Transterrestrial Musings

Comments

I was with you up til the Walt Anderson part. Who? The space guy? Isn't he being held for tax-evasion? Or is it another Walt Anderson?

Tob

Posted by Toby928 at December 21, 2005 10:43 AM

"If the President can tap anyone's US-overseas calls without judicial review and use the evidence against them, that suspends the Fourth amendment protections on unreasonable searches."

In a time of war, Article II of the Constution gives the President broad war powers. The courts have consistently held that the President has the power to survey and eavsedrop on foreign transmission in the defense of national security. A resonable man would assume that also includes one party located inside the United States.

If a fifth columnist was initating a code transmission to Germany circa 1944, would Roosevelt hve been required to obtain a warrant?

Posted by Mike Puckett at December 21, 2005 10:44 AM

Mike: Habeus corpus has been suspended in war time before, yes. Are we proud of Japanese internment in Manzanar? In world war 2, millions died. In the war on terror, thousands have died. Is the war on terror a hot war that justifies any means? Let's continue to argue whether the suspension is justified. It may well be justified now. I prefer that habeus corpus be reinstated.

Toby: Background on Walt Anderson http://www.justiceforwalt.com/index.html

Posted by Sam Dinkin at December 21, 2005 11:14 AM

"He has been deemed a "flight risk" because he has certain controversial books in his collection that makes prosecutors uncomfortable - books that many other Americans - Americans who've never been accused of a crime or are even contemplating one - may also have on their shelves." Hmmm. Is that why they are holding him or is it because they think he is a flight risk and used the books, apparently books about creating or obtaining false id, as indicators of his ability or intent to flee. Interesting. I assume these books were found in his possession but I may have inferred incorrectly. Very strange but not unheard of for the government to want to hold someone who they allege has large hidden resources available to pay back taxes owed or to use to escape justice, books or no books. I can't say that it seem very precedential or that its that interesting to me but I may read further. Thanks for the info.

Tob

Posted by Toby928 at December 21, 2005 11:26 AM

"In a time of war" is a weighty statement. When the President deploys troops, a war is not necessarily taking place. Just because the cliched terms "War on Terror" are used every day does not a war make.

The executive's war powers described in the Constitution were intended as a result of a war being declared by Congress. No such declaration has been issued against Iraq or the vague network of terrorists known as al Qaeda. Since WWII, Congress has instead authorized the President to wage war, something not provided for in the Consistution, though it was codified by the War Powers Act of 1973 (and often ignored by the president since).

In any event, we cannot suspend American principles in an effort to wage war. To do so erodes our mandate for protecting those things we hold in highest regard. How can we tout the nobility of democratic values for Iraq and elsewhere when the President can authorize electronic monitoring of Americans without a warrant? How can we do the same when we torture so-called enemy combatants, effectively throwing out the Geneva Convention?

Should the President have broad powers to wage a declared war? Yes. Absolutely. Indeed, we should execute war with extreme prejudice in such an event. In exceptional cases, I would say the President should even suspend the Constitution, as President Lincoln did during the Civil War at one point, arguing that without a country, the Constitution is meaningless. But this battle against terrorists is not a crises of that magnitude. Could it be? Sure. But it isn't yet.

To avoid it becoming so, we need preventative tactics, and I'm a firm believer that smart intelligence (particularly via HUMINT) and smart diplomacy (very much a lost art in modern America) will solve our problems much more so than a $400 billion annual budget for destroying and killing things.

Posted by Phil Smith at December 21, 2005 11:53 AM

"The executive's war powers described in the Constitution were intended as a result of a war being declared by Congress"

Only 5 times in american history has war been declared, Military force has been used over 100. There is no such limitation as you are ascribing above.

"Mike: Habeus corpus has been suspended in war time before, yes. Are we proud of Japanese internment in Manzanar? In world war 2, millions died. In the war on terror, thousands have died. Is the war on terror a hot war that justifies any means? Let's continue to argue whether the suspension is justified. It may well be justified now. I prefer that habeus corpus be reinstated."

Strawman

I am arguing the constituional and stautory authority for the president to conduct national security related wiretaps, I never mentioned Habeus Corpus or 'Bring me the body'. You seem to be throwing many things against the wall with your original topic hoping something will stick. I prefer to stick with and argue one point.

Posted by Mike Puckett at December 21, 2005 12:02 PM

Actually, the Congress has declared war 11 times, the last time with Romania in 1942 I believe.

