More on So Much for Law and the Constitution

[David Farber <dave () farber net>]

Begin forwarded message:

From: Chip Bayers <chip () bayers com>
Date: December 19, 2005 11:19:23 PM EST
To: dave () farber net
Subject: Re: [IP] More on So Much for Law and the Constitution

Dave, Josh Marshall has posted some pretty convincing speculation on  
his blog about what, exactly, the Administration is up to here, based  
on Senator Rockerfeller's comments about his conversations with them.  
If it's true, it sounds like it's Carnivore, or Son of Carnivore. Key  
paragraphs from an email to Marshall:

"I suspect that others have noticed an odd element in Sen.  
Rockefeller's letter. He takes pains to point out that he is neither  
a lawyer nor a technical specialist - presumably, the latter  
referring to the technology being proposed for the non-FISA wiretaps  
that the Administration has put into place. And, he complains that he  
needs the help of staff to make sense of what he was briefed on.

"It's an odd comment, if all that was sought by Cheney was the  
ability to look, prospectively, at telephone or computer  
communications. Where's the technical novelty? and for that matter,  
the law isn't that complex. You might expect Rockefeller to say, I  
disagree, but he wouldn't stress the need for staff help in order to  
review complex new issues of law and technology.

"But it fits together if what was being proposed was to look, either  
prosepectively or retrospectively, at everyone's E-mail -- which the  
NSA is reportedly capable of -- and then filter it for certain key  
words. Presumably, those messages which meet certain search criteria  
would then be culled for further study, or longer-term monitoring  
might be done of both the sender and recipient.

"That sort of dizzying effort would raise both technical and legal  
issues, such as: what technical capabilities and safeguards are  
possible to implement; what is the legality of read-and-discard  
searches, and so on. Indeed, since I believe that retrospective  
searches could be done, the Administration might be seeking to look  
at all prior communications as well, once a hit was found. No FISA  
authorization would be possible, since this sort of activity was not  
contemplated by that law."

http://www.talkingpointsmemo.com/archives/007286.php


> Begin forwarded message:
>
> From: "David P. Reed" <dpreed () reed com>
> Date: December 18, 2005 4:42:00 PM EST
> To: dave () farber net
> Cc: ip () v2 listbox com, "Marc D'Angelis" <mcdangelis () gmail com>
> Subject: Re: [IP] More on So Much for Law and the Constitution
>
> I'm puzzled by your comment, Marc.   Are you saying that the  
> government lawyers presume that everyone being searched and whose  
> property is being seized is a terrorist or would-be-terrorist?
>
> I don't think the government lawyers are *stupid* enough to think  
> that everyone whose home or office is invaded without a warrant  
> would not be an innocent citizen or visitor, who would not seek  
> recourse.
>
> IMPO, it's now impeachment time - unless, of course, you think that  
> if they make a mistake, they will just "disappear" the innocent  
> civilian, so they can't complain...
>
> There aren't higher crimes and misdemeanors than pre-Patriot Act  
> warrantless searches and seizures, or the assertion by the  
> executive that he will defy the expiration of the Patriot Act  
> provisions, which were not clearly Constitutional in the first place.
>
> > Begin forwarded message:
> >
> > From: "Marc D'Angelis" <mcdangelis () gmail com>
> > Date: December 17, 2005 11:24:10 PM EST
> > To: dave () farber net
> > Subject: More on So Much for Law and the Constitution
> >
> > It is actually a fairly simple matter to understand the thinking of
> > government lawyers that would go into the calculation of the legal
> > status of interceptions of private conversations in the pursuit of
> > defense against terrorism. It would likely follow these lines.  What
> > follows is not necessarily my thinking, but rather the "devil's
> > advocate" view of the likely thinking of those who, right now,  
> > provide
> > legal advice to those who serve us in Washington.
> >
> > First, the operative constitutional language is this, from the 4th
> > Amendment:
> >
> > "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."
> >
> > The amendment prohibits "unreasonable searches and seizures". This is
> > very broad and flexible language, and it is intended to be so. The
> > definition of "reasonable" is - has to be - considered in light of  
> > the
> > purpose of the search and the evil to be avoided.
> >
> > We of course have developed customs and expectations, and legal
> > requirements based on them. One of them is addressed in the  
> > amendment:
> > the issuance of a warrant, that is, advance approval by a judge of  
> > the
> > proposed search before it is carried out. But the amendment does not
> > *require* a warrant in each and every situation. Our legal system
> > requires a warrant (absent recognized exceptions) in the criminal
> > context. It is our expectation that warrant will be sought,  
> > because that
> > is what we have become accustomed to, in the context of criminal
> > investigations.
> >
> > But these customs and expectations do not necessarily fully apply in
> > other contexts, including military actions and threats to national
> > security. Both of these are extraordinary rather than ordinary
> > situations, and the "normal" rules may not be considered to apply.
> >
> > Second, give consideration to the risk and possible consequences of
> > governmental behavior that is either illegal or arguably. Why don't
> > police officers simply break into the homes of suspects and seize
> > evidence of crimes they might find? There are two possible reasons.
> > First, if the government sought to introduce the evidence in a  
> > criminal
> > prosecution, the evidence would be prohibited if the court found  
> > that it
> > was seized without proper consideration of 4th Amendment protections,
> > without a warrant. Second, the aggrieved citizen could file a civil
> > lawsuit under the 1867 Civil Rights Act, 42 USC 1983, which  
> > provides for
> > an award of money damages in the event of a violation of a citizen's
> > civil rights.
> >
> > But terrorists and their cohorts, or people who might be  
> > terrorists and
> > their cohorts, are not being investigated for criminal  
> > prosecution, and
> > many of them are unlikely to try to use the American civil justice
> > system to seek money damages. Therefore, the only two negative
> > consequences that our legal system provides against a particular  
> > illegal
> > "search or seizure" are of little or no moment to the people who are
> > affected by these investigative efforts.
> >
> > Thus, the government lawyer could conclude that it is well worth the
> > risk to use questionable or quasi-illegal methods to obtain  
> > information
> > about terrorist activities, without worrying too much about such
> > niceties as judges, warrants, or probable cause standards.
> >
> >
> > -------------------------------------
> > You are subscribed as dpreed () reed com
> > To manage your subscription, go to
> >  http://v2.listbox.com/member/?listname=ip
> >
> > Archives at: http://www.interesting-people.org/archives/ 
> > interesting-people/
>
>
>
> -------------------------------------
> You are subscribed as chip () bayers com
> To manage your subscription, go to
>  http://v2.listbox.com/member/?listname=ip
>
> Archives at: http://www.interesting-people.org/archives/interesting- 
> people/




-------------------------------------
You are subscribed as lists-ip () insecure org
To manage your subscription, go to
 http://v2.listbox.com/member/?listname=ip

Archives at: http://www.interesting-people.org/archives/interesting-people/