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I have plum run out of patience with the uproar over FISA. Of all the issues the Democrats have muffed this ranks among the least of their failures. I'm more exercised over matters that this Congress should be addressing... like not having to cast our votes on faith or seeing this country's future squandered on a murderous, colonial adventure.
But what about the 4th Amendment... the rule of law! Isn't that just as important? Yes, but what Obama can do about FISA, irrespective of the bill's final language, would be wholly symbolic. The problem lies with the very nature of a secret court.
FISA HEARING: SENATE JUDICIARY COMMITTEE
JULY 28, 2006
"It would be good for Congress for a federal court to make that constitutional judgment. Congress lacks the institutional capacity to make a constitutional judgment of this nature. As a political branch, its members are susceptible, in appearance if not in fact, to the partisan pressures of subservience, by members of the President's party, or hostility, by members of the opposition. While Congress may make broad constitutional judgments in legislating, it has no mechanism for making judgments that require assessment of the details of a particular program. Congressional oversight, while it should continue, is misused when it is asked to bear the weight of such constitutional judgments."--- John Schmidt, former Associate Attorney General of the United States under President Bill Clinton.
"Nevertheless, I reiterate the Administration's willingness to support appropriate legislation that does not restrict the President's ability to collect foreign intelligence necessary for the national security. We need to strike a balance that sacrifices neither our security nor our civil liberties."
--- Jamie Gorelick, Deputy Attorney general in 1994 responding to questions about President Clinton's Executive Order 12949 allowing warrantless physical searches.
"By this logic, noted Kate Martin of the ACLU , "It is also true that torture allows the government to get information it would not otherwise get."
As we see, while Bush's power-grab may seem the more egregious, libertarians like Jonathan Turley had long been up in arms that FISA was a slippery slope. And that proved true.
Since its founding in 1978, the secret court has received 7,539 applications to authorize electronic surveillance within the U.S. In the name of national security, the court has approved all but one of these requests from the Justice Department on behalf of the FBI and the NSA. Each of these decisions was reached in secret, with no published orders, opinions, or public record.
The ACLU had long wanted to litigate FISA but I can guarantee our present Supremes would make matters worse. Consider it's record on cases involving the 4th Amendment in general:
ILLINOIS v. CABBALES (03-923) : Jan 24, 2005 (6-2) A man stopped for speeding had his car sniffed by a drug dog while he was being issued a ticket, was not detained for longer than he normally would have to wait for the dog. Dog alerted on the car, the car was searched and cannabis was found in the trunk. The U.S. Court overturned the Illinois Supreme Court and found: "A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment."
BOARD OF EDUCATION OF POTTAWATOMIE COUNTY v. EARLS (01-332) : June 27, 2002 (5-4) Supreme Court ruled that any extracurricular activity is cause for drug testing in public schools.
ATWATER v. LAGO VISTA (99-1408) : April 24, 2001 (5-4) A woman was stopped for not wearing her seatbelt while driving with her children. The police officers "pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took her 'mug shot' and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond." Atwater sued, arguing that this type of treatment as unreasonable and therefore a violation of the Fourth Amendment. Souter, writing for the 5-4 majority said that the police may arrest and mistreat them at any time, so long as they have reasonable suspicion that even the smallest infraction has been committed.
FLORIDA v. WHITE (000 U.S. 98-223) : May 17, 1999 (7-2)
Two months after officers observed respondent using his car to deliver cocaine, he was arrested at work on unrelated charges. At that time, the police seized his car without securing a warrant because they believed the car was subject to forfeiture under the Florida Contraband Forfeiture Act (Act). During a subsequent inventory search, the police discovered cocaine in the car. Respondent was then charged with a state drug violation. The Court ruled in another terrible decision that police may seize a car anytime they like if they have probable cause to believe it has ever been involved in any crime.
WYOMING v. HOUGHTON (000 U.S. 98-184) : April 5, 1999 (6-3)
A decision allowing searches of passenger's purse with probable cause against the driver, when the passenger was not holding the purse.