The limitation is very clear and stated in Article I, Section 8, Paragraph 10 - Congress has the sole power to declare war. Article II, Section 2 establishes the President as Commander in Chief - according to many scholars this means he or she can order the military to battle only if Congress declares war. In practice, of course, this has not always occured.

Naturally, politics is very different from law, ans one can find experts and scholars to promote any and all variations on a theme.

Posted by Phil Smith at December 21, 2005 12:15 PM

"according to many scholars this means he or she can order the military to battle only if Congress declares war."

Not to jump into this fight but even Congress doesn't believe that, hence the 'War Powers Act' which no executive branch official has ever recognized although they do comply with it without acquiesing. Mind games sometimes but thats politics. The real kind.

Tob

Posted by at December 21, 2005 12:31 PM

oops, that was me obviously.

Tob

Posted by Toby928 at December 21, 2005 12:32 PM

No court has ever held that article II section 2 to be limited by the lack of an actual war declaration.

"Actually, the Congress has declared war 11 times, the last time with Romania in 1942 I believe."

And that would be as an adjunct to the declaration against the other Axis powers. Still WWII.

The way you are counting is misleading because it basically lists each declaration against an axis power as a seperate event. Perhaps it would be better to say there were five declared wars.

Posted by Mike Puckett at December 21, 2005 12:33 PM

There is no prescribed method in the Constitution for Congress to declare war. Arguably, the resolution in the fall of '02 was functionally equivalent to a declaration of war against Hussein's regime. In any event, whether Congress formally declares war or not, it became clear to most people that we were in one on September 11, 2001.

Posted by Rand Simberg at December 21, 2005 12:41 PM

If the President can search my library book record, that nu llifies the first amendment right to freedom of the press as surely as staking out people's bedrooms nu llifies their right to privacy.

No, I don't see that at all. Freedom of the press is the freedom to disseminate information (e.g., in printed form). Looking at what you read is entirely different, and, if anything, would be covered under privacy, not 1A.

[Rand--why is the word nu ll blocked as questionable content?]

Posted by Rick C at December 21, 2005 01:08 PM

"I am arguing the constituional and stautory authority for the president to conduct national security related wiretaps, I never mentioned Habeus Corpus or 'Bring me the body'."

I don't have the Con Law training to tell you if the President has the power to make wiretaps during war time, don't know what uses he can put them to, and don't know if we are in a sufficient state of war to know if his powers apply. That is, I don't disagree with you.

It seems to me the kind of fishing expedition the fourth amendment was designed to stop, but after 200 years of evolution, events and technology, I certainly would not be surprised if a majority of Congress and the President and the Supreme Court all felt differently. Regardless, I just don't want him to do unchecked wire taps and think the country would be better off without them during peace or war.

Sorry about the mixup with the body.

Posted by Sam Dinkin at December 21, 2005 01:17 PM

The 4 th also specifies a prohibition against unreasonable searches and seizures thus leaving open the ability to conduct reasonable ones.

I would argue those relating to internal fifth column activites and external activites in support of the former by individuals, groups and powers comitted to hostile activities against the nation constitute reasonable searches.

Posted by Mike Puckett at December 21, 2005 01:24 PM

"Freedom of the press is the freedom to disseminate information (e.g., in printed form). Looking at what you read is entirely different, and, if anything, would be covered under privacy, not 1A."

If everyone who reads my manifesto is arrested, 1A is completely useless. Whether it's a privacy penumbra or a 1A penumbra, both or neither, it is not appropriate to hold someone based on what books they read at the library. Arresting all the readers is censorship the hard way. Kind of like the plot of the movie Serenity.

Should books bear Miranda warnings?

Posted by Sam Dinkin at December 21, 2005 01:27 PM

n any event, whether Congress formally declares war or not, it became clear to most people that we were in one on September 11, 2001.

I agree we are 'at war'. But the point is, I think, what kind of war we are engaged in?

Previous wars required suspension of civil liberties for a short duration, after which they were restored. The problem with the current WOT is that it's not going to end for a very long time - we're talking decades at best. The state is under attack but is not threatened. Jihadis may murder us by the thousands but they are not going to march on the capital.

I submit that revoking habeous several years is odious, but needful on occasion. Doing so for decades, when the state is under attack but not in peril ... is harder to justify.

Posted by Brian at December 21, 2005 01:29 PM

I was being too technical in my previous post. Eleven formal declarations of war were filed, but five declared wars is of course accurate.

Also, the comment that Congress and the President haven't taken the War Powers Act seriously is right, as I pointed out. In fact, the act is largely irrelevent these days.

