NEWS - Gonzales defends the undefendable
On Monday, Attorney General Gonzales defended Bush's "domestic spying program" before the Senate Judiciary Committee. The administration, for the most part, won't talk about the program, beyond claiming that it only covers international calls by al Qaeda agents. How do we know this is so? Well, apparently, we can take the administration's word for it.
Forgive me, but that simply isn't good enough.
The Fourth Amendment is abundantly clear when it says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." A phone wiretap is a form of search--therefore, if it's in this country, it requires a warrant, supported by probable cause established by sworn testimony. Even if the Commander-in-Chief clause (Article II, section 2) allowed some type of warrantless searches (doubtful at best), the Fourth Amendment, being subsequent to this clause, would limit the power. There is no exception for wartime in the Fourth Amendment--if the authors of the Constitution had intended such an exception, they would have put one in (as they did with the Third Amendment and the Article I, section 9 Habeas Corpus clause). If a Federal law authorized the wiretaps, then the law is invalid because it is unconstitutional.
Gonzales cited as precedents the phone and telegraph wiretapping done by Lincoln, Wilson, and F.D.R.. I find it interesting he would choose those three presidents to mention, since they're the three (in that order) who I'd pick as the worst presidents--all three had notorious histories for violating the Constitution and expanding Federal power, and the fact they didn't get the impeachments they richly deserved doesn't persuade me of Bush's virtue.
The Carter administration, addressing the need to monitor Soviet spies discreetly while at the same time ensuring that secret wiretaps weren't abused, set up the FISA courts. The FISA courts have rejected only four warrants out of almost 19,000 applications*. If Bush can't get a warrant to tap the phones of the few "known al Qaeda agents" he wants to monitor from such an accommodating court, one has to wonder why. The FISA court proceedings are secret--so the terrorists wouldn't know about it. The FISA court rules allow the warrant to be issued up to three days after the wiretap is in place--so the idea that the proceedings would impede emergency monitoring goes out the window. These are fairly weak protections, but they are protections in that there is judicial review--the warrant needs approval of someone outside the Executive Branch.
I also find it interesting to note that Bush, in a speech he gave on Thursday about thwarted attacks, offered no evidence that the wiretap program is doing anything positive. Two thoughts that come to my mind from the accounts I've read of the speech bear consideration. First, when Bush says, "If someone from al-Qaeda is calling you, we'd like to know why," I would wonder how many times they order take-out or dial the wrong number, that is, how many innocent people might get caught up in this wiretapping. That's why judicial review is important--the courts should have a chance to say, "no--you don't have any proof that this person did anything wrong." Second, I note he called the target of the attack by the wrong name--making me question his grasp of the facts in general. Anyone can make mistakes, of course. If I made a mistake here, an alert reader is free to correct me. If the administration makes a mistake with its wiretaps and subsequent arrests, who'll correct them?
Among all legal entities, governments have unique powers. The only thing that keeps that power in check is respect for the rights of the citizens. Any violation--even a trivial violation, and even violations against people who have no respect for rights themselves--should be taken seriously because officials who ignore the rights of their those they're supposed to protect set dangerous precedents. It is with some irony I ask the question I'm about to ask--irony, because, similar questions are usually asked by statists of those who value their freedom--or at least their privacy--without any justification. However, while individuals should not have to answer for themselves, the government and its agents, due to its unique nature among human associations, should have to answer for itself, and its agents should have to answer for themselves. Therefore, I ask: Mr. Bush--if the "domestic spying" program is as innocent as you claim, then what have you got to hide?
* (Wikipedia says some sources claim five rejected warrants. I remember U. S. Attorney Jim Letton, during a lecture about the PATRIOT Act given at the 2005 Mensa Annual Gathering, saying there had been only four rejections--so I chose to go with that figure.)
Forgive me, but that simply isn't good enough.
The Fourth Amendment is abundantly clear when it says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." A phone wiretap is a form of search--therefore, if it's in this country, it requires a warrant, supported by probable cause established by sworn testimony. Even if the Commander-in-Chief clause (Article II, section 2) allowed some type of warrantless searches (doubtful at best), the Fourth Amendment, being subsequent to this clause, would limit the power. There is no exception for wartime in the Fourth Amendment--if the authors of the Constitution had intended such an exception, they would have put one in (as they did with the Third Amendment and the Article I, section 9 Habeas Corpus clause). If a Federal law authorized the wiretaps, then the law is invalid because it is unconstitutional.
Gonzales cited as precedents the phone and telegraph wiretapping done by Lincoln, Wilson, and F.D.R.. I find it interesting he would choose those three presidents to mention, since they're the three (in that order) who I'd pick as the worst presidents--all three had notorious histories for violating the Constitution and expanding Federal power, and the fact they didn't get the impeachments they richly deserved doesn't persuade me of Bush's virtue.
The Carter administration, addressing the need to monitor Soviet spies discreetly while at the same time ensuring that secret wiretaps weren't abused, set up the FISA courts. The FISA courts have rejected only four warrants out of almost 19,000 applications*. If Bush can't get a warrant to tap the phones of the few "known al Qaeda agents" he wants to monitor from such an accommodating court, one has to wonder why. The FISA court proceedings are secret--so the terrorists wouldn't know about it. The FISA court rules allow the warrant to be issued up to three days after the wiretap is in place--so the idea that the proceedings would impede emergency monitoring goes out the window. These are fairly weak protections, but they are protections in that there is judicial review--the warrant needs approval of someone outside the Executive Branch.
I also find it interesting to note that Bush, in a speech he gave on Thursday about thwarted attacks, offered no evidence that the wiretap program is doing anything positive. Two thoughts that come to my mind from the accounts I've read of the speech bear consideration. First, when Bush says, "If someone from al-Qaeda is calling you, we'd like to know why," I would wonder how many times they order take-out or dial the wrong number, that is, how many innocent people might get caught up in this wiretapping. That's why judicial review is important--the courts should have a chance to say, "no--you don't have any proof that this person did anything wrong." Second, I note he called the target of the attack by the wrong name--making me question his grasp of the facts in general. Anyone can make mistakes, of course. If I made a mistake here, an alert reader is free to correct me. If the administration makes a mistake with its wiretaps and subsequent arrests, who'll correct them?
Among all legal entities, governments have unique powers. The only thing that keeps that power in check is respect for the rights of the citizens. Any violation--even a trivial violation, and even violations against people who have no respect for rights themselves--should be taken seriously because officials who ignore the rights of their those they're supposed to protect set dangerous precedents. It is with some irony I ask the question I'm about to ask--irony, because, similar questions are usually asked by statists of those who value their freedom--or at least their privacy--without any justification. However, while individuals should not have to answer for themselves, the government and its agents, due to its unique nature among human associations, should have to answer for itself, and its agents should have to answer for themselves. Therefore, I ask: Mr. Bush--if the "domestic spying" program is as innocent as you claim, then what have you got to hide?
* (Wikipedia says some sources claim five rejected warrants. I remember U. S. Attorney Jim Letton, during a lecture about the PATRIOT Act given at the 2005 Mensa Annual Gathering, saying there had been only four rejections--so I chose to go with that figure.)
Labels: NEWS
posted by John at 2/09/2006 05:39:00 PM
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