Mike the Usurper wrote:

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.

There isn't really any ambiguity in there, and the places that have been fuzzy (Miranda, searching of vehicles on the way to impound etc.) have largely been ruled on by the courts. Where is there zero ambiguity? Houses and businesses. If there is to be a search, it is done with a warrant, period.

It acually is ambiguous. It says no warrants shall issue without probable cause, and it says no unreasonable searches, but it doesn't specifically say that every search requires a warrant. Thats what all of this stuff hinges on.

Decius wrote:

Mike the Usurper wrote:

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.

There isn't really any ambiguity in there, and the places that have been fuzzy (Miranda, searching of vehicles on the way to impound etc.) have largely been ruled on by the courts. Where is there zero ambiguity? Houses and businesses. If there is to be a search, it is done with a warrant, period.

It acually is ambiguous. It says no warrants shall issue without probable cause, and it says no unreasonable searches, but it doesn't specifically say that every search requires a warrant. Thats what all of this stuff hinges on.

There are exceptions, but those have always been ruled by the courts under the "probable cause" clause of this. A major topic twenty years ago was a "good faith" exception. That was rejected. So what might constitute a "reasonable search" without a warrant? The usual "imminent threat" things that can't be handled via observation until a warrant is obtained. If there isn't a bomb in the house that can reasonably be expected to go off before a warrant is obtained, then they can't go in.

There are secondary areas where "reasonable searches" are allowed without warrants, such as the bit at airports, or events that do things like weapons checks.

The first clause is considered to be the ground rules by which the second clause operates. If you can't get a warrant, it's an unreasonable search. This is also what the FISA court is about, and why what they're doing already is unconstitutional. FISA was set up to get warrants without public disclosure of the particulars, with the ability to do so AFTER THE FACT. Under FISA, there is NO WAY to claim "immediacy" because warrants are obtainable after the fact.

If you can't get a warrant, it's an unreasonable search. Period.

Mike the Usurper wrote:
There are exceptions, but those have always been ruled by the courts under the "probable cause" clause of this. A major topic twenty years ago was a "good faith" exception. That was rejected. So what might constitute a "reasonable search" without a warrant?

If you can't get a warrant, it's an unreasonable search. Period.

Not in the case of a foreign intelligence matter.

In the time immediately preceding FISA, a number of courts squarely addressed the issue of "warrantless wiretaps". In both United States v. Brown, 484 F.2d 418 (5th Cir. 1973), and United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), the courts upheld warrantless wiretaps. In Brown, a US citizen's conversation was captured by a wiretap authorized by the Attorney General for foreign intelligence purposes. In Butenko, the court held a wiretap valid if the primary purpose was for gathering foreign intelligence information.

A plurality opinion in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), held that a warrant was required for the domestic surveillance of a domestic organization. In this case, the court found that the domestic organization was not a "foreign power or their agent", and "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."

Decius wrote:

Mike the Usurper wrote:
There are exceptions, but those have always been ruled by the courts under the "probable cause" clause of this. A major topic twenty years ago was a "good faith" exception. That was rejected. So what might constitute a "reasonable search" without a warrant?

If you can't get a warrant, it's an unreasonable search. Period.

Not in the case of a foreign intelligence matter.

In the time immediately preceding FISA, a number of courts squarely addressed the issue of "warrantless wiretaps". In both United States v. Brown, 484 F.2d 418 (5th Cir. 1973), and United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), the courts upheld warrantless wiretaps. In Brown, a US citizen's conversation was captured by a wiretap authorized by the Attorney General for foreign intelligence purposes. In Butenko, the court held a wiretap valid if the primary purpose was for gathering foreign intelligence information.

A plurality opinion in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), held that a warrant was required for the domestic surveillance of a domestic organization. In this case, the court found that the domestic organization was not a "foreign power or their agent", and "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."

Tom? That's wiretaps, not physical searches. We're talking about apples and oranges. Physical searches require a warrant, period.

Mike the Usurper wrote:
Tom? That's wiretaps, not physical searches. We're talking about apples and oranges. Physical searches require a warrant, period.

This is an apples to apples comparison. The founders did not imagine wiretaps when they wrote the Constitution. The 4th amendment that prevents warrantless wiretaps is the same 4th amendment that prevents warrantless searches. If the 4th amendment does not apply to a particular set of circumstances, it doesn't apply, regardless of the method of search. Whereas the courts have decided that the 4th amendment does not prevent warrantless wiretaps in particular circumstances, the courts allow warrantless searches in the same circumstances.

Note:

First, 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.