Posted by Phil Smith at December 21, 2005 01:32 PM

Reasonable searches are not necessarily desirable searches. Reasonable searches may still need a warrant if Congress says so. If we are almost exclusively netting innocents and their privacy is only slightly invaded, if the court quickly approves nearly all tap requests, there is very little benefit to weigh against very little cost--for now. Unchecked executive power in all forms should have a strong presumption against. There is a lack of demonstrated substantial benefit to the extra few hours in the rare circumstance where a roving wiretap warrant has not already been granted for the suspect. I conclude the wiretaps are insufficiently productive to be desirable.

Posted by Sam Dinkin at December 21, 2005 01:41 PM

The War Powers Act is less than irrelevent, no president has every recognized its legality. That's why, weirdly, they obey it. No president will tolerate Congress poaching on it A2 powers as CINC. So far, its never been taken to court as the situation has never been onerous for the executive and anything taken to the SC is a crap-shoot. Hence, its obeyed even if sneered at and denounced by each president in turn, just to keep the seeming acquesance from becoming law through practice. Odd but true.

Tob

PS Can you tell the WPA is a buggaboo with me ;-)
I'll get off my soapbox now.

Posted by Toby928 at December 21, 2005 01:48 PM

I would argue Brian's point about being under attack but not "in peril". We can't think about this non-linear war in the same way as one with a real army.

We are still very much in peril but in a non-obvious way. There aren't invading armies on our beaches, but what about other means? Besides the physical devastation and death toll, imagine the effect on our country if al Qaeda managed to sneak just two or three nukes into NY, DC, or LA. Our government would be crippled and our economy could well collapse.

I consider that "peril" and would hope the President's aggresively montioring any suspected communication with a known enemy. They don't play by the rules and we are unfortunately going to have to get our hands dirty to defeat them. We're at war, it just doesn't seem enough like one.

If anything, New Orleans should illustrate the point. A few well-placed catastrophes could turn us into a third-world country.

Posted by Patrick at December 21, 2005 02:05 PM

It seems to me the kind of fishing expedition the fourth amendment was designed to stop

The intent of the Fourth Amendment is to protect people against (literally) unwarranted prying by the state for the purpose of gathering evidence for criminal cases. It wasn't meant to privilege communications between people at war with us.

As a justice once wrote, the Constitution is not a suicide pact.

Posted by Rand Simberg at December 21, 2005 02:23 PM

What is it with all this talk about libraries, anyhow? The passage in question talks aobut business records, which the American Library Association intepreted to include library records. Why? Considering it's a far Leftist organization, they like to be considered victims and martyrs for the cause of liberty without actually having to do anything dangerous. So jumping on the bandwagon is a cheap and easy way to get a little face time.

Until you can cite one, just one, case of library records being sought, I suggest you just drop that whole line. It really does make you look like a useful idiot in the true spirit in which that term was coined.

Posted by Raoul Ortega at December 21, 2005 02:57 PM

Congress did not declare war. They permitted the president to act under the War Powers Act. It's not the same thing at all.

Posted by Bernard W Joseph at December 21, 2005 02:59 PM

I've thought about that, actually. By 'in peril' I meant occupation by a foreign power and dissolution of the government. Think the South after Appomattox, Germany after WW II, total defeat and an occupying army.

A few well-placed catastrophes could turn us into a third-world country.

Spare me the theatrics. Our government is more - far more - than crats living in D.C., LA or New York. The single most important government organization is your town or county, followed by your state. D.C. is nuked? A horrible awful thing. But it won't cripple the government.

Simplying greatly - if both Houses are in session and vaporized - elect more of them. They are not an irreplacable hereditary class. They're us.

The economy . . . you have a point. 'Collapse' would seem to be an extreme reaction, however, and we'll only get to third world status if the foundation of our society (belief in rule of law and the individual) goes down the tubes.

Posted by Brian at December 21, 2005 03:00 PM

"we'll only get to third world status if the foundation of our society (belief in rule of law and the individual) goes down the tubes"

Brian, I think the LLL are working on that. :-(

Posted by Barbara Skolaut at December 21, 2005 08:21 PM

"Until you can cite one, just one, case of library records being sought, I suggest you just drop that whole line."

In practice, I agree with you. In theory, the law says that they don't have to report their intrusion so there might be some without any reports. I want a constitution and laws that don't have a liberty leak that can some day get out of hand (like drug seizures that go directly to law enforcement without a trial and interdiction of funds for legal defense, or mass pardons--income tax may be one that got away). The books in Walt's house seem to be a critical element of the case to hold him without bail.

