Did you know that Congress could suspend the Constitution for a week at a time for as long as it likes?
Neither did I.
The news is that Congress has passed a bill that the president likes, make that 'loves,' and will thus sign forthwith. The gist of the new bill, per the New York Times's Eric Lichtblau, is here:
The deal, expanding the government’s powers in some key respects, would allow
intelligence officials to use broad warrants to eavesdrop on foreign targets and conduct
emergency wiretaps without court orders on American targets for a week if it is
determined important national security information would be lost otherwise. If approved,
as appears likely, it would be the most significant revision of surveillance law in 30 years.
The full article is below.
Last week, the Supreme Court, in Boumediene v. George W. Bush, President of the U.S., held, in a 5:4 decision written by Associate Justice Anthony M. Kennedy, again the swing-vote, stated that the Constitution was intended to be our rock and our anchor in the most trying of times, such as emergencies, like the attack on Pearl Harbor and 9-11.
Yet today we see Congress suspending the Fourth Amendment if the FBI or another governmental agency finds itself all in a lather because the latest bad guy they're tracking, and want to wiretap or otherwise bug, can be said to be trying to destroy the world, or the U.S., or even, perish forbid, San Francisco.
I don't get it. The police are required by law to observe the Fourth Amendment (Search and Seizure limitations, such as no general search and the requirement to obtain a warrant particularly describing the person, place, and thing sought to be searched and/or seized) even when chasing mass murderers. We don't have a serial killer exception to the Fourth Amendment.
So where does Congress get off purporting to suspend the Constitution's warrant requirement for a week at a time just because some cop (they're all cops) says "This is an emergency." When my garage door opener fails to function correctly, that's an emergency. Some bad guy might sneak into the building and break into cars or shake doorknobs. The problem is that there is no accepted definition of an emergency.
When may the police listen in on your conversations? Whenever they feel like it. "Oh, we thought it was an emergency..."
Yeah, right.
Before I declare the new law to be unconstitutional on its face, I have to recognize this:
The fact of the matter is that we've had an emergency exception to the Fourth Amendment for decades. The case in San Francisco had it that two police detectives were listening outside a door, a door that could be yours. They were listening for sounds of occupants that could be associated with packaging or using narcotics. What the cops heard was a warbling sort of sound. So they kicked in the door without warning or warrant. The resulting seizure of drugs was upheld based on the we-make-this-stuff-up-as-we-go-along doctrine called "exigent circumstances," which is legalese for "emergency." The cops testified that the warbling sound appeared to them as though made by a human in distress.
Yes, it turned out to be pigeons, but the testimony was enough to save the search and obtain a conviction, which was upheld by the California Supreme Court.
I no longer remember the name of the case, but if it turns out to be Roberts I wouldn't be surprised. The cops, or one of them, met a bad end. You'd never want to trust anything he said. I knew him, and prosecuted several of his cases. His true colors came out long afterwards. Young DAs tend to believe their cops.
My guess is that the lower courts, and maybe the Supreme Court, will uphold the new statute on grounds that Congress is only doing what the courts have done all along, that is, recognize that exigent circumstances permit security forces to drive tanks through the Fourth Amendment.
You read it first here.
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Deal Reached in Congress to Rewrite Rules on Wiretapping
Deal Reached in Congress to Rewrite Rules on Wiretapping
WASHINGTON — After months of wrangling, Democratic and Republican leaders in Congress struck a deal on Thursday to overhaul the rules on the government’s wiretapping powers and provide what amounts to legal immunity to the phone companies that took part in President Bush’s warrantless eavesdropping program after the Sept. 11 attacks.
The deal, expanding the government’s powers in some key respects, would allow intelligence officials to use broad warrants to eavesdrop on foreign targets and conduct emergency wiretaps without court orders on American targets for a week if it is determined important national security information would be lost otherwise. If approved, as appears likely, it would be the most significant revision of surveillance law in 30 years.
The agreement would settle one of the thorniest issues in dispute by providing immunity to the phone companies in the Sept. 11 program as long as a federal district court determines that they received legitimate requests from the government directing their participation in the warrantless wiretapping operation.
With some AT&T and other telecommunications companies now facing some 40 lawsuits over their reported participation in the wiretapping program, Republican leaders described this narrow court review on the immunity question as a mere “formality.”
“The lawsuits will be dismissed,” Representative Roy Blunt of Missouri, the No. 2 Republican in the House, predicted with confidence.
The proposal — particularly the immunity provision — represents a major victory for the White House after months of dispute. “I think the White House got a better deal than they even they had hoped to get,” said Senator Christopher Bond, the Missouri Republican who led the negotiations.
The White House immediately endorsed the proposal, which is likely to be voted on in the House on Friday and in the Senate next week.
While passage seems almost certain in Congress, the plan will nonetheless face opposition from lawmakers on both political wings, with some conservatives asserting that it includes too many checks on government surveillance powers and liberals asserting that it gives legal sanction to a wiretapping program that they contend was illegal in the first place.
Senator Russ Feingold, the Wisconsin Democrat who pushed unsuccessfully for more civil liberties safeguards in the plan, called the deal “a capitulation” by his fellow Democrats.
But Democratic leaders, who squared off against the White House for more than five months over the issue and allowed a temporary surveillance measure to expire in February, called the plan a hard-fought bargain that included needed checks on governmental abuse.
“It is the result of compromise, and like any compromise is not perfect, but I believe it strikes a sound balance,” said Representative Steny Hoyer of Maryland, the House Democratic leader who helped draft the plan.
Perhaps the most important concession that Democratic leaders claimed in the proposal was a reaffirmation that the intelligence protocols are the “exclusive” means for the executive branch to conduct wiretapping operations in terrorism and espionage cases. House Speaker Nancy Pelosi had insisted on that element, and Democratic staff members asserted that the language would prevent Mr. Bush, or any future president, from circumventing the law. The proposal asserts that “that the law is the exclusive authority and not the whim of the president of the United States,” Ms. Pelosi said.
In the wiretapping program approved by Mr. Bush after the Sept. 11 attacks, the White House asserted that the president had the constitutional authority to act outside the courts in allowing the National Security Agency to target the international communications of Americans with suspected terrorist ties, and that Congress had implicitly authorized that power when it voted to use military force against Al Qaeda.
HaHa, Look it up in the library of congress. Our Constitution has been suspended since 1933, thanks to the banks call the American people hoarders, thus bringing on the trading with the enemy act. All the government is doing is giving the Constitution Lip Service.
Posted by: Kent Mabe | May 04, 2009 at 09:25 AM