Can You Hear Me? Then Get Off My Phone!

"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 probablecause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." – Fourth Amendment

Was Bush (Congress, the NSA, whomever) wrong to employ the kinds of wiretaps he did? Did he violate Constitutional law? I don’t know. Just because a certain power is not forbidden to the federal government by the Constitution, doesn’t mean it’s licit.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." – Tenth Amendment

The government’s powers must be explicitly stated, but the people’s rights don’t have to be. There are those who say that these wiretaps are permissible under Constitutional law. Perhaps they are. Perhaps the framers never envisioned this kind of infringement on liberties, being as dependent on modern technologies as it is. However, I think the framers of the Constitution were concerned about the federal government infringing upon the rights that they thought citizens were entitled to.

The Constitution isn’t an infallible document. It would need to change in subtle ways as times and situations changed. It may be wrong. Its framers knew that. That’s what amendments are for.

Maybe citizens aren’t protected by current interpretations of Constitutional law against the kinds of wiretaps that were recently revealed. If that’s the case, perhaps it’s time to amend the Constitution to provide that protection.

"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’, because law is often but the tyrant’s will, and always so when it violates the rights of the individual." – Thomas Jefferson, Letter to Isaac H. Tiffany, 1819

I don’t think this country will be destoyed quickly by just a few deeds. I think rights will be slowly eaten away by narrow legal interpretations that put limits on liberties until the country that’s left isn’t worth defending. Is our current federal goverment evil or oppressive? No, of course not. However, I’m afraid that by the time we’d realize it has become oppressive, it’d be too late to reverse the damage. How many times must we patiently assent when the goverment says "trust us" before we may say "enough"?

Addendum 12/20/05:: Fr. Jim Tucker has a good round up and summary of questions raised by this controversy.

Comments 20

  1. John wrote:

    “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.”

    It is implicit in this statement that any just search shall require a warrant, and explicit what the requirements for such a warrant are. These requirements were not met. His actions were illegal. His actions require impeachment, removal from office, and prosecution to the full extent of the law.

    Posted 20 Dec 2005 at 12:52 am
  2. Rob wrote:

    I’ve heard (but cannot confirm) that Roman Catholic groups have been targeted for examination because the Catholic church leans toward “communism.” Any comments on this?

    Posted 20 Dec 2005 at 3:52 pm
  3. Funky Dung wrote:

    Given the Church’s teachings on subsidiarity, I find that unlikely.

    Posted 20 Dec 2005 at 4:12 pm
  4. John wrote:

    The Catholic Workers have been under surveilance by the FBI, not the NSA.

    Posted 20 Dec 2005 at 6:54 pm
  5. Steve Nicoloso wrote:

    Without speaking specifically toward Phonetapgate (which this may become) or to the morality of actions like it, I do have a couple thoughts:

    1) whether or not the US Constituion forbids such actions, there is no natural right, inscribed onto the Cosmos, to inviolable privacy of phone conversations;

    2) the small numbers of people being monitored (if such numbers are true) suggest both prudence and necessity;

    3) it is in the perceived interests of (most of) the American people, that the American Empire survive;

    4) to maintain the existence and hegemony of the American Empire, the US gov’t has performed many unsavory (and objectively immoral) actions over the years, e.g., in its Indian policies, various military “maneuvers” of WWII. In comparison, the NSA tapping a few phones (which we have to admit is not objectively immoral) doesn’t even rise to the level of a blip on the radar screen;

    5) if you want perfect freedom from gov’t intrusion, i.e., a land where the theory matches up with the practice, then you probably want to live in a small insignificant principality nestled in the Alps, and not in the richest Empire in the history of the world.

    Now whether the US need or ought be such an empire… THAT (to me) is the interesting question.

