leejo

It isn't unconstitutional just because you say it is. Sensible, knowledgeable people who understand the law disagree with this assertion. Some people who know the law agree with you. We'll see, but I don't think you should toss that claim around as if it were fact. It's irresponsible.

Diceman

No disrespect, BigC, but this line of argument always irritates me. I wonder if this line of questioning ever came up during debates of the 4th amendment, and what the responses were.

In a similar vein, what would you suppose is the value of the 5th amendment - to have non-self-incrimination as a right. Again, the idea that this right protects only criminals, while on its face seems to be true, surely must have some necessary role to play in the well-being of a good and free society.

I don't know what the counter-arguments are - and yes, I'm well-aware that I should go look them up - but I just wanted to voice a deep unease I feel with that idea which, furthermore, seems to be widely embraced by the American population.

Personally, I think it comes down to trust in government. Some have more, others have less. But what vexes me is that the reason why most people in the West trust their governments is exactly because they are so constrained in the pwers that they wield. The police are limited by the legal system, but judges can't pass law (any debates about 'judge-made law aside for the time being). Judges usually only interpret what is handed down from the legislature - and so they are constrained by the very architecture of government. And so on and so forth.

But here's what trips me up: I believe that, if you give government the power to do something, it will use that power. And so a citizenry ought to be extremely delicate about exactly which powers are doled out to government - because, if a state of fear causes the population, via it's representative bodies to surrender all authority to the Great Leader (incidentally, I'm not implying that Bush is setting up his own fiefdom - this is all just speaking in prinicple), there is no guarantee that the Great Leader will not become the Great Despot.

In short, the very trust which a fearful citizenry places so deeply in government is what enables governments to abuse their power.

Lastly, I'm not saying that anyone here is a 'fearful citizen', that Bush is a despot or anything else like that. There is nothing that I've written above which is intended to offend or antagonize. I am only trying to write on what I see as patterns of human behaviour, and I believe that these patterns can be seen again and again through-out history.

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CingularDuality

That may be difficult to answer because you've never lived in a society where it's possible for the police to torture a confession out of you, and that that confession alone is enough to convict you of a crime. Instead, we live in a society where solid criminal cases are thrown out because the criminals weren't informed of their rights before answering police questions.

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aeroripper

Diceman ^^^

Agreed fully, it is such a defeatist and apathetic thing to say that you have nothing to fear if you havn't done anything wrong. It really drives me up a wall when people use this sole argument (with all respect BigC) as it goes against core ideals our society was built upon (to challenge and restrict government). The people are not powerless.

As for the NSA case, I wasn't specifically referring to that issue as being highly unconstitutional (although it is related). I was meaning to say it in a more general way with a better example of blatant unconstitutionality. For example, a government agency comes to arrest your neighbor in their home for talking negatively about the presidents policies to you. Then you responding with "there is nothing to fear if I have done nothing wrong".

TheBigC

The 4th Amendment addresses the search and seizure. Here it is the actual wording “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.”

After reading through some more of the amendments, it also states a couple of interesting things. “This only protects us resident aliens”. So, this being said they can now listen to any conversation being held by person not from America. Also in the Patriot Act (Public Law107-56), Section 215 the government is allowed to “Conduct intelligence investigations of both United States citizens and permanent residents without probable cause, or even reasonable grounds to believe that they are engaged in criminal activity or are agents of a foreign power”.

I sleep better at night knowing that are people that are protecting out safety and debating the legality of what is needed to make that happen. I am confident in organizations like the ACLU that will openly debate this topic for the people to see.

The NSA and the host of other 3 letter alphabet agencies are bound to the laws and their amendments. They cannot arbitrarily decide to do something with out prior going to a federal judge, who is our elected official that we have put into power, giving its blessing.

I think people are missing the mark on what this really is- the ability to simply scan and narrow in on illegal actions by persons that have the intent to harm us citizens. The government is not bringing a case against you personally; they are just trying to expeditiously find the bad guys before some other act of terrorism hit US soil.

I may not be a fan of the Patriot Act, but I believe that some form of law is required to address the growing threat of terrorism.

I am not a lawyer nor a civil libertarian, but I believe that those educated people are far more qualified to challenge standing law that is now in place.

As for the 5th amendment, well whether you like or not it is invalid in this case. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Sorry, but it is a time of war, plus it is irrelevant to the 4th amendment and the Patriot Act

In the interim, while the laws are debated, I again reaffirm that if you have done nothing wrong, you are in no fear of prosecution. And there is truly no disrespect taken, that is your right under the 1st Amendment to openly debate such a topic as this! It is important for people to express their concerns and than convey them to their elected officials who do make these laws.

