I'm sorry if I came across that way, because that wasn't my intention. I was trying to talk about the other side of that coin: if a cop reports to the scene of a shooting, and someone says "that man over there has a gun!" then the cop is probably within his rights to search the man without waiting for a warrant. Obviously if he has no reason to search you, he should not, and I don't want to grant the police powers like that.
The thing is, we're not talking about cops, here. We're talking about the military...tons of uniformed servicemen are working at the NSA, intercepting communications of all kinds. This wiretapping program, as it is alleged to have been carried out, involves monitoring phone numbers captured on the battlefield...notes found in caves with numbers, radio frequencies, etc. When you send a request to your signals squadron to monitor a radio freq, it shouldn't have to be stopped at a border. That's
never been how wars are fought, and if people want to change that, that's their right, but pretending it flies in the face of longstanding rights is just not supported by history.
Imagine watching a phone number belonging to any enemy person; doesn't matter who, but for the sake of argument we'll call him bin Laden's chief toilet paper logistics control officer. Mr. Bumwipe makes calls twice a month, orders toilet paper to be delivered in various locations. The military listens to these calls, placed from Afghanistan to wherever, and they're pretty innocuous. Maybe the calls are placed to wherever bin Laden is going to be next. Maybe he just likes ordering toilet paper. Maybe he uses these orders to pass messages to people. We don't know...we just know we found his phone number in a safe in a cave guarded by some unhappy people. He calls Kabul, then Kandahar, then Islamabad, then Kashmir, and some bored Petty Officer 3 sitting in a basement in Maryland records all these calls and translates them and tries to put together a map for the joint forces in the area. One week, Mr. Bumwipe calls Hawaii. He speaks to an American citizen, and this time, he says toilet paper with a 70-kiloton yield will be delivered tomorrow to the Marine base at Kaneohe Bay.
I don't think that PO3 should be calling a lawyer first, I think he ought to be passing the information on to the relevent military units. I certainly can't think of a reason why he shouldn't have been allowed to intercept the call at all. And that's really what it comes down to: providing "probable cause" to a judge involves describing what you're looking for. Not all searches require warrants, but ALL WARRANTS must meet the 4th Amendment standard: "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."
Should the corporal who opens the safe in Afghanistan write a separate affirmation for each phone number he finds, asking for a warrant? That's how it would be done by the police, right? If the phone numbers he finds are not accompanied by evidence of what they are used for, a judge might not issue a warrant at all. If you don't know the name of the person you're listening to, or what exactly they're doing, what exactly are you going to swear an oath about? But just because you're not looking for evidence in a criminal trial doesn't mean you shouldn't listen to the enemy when he communicates...that's suicide.
You asked where Judge Taylor said warrants were always required:
She also says specifically that FISA warrants would require the name of the person to be tapped, not just the number, which would of course be impossible. These kinds of restrictions make sense for civilian law enforcement. They really have no place on the battlefield...again, that's just not how wars have ever been fought.
The argument in the wiretap case had nothing to do with the "potential for abuse." The damage claimed was the "chilling effect" the program had on the plaintiff's communications with people believed to be members of al-qaeda. They didn't claim the government was making up lies in order to spy on people, they claimed that they had reason to speak with foreign terrorists, and could not have those conversations because people might be listening. I don't have a violin that small.
And as far as airport searches...well,
this law looks like they took it out of the businesses' hands to me. While people have the right not to fly, the government mandated that bags would be screened by special equipment, searched by hand, etc., by federal law enforcement officers. That makes it a government search in my book.
The drug dog thing makes it "plain view," yes. That does not mean it is not a search, it just means that it falls under a clearly defined "exception" to warrant requirements. You're making my point for me in this part of the discussion, though: there are many, many ways a police officer can search you or your possessions without first needing to consult a judge. One of them involves waiting to see whether a dog sits down near you. And if that's a sign that the dog thinks you have marijuana, and even if you don't have marijuana, anything illegal they DO find on you is still seized as part of a legal warrantless search.
You've mentioned the Canadian citizen a couple of times. I don't disagree that that's a horrible thing, but I don't think it's relevent to whether or not the military can intercept enemy communications.
The military is bound by law against performing domestic law enforcement. I think that's a good thing. But we aren't talking about law enforcement, and the wiretapping program is a totally separate issue from whether or not we should be detaining and arresting U.S. persons on one end of the conversations we hear. But I still don't see what right is being violated here. I don't think there is a right to communicate with the enemy without the military listening in, and the only legal argument that has gotten traction on this matter has been based on the idea that by listening in, we're making the enemy uncomfortable.
10-20-2006, 07:51 PM
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