Re: [Full-disclosure] Spy Agency Mined Vast Data Trove

On Tue, 27 Dec 2005, Paul Schmehl wrote:

Well, no, they are not "clearly illegal". That is a matter of opinion and not law. In fact, all legal precedents indicate that the program is legal, within the purview of the President's powers under Article II of the Constitution.

Um. No.

What he has done is attempt to completely gut the 4th Amendement of the US Constitution of any meaning. To wit:

  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.

I don't see a 'except in time of war' clause anywhere. Do you?

It was simply never conceived that an administration would attempt to gut the 4th Amendment by force of sheer linguistic trickery. The second sentence clearly is defining when warrants for searches allowed by the first sentence may be issued. _Implicitly_ those searches may only be legally done using a legally issued warrant (no warrantless searches or the entire Amendment would be meaninglesss). But it fails to say so explictly.

Sooner or later the courts will very likely slap him down. If he is very unlucky, he will lose his impeachment-proof majority in Congress next year and be impeached for it.

But if the rest of us are very unlucky, this huge step towards totalitarianism by the Bush administration will be let stand as a very bad precedent.

I will guarantee you that, if it stands, historians in a century or so will point to Bush's administration as the point when the Republic clearly had made the transition to a Dictatorship where laws were in practice whatever the President said they were, and the "goddamned piece of paper" [1] called the US Constitution was just irrelevant.

Benjamin Franz

[1] GW Bush, Nov. 2005
     "Stop throwing the Constitution in my face,œItsājust a goddamned piece of paper!”
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