In sum, we have a very rich society with very cheap, effective intelligence gathering methods. We don't need to torture, hold people incognito, take on embarrassing powers, and tap citizens to win this. We can and should try to win this war in a peace-time legal mode just like for most of the Cold War. In Athens, when they elected a dictator, it was for a set period of time.

"[The 4 th amendment] wasn't meant to privilege communications between people at war with us." If you can tell me who the enemy is in this war, I'll agree that there should be no restrictions. Unfortunately the enemy isn't following the Geneva convention and using insignia. Very few courts would reject a request for a roving wire tap on all calls to and from known enemy combatants, even what passes for one these days in the administration like Hamedi or Padilla. A massive drag net of all cellular traffic from 200 miles off of the US coast, satellite traffic, and international phone traffic would probably be prone to abuse. Surely it is in Congress's power to set the standard and the court to monitor it. Non-parametric, executive monitored limits like "no more than 500 at a time" don't work when the executive taps the phones at the UN (if Clare Short is to be believed) and other high value, but clearly not direct enemy intelligence gathering targets (or even go back to Watergate). I want someone not reporting to the president in the loop.

At bottom, we have had very few deaths from terrorism and islamic warfare. It is therefore reasonable and desirable to revoke unusual powers. We could get a lot more utility out of compulsory flu shots or laws requiring every library to have a defibrillator than our current security strategy if we are intent on trading a little liberty for some safety.

Posted by Sam Dinkin at December 21, 2005 10:52 PM

"At bottom, we have had very few deaths from terrorism and islamic warfare. It is therefore reasonable and desirable to revoke unusual powers."

Suppose the reason we have not had the deaths is because of those "unusual powers"? I can neither prove nor disprove it, but it is likely that increased intelligence helped. In 50 years we may find out.

Posted by Catch22 at December 21, 2005 11:51 PM

Back a bit, I wouldn't use your only source of information on Walt Anderson as a website titled "justiceforwalt." There may be a bit of bias in such a source.

Posted by Tom at December 22, 2005 05:54 AM

We don't need to torture, hold people incognito, take on embarrassing powers, and tap citizens to win this.

Yes, we can probably ulitmately win without doing those things. But the cost in innocent lives may end up being much higher, perhaps by orders of magnitude, if we completely abstain from them.

Posted by Rand Simberg at December 22, 2005 06:08 AM

Ortega wrote:
"Until you can cite one, just one, case of library records being sought, I suggest you just drop that whole line. It really does make you look like a useful idiot in the true spirit in which that term was coined."

The Washington Post
November 6, 2005 Sunday
SECTION: A Section; A01

HEADLINE: The FBI's Secret Scrutiny;
In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans
BYLINE: Barton Gellman

The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said.

Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. But the vendors of the software he operates said their databases can reveal the Web sites that visitors browse, the e-mail accounts they open and the books they borrow.

Christian refused to hand over those records, and his employer, Library Connection Inc., filed suit for the right to protest the FBI demand in public. The Washington Post established their identities -- still under seal in the U.S. Court of Appeals for the 2nd Circuit -- by comparing unsealed portions of the file with public records and information gleaned from people who had no knowledge of the FBI demand.

The Connecticut case affords a rare glimpse of an exponentially growing practice of domestic surveillance under the USA Patriot Act, which marked its fourth anniversary on Oct. 26. "National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.

[remainder snipped]

So you're wrong.

Posted by Dan Kay at December 22, 2005 07:15 AM

Someone wrote:
"We don't need to torture, hold people incognito, take on embarrassing powers, and tap citizens to win this.

Simberg replied:
"Yes, we can probably ulitmately win without doing those things. But the cost in innocent lives may end up being much higher, perhaps by orders of magnitude, if we completely abstain from them."

Which is a great argument for a strong central government able to monitor its citizens, hold people incognito, and torture.

Except that I don't trust my government, no matter who is in power.

Why is it acceptable for a government to monitor my phone without a warrant or hold me in jail without charging me, but somehow unacceptable for them to seize my home under eminent domain so that they can turn the property over to a wealthy developer?