MINNESOTA v. CARTER (000 U.S. 97-1147) : December 1, 1998 (6-3)
The Court made a bizarre ruling that unless guests in a home are staying over night, they have no legitimate expectation of privacy from the spying eyes of police. In this case a policeman peeked through the closed blinds into a private residence in an apartment complex and saw some people bagging white powder. The officer arrested then men as they left the building. The court held that "Any search which may have occurred did not violate their Fourth Amendment rights. Because respondents had no legitimate expectation of privacy, the Court need not decide whether the officer's observation constituted a 'search'." Ugly as hell.
MARYLAND v. WILSON (000 U.S. 98-184) : February 19, 1997
One of the recent decisions by Rehnquists fascist court allowing police to order passengers to exit a vehicles pulled over for traffic stops without even any suspicion of danger, threat, or wrongdoing. See PENNSYLVANIA v. MIMMS
FLORIDA v. BOSTICK (000 U.S. 89-1717) : June 20, 1991 (6-3)
A decision allowing police sweeps of buses which are recognized as "are inconvenient, intrusive, and intimidating." Despite being trapped in his seat at the back of a bus by several officers without any probable cause, the defendant should have known that he was "free to leave" and had the right to deny any and all requests by the police for information and searching his belongings.
OLIVER v. US (466 US 170) : April 17, 1984 (6-3)
In a nightmarish decision going against all reasonable standards of privacy, Reagan's fascist court ruled that police are exempt from private property trespassing restrictions and may search any area of private property, even when there are fences and No Trespassing signs, except for the area immediately around "the home".
MICHIGAN v. LONG (463 U.S. 1032) : July 6, 1983 (6-3)
The court allowed a 'weapons search' of a vehicle to as a means of 'protecting' the officers who had detained a man who had driven into a ditch and appeared intoxicated. The man's car contained a pouch of cannabis and he was arrested. The Supreme Court ruled "The circumstances of this case justified the officers in their reasonable belief that respondent posed a danger if he were permitted to reenter his vehicle. Nor did they act unreasonably in taking preventive measures to ensure that there were no other weapons within respondent's immediate grasp before permitting him to reenter his automobile. The fact that respondent was under the officers' control during the investigative stop does not render unreasonable their belief that he could injure them."
UNITED STATES v. ROSS (456 U.S. 798) : June 1, 1982 (6-3)
A huge and terrible decision by the High Court which explicitly attempted to allow searches of any containers inside any vehicle on the basis of a police officer's assertion of probable cause, totally circumventing the 4th Amendment's warrant requirement. Thurgood Marshall's dissent is extremely good.
NEW YORK v. BELTON (453 U.S. 454) : July 1, 1981 (5-4)
The court allowed an officer to unzip a zipped jacket pocket and remove the contents of the pocket from a jacket left in the backseat of a car after he had arrested the driver and passengers. The court revised the Chimel v. California standard which said that the State was allowed to search those things within immediate reach of someone when arrested. This opinion also attempted to make broad changes by saying that : "Not only may the police search the passenger compartment of the car in such circumstances, they may also examine the contents of any containers found in the passenger compartment. And such a container may be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have."
RAWLINGS v. KENTUCKY (448 U.S. 98) : June 25, 1980 (7-2)
A case where it is determined that even if a second-party's 4th Amendment rights are abridged and that breach yields evidence against the first person, that the first person has no 'standing' to prevent the use of property improperly searched. Police had a warrant to arrest a person, but found several other people when they arrived at the location. They 'smelled marijuana' and got a second warrant to search the actual house, after which they forced a woman to empty her purse which contained a controlled substance. The defendant admitted the drugs were his. The court ruled that despite the fact that the woman had been improperly searched, resulting in materials which later were used to prosecute the defendant, that the defendant could not exclude the evidence because he had no 4th Amendment protection over someone else's purse. Very bad.
PENNSYLVANIA v. MIMMS (434 U.S. 106) : December 5, 1977 (6-3)
The court allowed an officer to routinely order all people stopped for traffic violations out of their car (and presumably all passengers) without any suspicion or cause.
COURT SAYS U.S. SPY AGENCY CAN TAP OVERSEAS MESSAGES
By DAVID BURNHAM, SPECIAL TO THE NEW YORK TIMES (NYT) 1051 words Published: November 7, 1982
A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.
Sorry, I don't get all in a froth if my candidate for president disdains grand empty gestures.
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