Obama, FISA, and the Dawn of the Post-Netroots Era

You want to listen to a conversation, get a warrant.  FISA allows you to do that after the fact.  What it DOESN'T allow you to do is listen to everyone, and pick some as targets later

Speculation. Mr Rider does not know that "everyone" is being listened to.

The Fourth 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."

As with the other amendments, there is a fair amount of ambiguity here. The courts have repatedly ruled that not all "seaches" even require a warrent.

As I pointed out, the passionate defense here of the Second Amendment is contrasted by the apathy about the Fourth.  Are there really  "conservatives" who pick and choose which liberties they will defend?

If I were to take the same attitude about the Second as you do about the Fourth, I'd be demanding a right to have my own Abrams tank.

I appreciate your candor, and your service.  I come from three generations of career military officers, all conservative Republicans, and I served one tour stateside in the Navy during the war in Vietnam.  I agree that freedom isn't free, but I was actually seeking more of a legal perspective on the topic. 

I think it is safe to say that we are all patriots and conservatives here, and I'm confounded when fellow conservatives who have an opportunity to create a teachable moment make a conscious choice to opine rather than to instruct.  The use of all caps indicates a certain level of frustration with a genuine curiosity on my part to learn more.

I don't know about others, but for me this amendment is controversial because I find it challenging to easily read and understand the Constitution and the Bill of Rights in and of themselves, nevermind actually applying them to real world events.  I did find this text to be more illuminating than "The Fourth Amendment is one sentence, and it says what it says.":

The Fourth Amendment: Unreasonable Searches and Seizures

"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 Fourth Amendment protection against "unreasonable searches and seizures" was adopted as a protection against the widespread invasions of privacy experienced by American colonists at the hands of the British Government. So-called "writs of assistance" gave royal officers broad discretion to conduct searches of the homes of private citizens, primarily as a way of discovering violations of strict British customs laws. This practice led to a unique awareness among our Founding Fathers of the threat to individual liberty and privacy that is created by unchecked government search powers.

Today, the Fourth Amendment has lost its preferred status among our cherished Bill of Rights Protections. In recent decades, growing concerns regarding crime and public safety in America have forced our Courts to balance the privacy rights contained in the Constitution with the ever-expanding needs of law-enforcement officers whose duty it is to investigate and arrest dangerous criminals. The Supreme Court's rulings in Fourth Amendment cases demonstrate the challenge involved in reconciling these competing ideals.

Ultimately, the Constitution's prohibition against unreasonable searches and seizures has been trimmed-down in recent years and tailored to suit the needs of modern law enforcement as we wage war against drugs and terrorism. For this reason, it is important for conscientious citizens to be familiar with the lawful parameters of police authority to conduct searches, as well as the legal doctrines by which that authority is limited.

My understanding of the Foreign Intelligence Surveillance Act, or FISA, is this:

The program seeks to monitor phone calls involving one participant within the United States and one outside the country who is suspected of having terrorist links. The 1978 Foreign Intelligence Surveillance Act requires a warrant for anyone to wiretap phone calls within the United States, but the administration said it is within legal boundaries to monitor international calls whether or not they involved one party on U.S. soil.

Back in 2006, this statement was put out by the White House:

White House spokeswoman Dana Perino said the four main points in the new legislation are significant: The bill would recognize the president's constitutional authority to collect intelligence on foreign powers; it would give the attorney general new tools to consolidate a number of lawsuits challenging the program; it would give the president the option to send challenges to the FISA court; and it would generally modernize FISA.

Alberto Gonzales then said the following:

"This is a complicated statute dealing with complicated technology, and we'll have to see how the legislative process moves forward." Gonzales said. "This is a new kind of war and there are now new kinds of technologies, and the president has to be able to make use of new technologies."

Pressed regarding the surveillance program's constitutionality, Gonzales said: "I am confident of the constitutionality of everything we do as an administration."

The plan then received "skeptical" approval from the Democrats - several of whom had actually been informed of the plan since its inception, and then came out against it publicly when it was leaked.  Then the ACLU followed up with:

"The 'review' contained in the bill is nothing more than a sham. The president could still choose to ignore the optional court oversight on the program. This new bill would codify the notion that the president is not bound by the laws passed by Congress or the Constitution. It would reward his abuse of power," ACLU Executive Director Anthony Romero said in a written statement.

So it does seem to be a bit more complicated than you assert in your "one sentence" sentence.  Doesn't the President have special powers during a time of war?  And as members of the Armed Services, is it not incumbent upon us to support the Commander-in-Chief as opposed to accusing him of treasonous abuse of power and retroactively punishing the telecommunications providers who simply did what they were asked to do by the Commander-in-Chief as their duty to assist in protecting national security?  Have any illegal searches or seizures been conducted in the course of this program?  And wouldn't a public trial reveal more confidential sources and methods that need to remain secret? 

Sun Tzu wrote this thousands of years ago, and I agree with it today:

It cost the people and government a lot of money every day to maintain a strong army.

Daily life disrupted and many citizens and families will be affected.

Foreknowledge enables a wise ruler and good commander to be victorious, and produce useful achievements for the people.

Foreknowledge cannot be obtained through spirits, supernatural, nor superstitious means. It cannot be projected through effort, nor verified through measurements.

They can only be obtained from those who have a thorough knowledge of the enemy's conditions.

Since good intelligence preserves the lives of both the army and the civilian population, I am for it.  Since the Supreme Court has seen fit to interpret the 4th Amendment as constitutional in law and drug enforcement cases and no one has effectively explained to me exactly why FISA violates the 4th Amendment, or who has been harmed or will be harmed by this policy except those who wish to harm us, my acceptance of it has not been effectively altered. 

As for firearms killing more people than terrorists, in 2001, according to the NTSB, 42,116 people died in car accidents, compared to 15,517 murders (by all possible methods, not merely by firearms).  While this is fascinating, and I could use the statistic to indicate that driving my car is more risky to me than Islamic Fundamentalism in my daily life, it still doesn't contribute to my perception of FISA as an atrocity.

I also find the "they hate us for our freedom, so let's give up some of it" argument to be misleading in terms of being willing to pay an appropriate "price of doing business".  I voluntarily gave up some of my freedom when I chose to get married, and I have many benefits that accrue from it.  That's the price of doing business.  I voluntarily voted in an election for the Commander-in-Chief, and I have had many benefits accrue from that as well - including the fact that my country hasn't been attacked since September 11, 2001. 

Where it stands at the moment, we could simply agree to disagree without seeking to denigrate each others' patriotism or conservatism.  I'm quite secure regarding mine, thanks.