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| Excon - The 4th Amendment |
ETWolverine |
02/03/06 |
Ex,
You keep bringing up the 4th Amendment as your explanation of why Bush is violating the law with the NSA eavesdropping program. You have claimed that neither I nor the other conservatives on this board understand what the 4th Amendment says. And now you have gone on to accuse 4 of the most experienced judges in the entire world of not understanding the 4th Amendment either.
So in the interest of learning, I have decided to look at the 4th Amendment's text and see what it says in exacting detail.
"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."
Lets take the first part of that:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
That word, "unreasonable", is a key point. Is there anything "unreasonable" about search and seisure of evidence of espionage or terrorism? I don't think so, and neither do you, based on what you have said in the past. Only UNREASONABLE searches are prohibbited by the constitution. Intercepting enemy communications is not only not unreasonable, it is the very least that can be expected of our military/intelligence people. This is proven by the hoopla that arose from the fact we should have had enough information to prevent 9-11, but the information wasn't shared between agencies. Nobody argued that the information regarding 9-11 was obtained "illegally"... in fact quite the opposite. It was argued that regardless of who obtained the information and how it was obtained, it should have been shared between agencies to prevent 9-11 from occuring. And that is a position that I believe you agree with, as do I.
So, listening in on enemy communications (domestic or foreign) does not meet the criterion of "unreasonable", since it is emminently reasonable to do so. It is not reasonable to do so in criminal cases, since even criminals have the right to expect privacy in their domocile. Enemy combatants do not reasonably have that expectation.
Now, for the next part of the text:
"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."
The text here is a bit ambiguous. It does NOT say that you cannot search a domicile without a warrant. It only states that if you DO issue a warrant, it must be based on probable cause and name the places to be searched and things to be searched for. That's an important point. If you want to be a REAL originalist (as you have claimed in the past), then you should NOT be claiming that you need a warrant for every search, since the Constitution doesn't say that it does. The courts have determined that we do need a search warrant in every criminal case where a search is performed, but that is simply a judicial interpretation, not the actual text of the Constitution. And the same courts have been consistantly making the same determination for the past 40-50 years that the 4th Amendment does NOT apply to enemy communications, especially during a time of war (but even in peacetime). So, unless you are prepared to explain, in legal terms, why you accept the court interpretation that Warrants are required in all criminal cases, but don't accept the same court's interpretation that warrants are not required cases of enemy communications, consistancy would demand that you accept both interpretations as equally legitimate. Or else explain the inconsistancy (in terms other than "it's not fair", please).
Elliot |
Clarification/Follow-up by tomder55 on 02/03/06 1:11 pm:
From Mark Levin's blog at NRO:
Hillary Clinton calls the House of Representatives a plantation. I also keep hearing that Congress is corrupt. And yet, the question is asked everyday, why didn't the president seek permission from Congress — by way of statutory changes to the FISA — before ordering intercepts of enemy communications? Maybe he believes Congress is corrupt and plantation-like?
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