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.