Posted by Dan Kay at December 22, 2005 07:23 AM

My guess is that they are trumpeting all their successes foiling bad guys. Some of the ops could have been stopped through traditional means. Some could not have, but may have closed vulnerabilities, led to other arrests or stiffened our resolve. If you like liberty and innocent until proven guilty, there is a continual cost in blood to take the first hit from the bad guys when odious methods might have worked better at preventing them. I argue that the cost is low because the moral superiority saves lives and the odious methods have dubious efficacy. I also argue that it is worth paying if it is 1,000 people a year when 3,000,000 people or more a year are dying of natural causes. We can buy those lives back cheaply with defibrillators, flu shots or a hundred other ways than giving up our liberty. Over the last 50 years, how many have died of terrorism on US soil? Take seriously the threat of nuclear terror and purposely released avian flu, but we are probably expending too many resources and inconveniences on airport security and ITAR for non-nuclear and biological technologies--the death toll relaxing these restrictions might cause is too low to forgo the freedoms.

Posted by Sam Dinkin at December 22, 2005 09:11 AM

'I wouldn't use your only source of information on Walt Anderson as a website titled "justiceforwalt."'
Do your own primary research on the indictment here:

http://www.justiceforwalt.com/Records/031031_GJ_Indictment.pdf

Walt is likely a tax cheat a flight risk. He is not a great poster child for rights. But if you wait for the perfect case to fight back, you may pay a price orders of magnitude higher in liberty. He could be an early domino.

Posted by at December 22, 2005 09:15 AM

"the cost in innocent lives may end up being much higher, perhaps by orders of magnitude, if we completely abstain from [torture, holding people incognito, taking on embarrassing powers, and tapping citizens]"

Millions versus thousands would get my attention. Thousands versus tens would not. I am not advocating not doing these things, just to do them according to the will of Congress and after obtaining a warrant from the judiciary. Use these as "checked and balanced" powers. Check and balance the power to wire tap citizens, to hold people without charge, to aggressively question, to not treat unlawful enemy combatants according to the Geneva Convention, to operate secret off shore prisons, to utilize contractors with poor accountability, to set up tip lines, to bar people from flying and so on. Like just about every power granted in the Constitution.

The war requires that we keep our own moral fortitude intact. We need to espouse a creditable philosophy, not just discredit the enemy's philosophy.

Posted by Sam Dinkin at December 22, 2005 09:25 AM

"Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. But the vendors of the software he operates said their databases can reveal the Web sites that visitors browse, the e-mail accounts they open and the books they borrow."

Sounds like an Al Quedia operative was using a public library computer as an electronic drop point.

If so, the inestigations was a very valid one.

Posted by Mike Puckett at December 22, 2005 09:56 AM

I don't think it's acceptable for them to do it to you. But I have no problem with them doing it to members of Al Qaeda.

You don't trust them to know the difference? Ultimately, me neither, which is why I'd like to get this war better defined, and won, as soon as possible. But we can't simply pretend that we're not at war.

Posted by Rand Simberg at December 22, 2005 01:28 PM

I should add that I've got a follow-up post here.

Posted by Rand Simberg at December 22, 2005 01:30 PM

Puckett wrote:
"Sounds like an Al Quedia operative was using a public library computer as an electronic drop point.
If so, the inestigations was a very valid one."

First of all, that wasn't the issue. Ortega claimed that the USA Patriot Act has not been used to obtain library records. That is false. It has. (He also made the absurd claim that the American Library Association is a "far Leftist organization," which sounds rather odd. Librarians are not exactly known for being revolutionaries. Even if true, it's irrelevant. Aren't left-wingers allowed an opinion too?)

But as for your comment, I would ask you this: doesn't it bother you just a little bit that the FBI can request _all_ the records in order to search for evildoers? It doesn't exactly seem like a targeted search, does it? Seems more like a fishing expedition.

Furthermore, as the New York Times reported this week, the FBI has been conducting surveillance and intelligence-gathering operations against PETA, Greenpeace, and even a "Vegan Community Project." Vegetarians are a national security threat? How do we know that the FBI wasn't seeking those library records to investigate the actions of animal rights activists or vegetarians? We don't.

Do you trust your government? Or is it okay for them to trample on the rights of American citizens as long as they are people you disagree with?

Posted by Dan Kay at December 23, 2005 07:36 AM

I don't trust the government but it is important to realize that terrorists - or at least the smart ones - don't go around with signs on their shirts saying "We're terrorist scum". They don't look like anyone but .. well .. just a bunch of fellas you know?

Would they seek fellow travellers among the groups you noted? Maybe - you take those groups at face value (and if you're from a foreign culture lacking the ability to pick the BS from the PR) and they sure seem like they - or some of their members - might indeed have sympathy for your cause.

Not advocating paranoia, just recognition of the facts on the ground.

Posted by Brian at December 24, 2005 09:01 PM

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