Once again, your superior reasoning has illuminated the stage of christian ethics and thinking. If and when Posner( and I will include most folks that agree with him) publicly begs forgiveness and willingly recants I will happily let his publisher send me a copy. Otherwise I will continue to hold my christian views, and pray for deliverance from such vile and evil men.
best regards,
glen

"conservative christian is an oxymoron"