    My $0.02

    Posted 20 Dec 2005 at 9:23 pm
  6. John wrote:

    Steve, your reasoning is largely flawed.
    1)Our right to not have private documents examined without due process is as fundamental as any of the other rights enshrined in the Constitution. There is no reason to separate this out and say it is somehow less innate than other rights.
    2-5) There is absolutely no situations where a legitimate wiretap needed to protect our country would require such a lawless action.
    We have a closed court in which to secret warrants based upon classified intelligence. If there is need for an immediate tap it can be legally done so provided that a warrant is sought wihtin 72 hours.
    There are only two reasons he could be resorting to such procedures. Either he is using them to pursue unwarranted surveillance, or he simply has a pathological arrogance that compels him to extend his power illegally. Or possibly some combination of the two.

    Posted 21 Dec 2005 at 1:12 am
  7. Sean wrote:

    It is the pattern that bothers me. The current administration’s response to everything is always to try to increase the power of the presidency.

    And they planned to do it before 911 in at least one case. The idea to change our foreign policy to preemption was in the works before 911, but it was easily accepted afterward.

    I am not necessarrly against the Patrioit Act on a countinued temporary basis, but I have not head of one case where it allowed us to foil a terror plot. But accoring to Bush “it is an important good law”. Basically he said trust me.

    Posted 21 Dec 2005 at 4:02 am
  8. john wrote:

    Just as a note it’s important to be clear that these wire taps without warrants were not authorized by the Patriot Act. There are two distinct issues. One of a questionable law and the other of an illegal action.

    Posted 21 Dec 2005 at 4:10 am
  9. Steve Nicoloso wrote:


    1) you simply misunderstand what I mean by “natural right”, i.e., rights that go beyond mere contract, that would exist even if the Magna Carta or John Locke or James Madison had never existed.

    2-5) you seem to miss my point that there is law higher (or lower, depending on your perspective) than mere postive law, i.e., the law of necessity, which is really a simple corollary to the law of raw power. If we lived in a more noble society, and were perhaps surrounded by more or less equally noble societies, then perhaps (perhaps) security and the continued existence of the Empire could be ensured by strict adherence of all parties to positive law. Unfortunately we don’t live in such a society, and haven’t since the time of Monroe arguably Jefferson, but rather a World Power with “strategic interests” (to be understood as either “exploitable resources” or “competitors in exploitation”) in very nearly every region of the world (save perhaps for East Africa). Like it or not, we have all shared in the fruits of American enforcement of its “strategic interests”, and we shouldn’t therefore complain too loudly when a few folks get a bloody nose.

    Yes, Christians are (and ought to be) to the Empire as the soul is to the body. But here I think the “soul” is most righteously employed in curtailing those “strategic interests” to a more reasonable level.

    Posted 21 Dec 2005 at 4:32 am
  10. John wrote:

    My point was that these searches in no way advance “the Empire”. This has nothing to do with America’s security nor with it’s place in the world.

    This is not a situation to be cavalier and say that we are doing what is necessary to advance our nation.
    It does nothign to advance our nation and has the potential to do a great deal to rot our nation.

    And as far as natural rights go. There’s no need to enter into fuzzy concepts of rights not enumerated. The base assumption of our system is that the rights enumerated by our laws are a set entirely within the set of natural laws. If we have a grey area in our law we must turn back to those principles, but in a clear cut case there is no need to go to such effort.

    Posted 21 Dec 2005 at 7:31 am
  11. Steve Nicoloso wrote:

    My point was that these searches in no way advance “the Empire”. This has nothing to do with America’s security nor with it’s place in the world.

    This is not obvious. Who are we, at best not fully informed (at worst intentionally misled) plebes, to say what is necessary for the dark cynical powers to perpetuate on our behalf? Please understand, John, I am no fan of the dark cynical powers and would advocate and prefer, even to the extent of trading in my “benefits”, a society better scaled to that which might naturally arise, where dark and cynical powers (e.g., CSM from X-Files 🙂 ) might not be “necessary”. But, alas, we are very far from being such a society, and our very clamoring for National Action (of one kind or another) continues to militate in this wrong direction. In short, the interests of justice and peace would be served far better if the Federal Gov’t were nearly irrelevant and the UN even less so.

