The 4th Amendment.... Challenged? Yes.... Lost? No.

[pinto]

The agreements on the FISA bill in the House this week were troubling to many of us. The Senate is scheduled to reconsider next week.

I am no constitutional scholar, by far, but the crux of it seems to go to due process and the right of the accused to confront the accuser, at some point, in court. That's a legit argument, in this layman's opinion.

While allowing for judicial oversight of a warrant, i.e. wiretaps, which seems legit and standard for any type of 4th Amendment legal action, the secrecy aspect, if I read it right, allows for no challenge or recourse, after the fact. Is there an appeal process in the bill?

The FISA law appears greatly flawed on that point.

And, as much as it challenges our 4th Amendment, it's not the end of the world, it remains open and liable to being revisited and rewritten to better reflect the sense and sensibilities of the Bill of Rights.

(aside) And, as has been mentioned, it didn't need amending at all. But that's another issue at this point, as far as the House is concerned. We'll see what the Senate has to say. Either way, I surely hope we revisit it at the next Congress session.

:kick:

[Baby Snooks]

1. There's no challenge or recourse now.,..

Every day in this country law enforcement engages in illegal wiretapping and there is no challenge or recourse even through the Justice Department. This will just make it more legal for law enforcement to do what they're already doing and were doing long before 9/11 and anyone who thinks they weren't either is a Republican who thinks the end justifies the means or simply lives in the Twilight Zone.

What this bill may do is remove the right to sue any common carrier that allows the wiretapping. Not that many people have the means to do so. But at least they can do so. Unless Congress says they cannot.

That is really the danger in this.

[pinto]

3. Yeah, good point. J Edgar Hoover's FBI comes to mind, the "dirty laundry" arm

of the federal bureaucracy. As does the McCarthy era to some extent (a Congressional witch hunt, it ought to be noted.)

Both roundly rebutted, for the most part.

[Forkboy]

2. With all due respect, this is like putting lipstick on a pig.

Color me revolutionary, but I can't find any bright side to this.

Except for this...I'm so cynical I expect this stuff now, so at least I'm not disappointed. x(

[pinto]

4. I'm not looking for a bright side of the thing nor a woe we are lost aspect.

Just trying to get a sense of it all. I like constitutional issues and think it goes on, as intended.

[Forkboy]

7. I understand.

I like constitutional issues and think it goes on, as intended.

Not a bad way to approach it. :)

[pinto]

9. Thanks. It *can* be revisited.

:hi:

[BzaDem]

5. Well, even criminal wiretaps are secret until they are done.

If the government goes to court and gets a warrant from a judge to wiretap you, that is secret from you until the government is done. (Otherwise, there would be no point to the wiretap.)

If that wiretap is to be used against you in a criminal trial, then you get to make arguments for why the wiretap should be thrown out (if the original judge who authorized it erred on a point of law when authorizing it). Only in this way is there any after-the-fact review (in standard wiretap cases, non-FISA).

But with FISA, the point of wiretapping is not to obtain evidence to use in criminal trials. It is for preventive means. So there is not much of an appeals process, but then again, in any criminal wiretap, they aren't trying to use the evidence against you in the first place (so there isn't much to appeal -- the government already concluded its business).

I think the main problem that the judicial review that the FISA bill requires in the first place isn't very adequate. In addition, the retroactive immunity provision gives blanket immunity to corporations who illegally wiretapped US citizens in the years after 9/11 (when Bush requested it, illegally). That sets a horrible precedent: the US government can ask a phone company to wiretap with no authority to do so, and the phone company will comply, because the phone company will know that they will just be given immunity next time this happens.

So I agree with your general assessment: FISA definately hurts the 4th amendment, but it certainly doesn't eradicate its protections entirely.

[Fovea]

6. a point of disagreement.

"it seems to go to due process and the right of the accused to confront the accuser, at some point, in court.'

I think it is far better expressed as the right of citizen's to be secure in their properties and goods.

The critical flaw of the legislation is granting immunity for telcos who allowed their hardware and software to be used by the government in absence of any sort of warrant to en masse intercept the bulk of, if not the whole of electronic communication across lines wherein the users had the expectation of privacy.

It creates the moral hazard of indemnifying corporations from participation in future and past high crimes and misdemeanors.

That's the problem as I see it.

There hasn't been a fourth amendment worth speaking of since the Reagan years. This will kill it entirely. And the precedent will bleed over to Blackwater extrajudicial killings, etc.

[pinto]

8. Yeah, see your points. I was going down the due process line of thinking.

In light of the recent Supreme Court ruling about "detainees" at Gitmo, I figured due process may be a Constitutional angle to challenge this, as well.

Thanks for your input.

:thumbsup:

[MasonJar]

10. Jonathon Turley says it is unConstitutional. That is good enough for me.

He is a highly regarded and sensible Constitutional scholar and professor of law ot George Washington School of Law.