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leejo

I think that it is critically important that we maintain strong 4th amendment protections. The key piece in my mind is the differentiation between national security intelligence-gathering and criminal prosecution. I personally do not subscribe to the "I've done nothing wrong so why worry" attitude insofar as I think the cops have any business getting up in my grill. If I'm pulled over and the police ask to search my car, I'll say no. If they make me stand around for an hour waiting on a k-9 unit to show up, I'll be looking at badge numbers and getting ready to make some phone calls when I'm back on my way, assuming Beatnik hasn't been rubbing my door handles.

However, I *do* support intelligence-gathering efforts, within limits, that help assure that another 9/11 isn't going to happen again. The sorts of activities we've discussed make good sense to me don't concern me that we're entering a police state. That's just where I am with it. I can easily imagine these programs being misused, but I can also imagine a solitary policeman planting a bag of heroin in my car on a routine stop, or hitting me with a taser for no good reason. That doesn't mean we need to live without police simply because they could abuse (and have, and will again!) their power. It's a risk/reward situation, and for me we need to live with the risk that the the people who run the NSA, despite Congressional oversight, despite legal oversight, and despite the fact that the people who run the department must receive Senate confirmation, might create a program with despotic intentions. Even if they do all of that, a vigorous judiciary can see us through.

RandomGuy

Are there limits in the laws they are using that would prevent a program with despotic intentions from targetting their overseers (congreesmen, senators or judges)?

leejo

Yes I think so. Basically our constitution is set up such that at the heart of things, any two branches can overrule the third. Were the NSA, an element of the executive branch, to threaten the other two branches, or even a single branch of the federal government, the other two ( Congress and/or the Judiciary) could shut it down and toss everyone involved either out of office or into jail for as long as they pleased.

Similarly, if Congress determined that the NSA needed to go but the President and Judiciary (Supereme Court) disagreed, then Congress would by reduced to "merely" an antagonistic relationship with the President, in which every law he or she sought became hung, and every budget line he or she sought was met with strong resistance.

Where the rubber meets the road, no single branch of our federal government can take action without one other branch providing tacit support.

xTYBALTx

I disagree slightly with your appraisal of checks and balances, leejo. Any one branch can overrule another, with the strongest brach being congress, the only one which has the power to amend the constitution.

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IceCold

Even that is limited by the ratification process that involves the EXECUTIVE Branch of our state's governments.

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leejo

And it ignores the enormous political power weilded by the President, the only nationally-elected member of the Federal Government. In practice, the President can usually out-politic all of Congress.

I believe that the legislative branches are involved in the ratification process. I'm happy to stand sort-of-corrected in that the legislature can override, in this very very very special circumstance, the other two branches of government. It's possible but difficult to comprehend a despotic application of the amendment process.

xTYBALTx

The legislature can also override a Presidential veto. It can also impeach, convict, an unseat the President. As it can do with Supreme Court Justices.

And, IceCold, your statement was erroneous. That's aside from your misleading use of the word "executive."

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leejo

See I've often wondered about that. The Constitution says that when Congress impeaches the President, the Chief Justice presides. This implies to me that the Chief Justice could refuse, and scuttle the impeachment. In other words, you still need two branches to agree in this dramatic act.

And if Congress were to impeach the Chief Justice, guess who gets to pick the next nominee.

Pretty cool.

xTYBALTx

Interesting.

Nothing in Wikipedia discusses the possibility of the Chief Justice "filibustering" impeachment trials, but it does mention his/her procedural role. One wonders. . .

I'm not quite sure what you meant when you said that the Chief Justice gets to choose the "next nominee." The nominee for what? In any event, the Vice President presides over judicial impeachment trials, so the point is more or less moot with the current political configuration. If the Congress really wanted to impeach justices until they got one willing to preside over a Presidential impeachment, the VP would most likely filibuster it himself.

In any event, it's still quite clear that Congress has more power than either of the other two branches. But, thanks to it's fractuitous nature, will hopefully forever be too paralyzed to get its act together.

Our founders were some smart folks, weren't they?

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leejo

I didn't say the Chief Justice gets to pick the next nominee. The message I was trying to convey was that the President is the sole party that the Constitution grants authority to nominate Supreme Court Justices, so if a Chief Justice declined to attend a Presidential impeachment, and Congress impeached the Chief Justice for that action, they'd still be stuck because the President they were attempting to impeach could simply allow that vacancy to continue as long as he pleased.

Needless to say people would be rioting in the streets of Washington is things got that nutty. It's hard to imagine but nonetheless the Constitution is designed with the rough-and-tumble in mind.

It's an "it takes two to tango" system.