JAMIE S. GORELICK - DEPUTY ATTORNEY GENERAL, BEFORE THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE OF THE U.S. HOUSE OF REPRESENTATIVES

Decius wrote:

Mike the Usurper wrote:
Tom? That's wiretaps, not physical searches. We're talking about apples and oranges. Physical searches require a warrant, period.

This is an apples to apples comparison. The founders did not imagine wiretaps when they wrote the Constitution. The 4th amendment that prevents warrantless wiretaps is the same 4th amendment that prevents warrantless searches. If the 4th amendment does not apply to a particular set of circumstances, it doesn't apply, regardless of the method of search. Whereas the courts have decided that the 4th amendment does not prevent warrantless wiretaps in particular circumstances, the courts allow warrantless searches in the same circumstances.

Note:

First, 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.

JAMIE S. GORELICK - DEPUTY ATTORNEY GENERAL, BEFORE THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE OF THE U.S. HOUSE OF REPRESENTATIVES

And that's the argument they're making. That's not anything any court has signed off on. The courts do not view wiretaps and searches the same. Wiretaps can be done off premises but are considered an invasion because they are in an area that is reasonably considered private. That is not that case with physical searches.

Your quote from Gorelick is the White House memo that flies directly in the face of over 200 years of US history.

Mike the Usurper wrote:
Your quote from Gorelick is the White House memo that flies directly in the face of over 200 years of US history.

Mike, you are arguing with me by making statements but you aren't offering any information to back up your position, so objectively I have no reason to believe you. In the process of trying to respond I did encounter the ACLU's document submitted to the hearing Gorelick testified at. It does reflect your underestanding of the issue. There seems to be room to disagree about this. The matter hasn't really been litigated in detail.

In general I'm inclined to sympathize with the ACLU's position. However, if you accept the basis for the arguement that electronic surveillance can occur without a warrant, which is that the 4th amendment is abiguous, I think that analysis applies regardless of the specifics. The idea that we can apply that analysis in one context and not apply it in another seems, to me, arbitrary.

Of course, I don't accept the arguement that electronic surveillance can occur without a warrant. I think that the degree to which we have a lower standard for electronic privacy is simply because its convenient and not because it really make sense. However, my crazy ideas about the law are neither here nor there...

Decius wrote:

Mike the Usurper wrote:

Your quote from Gorelick is the White House memo that flies directly in the face of over 200 years of US history.

Mike, you are arguing with me by making statements but you aren't offering any information to back up your position, so objectively I have no reason to believe you. In the process of trying to respond I did encounter the ACLU's document submitted to the hearing Gorelick testified at. It does reflect your underestanding of the issue. There seems to be room to disagree about this. The matter hasn't really been litigated in detail.

In general I'm inclined to sympathize with the ACLU's position. However, if you accept the basis for the arguement that electronic surveillance can occur without a warrant, which is that the 4th amendment is abiguous, I think that analysis applies regardless of the specifics. The idea that we can apply that analysis in one context and not apply it in another seems, to me, arbitrary.

Of course, I don't accept the arguement that electronic surveillance can occur without a warrant. I think that the degree to which we have a lower standard for electronic privacy is simply because its convenient and not because it really make sense. However, my crazy ideas about the law are neither here nor there...

Tom, for more on this a simple resource for this can be found at http://caselaw.lp.findlaw.com/data/constitution/amendment04/ The courts do in fact hold electronic eavesdropping to a different standard, and they also detail exceptions to the basic rules (minors, drug testing, etc.) for conventional searches.

The problem with the Gorelick position is, the FISA statute makes clear the legislative deliniation for what is and is not a legitimate wiretap even in the case of National Security. It creates a foundation for what may be considered acceptable. To endorse Gorelick means overturning the constitutionality of FISA. That is not something I expect to see happen for a number of reasons, the first of which is, overturning FISA means an elimination of part of the checks and balances.

Each branch of government is designed to have some ability of oversight to prevent any of the others from exercising undue power. FISA is the legislature saying "this is acceptable so long as you agree to have oversight from this other branch." This operates on a similar idea to the War Powers Act (which is on much shakier ground) granting the Executive limited ability to use military force without a formal declaration of war from the congress provided that the executive keep the legislature informed about the specifics. War Powers is a much thornier issue than FISA, but both have at core, the idea of granting limited ability to act provided there is oversight of the action.

I think the administration is in trouble, not just on the idea of search and seizure, but also on the wiretaps themselves. Their contention is that once Congress gave the green light in 2001, anything goes. For even the current wiretaps to be allowed, FISA has to be overturned. FISA and those wiretaps are mutually exclusive.