    My $0.02

    Posted 21 Dec 2005 at 2:39 pm
  12. Advogado de Diabos wrote:

    What do you all think of the public’s attitude at this point. Are we fed up, have we had enough, or are we still willing to give up some privacy, some rights, and some powers in exchange for security?

    (I’m just trying to get a feel for attitude here, I’m not claiming that any of these measures has made us more secure)

    Posted 21 Dec 2005 at 3:19 pm
  13. Nathan wrote:

    Whether you like the state of the law or not, relevant and controlling federal court precedent clearly establishes that Bush’s acts were completely legal.

    Posted 22 Dec 2005 at 1:34 am
  14. John wrote:

    please cite such precedents

    Posted 22 Dec 2005 at 2:47 am
  15. Funky Dung wrote:

    I’m willing to accept that you may be right, Nathan, but I’d like to see those precedents. Anyhow, like I said, Bush’s actions might have been legal, but they may not have been ethical or in keeping with the spirit of the 4th amendment. If his actions were indeed legal, then perhaps we’re in need of another amendment.

    Posted 22 Dec 2005 at 2:54 am
  16. The Waffling Anglican wrote:

    “The Department of Justice believes – and the case law supports – that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general,” Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.
    That same authority, she added, pertains to electronic surveillance such as wiretaps.
    More recently, the U.S. Foreign Intelligence Surveillance Court — the secretive judicial system that handles classified intelligence cases — wrote in a declassified opinion that the court has long held “that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.”

    Frankly, the supposed outrage over this seems curiously selective. No one raised an objection to Clinton’s wiretaps of Americanss in peacetime, but Bush’s wiretaps of the enemy in wartime are a scandal. Perhaps I have grown cynical over the last few decades – but were a member of the other party in office, I suspect those who object to the current situation would be conspicuously silent just as they have been for previous such incidents.

    Posted 22 Dec 2005 at 10:15 pm
  17. John wrote:

    Foreign! Foreign intelligence purposes!
    The president as commander in chief may authorize spying on foreign soil. That is within his rights, and not a violation of the Fourth Amendment.

    Conducting such searches in the United States is highly questionable, and performing them on American Citizens is simply illegal.

    Posted 23 Dec 2005 at 12:57 am
  18. The Waffling Anglican wrote:

    “Conducting such searches in the United States is highly questionable, and performing them on American Citizens is simply illegal.”

    So then what about Aldrich Ames?

    Posted 23 Dec 2005 at 2:20 pm
  19. Funky Dung wrote:

    “Frankly, the supposed outrage over this seems curiously selective.”

    I simply didn’t know about it in 1994, nor did I know squat about politics back then (I was in 10th or 11th grade).

    Posted 24 Dec 2005 at 1:56 pm
  20. howard wrote:

    Spy Agency Mined Vast Data Trove, Officials Report

    The above link is from yesterday’s NYTimes and delineates far more extensive activity than was previously acknowledge since the original wiretap story broke.

    In addition, the pre-existing case law is not entirely on point with the current situation. There have indeed been limited allowances of this kind during the initial stages of warfare, but the extent of this recent activity doesn’t fit within those parameters.

    Whether Clinton did the same thing or not is irrelevant, unless that’s how a people should be justifying their actions. This is not how responsible parties should conduct themselves, and that statement would stand (I hope) even if I were a fan of Bill Clinton (which I am unabashedly not).

    The legality of this particular wiretap situation is suspect. It may or may not be within the legal allowance of executive power, but the legitimacy of it is far from obvious — hence we have a judge well-versed in this specific area of law who has apparently resigned in protest.

    By the way, my favorite parsed explanation in that article surrounds this Presidential assurance:

    “Any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”

    Oh, and have a merry Christmas Funky, and everyone else too.

    Posted 25 Dec 2005 at 4:59 am

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