Full Disclosure mailing list archives
Re: Spy Agency Mined Vast Data Trove
From: Paul Schmehl <pauls () utdallas edu>
Date: Tue, 27 Dec 2005 18:32:34 -0600
--On December 27, 2005 2:49:18 PM -0800 Benjamin Franz <snowhare () nihongo org> wrote:
Again, note the modifier, "unreasonable". There are at least 26 known instances where you can be arrested without a warrant and/or your home searched without a warrant. The key is "unreasonable" searches.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.
You don't have to. You can read the Supreme Court decisions and quickly realize that no right is absolute. The classic example is yelling "Fire!" in a crowded theatre. When your exercise of your rights begins to infringe on the rights of others, then your rights are subsumed by the needs of the greater. You don't have the right to be a terrorist and plot the murder of thousands and expect to be protected by the US Constitution from any inquiry at all into your activities. In fact there's a sound legal argument that you can be arrested and jailed without probably cause or warrant and never see the light of day until the President decides it's OK. That's written right in to the Constitution, so it's a bit hard to argue that it doesn't exist.I don't see a 'except in time of war' clause anywhere. Do you?
As one Supreme Court justice once said, "The Constitution is not a suicide pact."
Then you must explain how, for example, a police officer can enter your house without your permission and search your house without your permission if there are "exigent circumstances". Warrantless searches are done routinely and accepted by the courts without question, if the circumstances fit an accepted set of criteria.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.
Furthermore, if you think this administration is the first to do warrantless searches, then you're naive. Just seven months after FISA became Public Law 95-511, Jimmy Carter signed an order for warrantless searches of electronic communications.
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.
Extremely unlikely. All court precedent is on his side.
You don't have a clue what totalitarianism is. Try moving to North Korea or China, for example. Great Britain will soon have a system that can photograph your car's license plate *on every highway in Britain*, so that the police can tell exactly where you were, where you went, how you got there, how fast you drove, etc.,etc.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.
People said the same thing about Lincoln when he suspended habeas corpus. They even called him "King Abraham" and "dictator". The Chief Justice of the Supreme Court complained that what Lincoln was doing was unconstitutional but he was powerless to do anything about it because "Lincoln controls the army."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.
Now he is thought to be one of the greatest Presidents we've ever had.Before you have an apopleptic fit, you might want to bone up on your history a little. Or ditch some of the paranoia.
Paul Schmehl (pauls () utdallas edu) Adjunct Information Security Officer University of Texas at Dallas AVIEN Founding Member http://www.utdallas.edu/ _______________________________________________ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Current thread:
- Re: Spy Agency Mined Vast Data Trove, (continued)
- Re: Spy Agency Mined Vast Data Trove Leif Ericksen (Dec 26)
- Re: Spy Agency Mined Vast Data Trove obnoxious (Dec 26)
- Re: Spy Agency Mined Vast Data Trove Leif Ericksen (Dec 26)
- Re: Spy Agency Mined Vast Data Trove Rodrigo Barbosa (Dec 26)
- Re: Spy Agency Mined Vast Data Trove Kurt Buff (Dec 27)
- Re: Spy Agency Mined Vast Data Trove Paul Schmehl (Dec 27)
- Re: Spy Agency Mined Vast Data Trove Benjamin Franz (Dec 27)
- Re: Spy Agency Mined Vast Data Trove Dean Pierce (Dec 27)
- Re: Spy Agency Mined Vast Data Trove Kurt Buff (Dec 27)
- Re: Spy Agency Mined Vast Data Trove Gary E. Miller (Dec 27)
- Re: Spy Agency Mined Vast Data Trove Paul Schmehl (Dec 27)
- Re: Spy Agency Mined Vast Data Trove Rodrigo Barbosa (Dec 27)
- Re: Spy Agency Mined Vast Data Trove Leif Ericksen (Dec 26)
- Re: Spy Agency Mined Vast Data Trove coderman (Dec 27)
- Re: Spy Agency Mined Vast Data Trove Leif Ericksen (Dec 28)
- Re: Spy Agency Mined Vast Data Trove Rodrigo Barbosa (Dec 28)
- Re: Spy Agency Mined Vast Data Trove Leif Ericksen (Dec 28)
- Re: Spy Agency Mined Vast Data Trove Rodrigo Barbosa (Dec 28)
- Re: Spy Agency Mined Vast Data Trove Stan Bubrouski (Dec 28)
- Re: Spy Agency Mined Vast Data Trove and other tales Steve Kudlak (Dec 28)
- Re: Spy Agency Mined Vast Data Trove and other tales Leif Ericksen (Dec 29)
- Re: Spy Agency Mined Vast Data Trove Geo. (Dec 28)