The Specter-Cheney ‘Warrantless Surveillance Bill’ will leave a gaping hole in American civil rights by providing a tissue thin excuse for warrantless surveillance of Americans in America. Anyone who has any dealing with foreigners, as long as the state claims the surveillance is ‘aimed at foreigners’, will now be subject to surveillance at the pleasure of some faceless government employee…”in other words, if you call or do business with someone overseas, the government may be watching you”.
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No warrant? No searchAugust 3rd, 2006 |
 39 comments to No warrant? No search |
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Offhand, I am not really sure where I stand on that. I tend to think that any communication over public (or publicly accessible) channels is open to the public at large (if they have the means to intercept it), and I generally regard anything over the phone, internet, etc as not private and treat it as such. The post, for example, is far from private, (as a colleague found out. When he received a parcel from India the Customs and Excise people were very interested in what was in it).
When you want any communication to be private there are means to do so, (encryption etc) and I am sure that anyone who doesn’t want to be watched, listened to and have his communications intercepted will take all the available precautions. As such the bill is almost redundant. Its like the UK ban on handguns. It only took the guns away from those who aren’t the problem. Anyone who doesn’t want to be watched etc, will make sure that they aren’t. In Europe, and particularly the UK general surveillance of public places is in place (although the recordings do mysteriously dissappear when the police themselves are accused of wrongdoing so it is really not serving the public, is it?). Personally I don’t like it (and I cheer any vandals who would destroy them), but it is a public place and a public place is never private, nor should be regarded as private.
Steven, you are missing the point. It is not the survaillance that is the issue here, it is the idea of warrantless survaillance via a system almost designed for abuse.
Every thing governments do is designed for abuse. I know that anything a government can do (and get away with) they will do. Giving policemen guns means that they will shoot innocent people. That is the nature of the beast. That is the main reason for keeping governments small. Defending against bills like this is almost meaningless because it will change nothing. Whether legal or technical illegal, they will do it. Only getting government small enough so they do not have all the resources to do all that they are tempted to do will have any effect.
Some years ago, here in Germany where I am working at present, there were some reports that the American listening post in Bad Aibling (intended to listen to communications across the iron curtain during the cold war) was also listening to German businesses, in effect industrial espionage. Being an natural sceptic I don’t know whether to believe it, but I can believe that they were likely to be true.
Completely off-topic. Deleted
I don’t buy your slippery slope argument.
I don’t buy your slippery slope argument.
The NSA warrantless listening of conversations between Americans and foreigners was put into place over 30 years ago. They have been judged legal by 3 appellate and one Supreme Court decision. Bush has just continued programs that have been approved by 4 prior presidents. Nothing affecting the freedoms of good guys has ever been established during those 30 years.
I just keep thinking all it takes is for one person to escape our detection system, and 100,000 people die.
So what? I do not doubt it is ‘legal’, that does not mean it is a good idea. As for “I just keep thinking all it takes is for one person to escape our detection system, and 100,000 people die”, well by that logic why not just get rid of the bill of right completely? Your faith in the benevolent intentions of the state is touching but rather misplaced. Remember RICO? It was just going to be used against the mafia, right? Except it is now used against pretty much anyone the government does not like who is ‘organised’. Why bother with rules of evidence and trials when you have the government’s assurances that “you can trust us”, eh?
Since you are using the cliched slippery slope argument, I will use this cliched argument: The Bill of Rights does not require Americans to commit suicide.
So you are arguing that the state can indeed be trusted and it never brings in laws for one stated purpose and then ends up using them for other purposes? Is that really what you are saying? I just want to make sure before I bury you in examples of the slippery slope in action.
Your argument might make some sense if Al Qaeda was the only threat (or even a constant clear and present one, like say the IRA was to the UK for over thirty years), but as quite obviously in the vast overwhelming majority of cases, Americans are more likely to have their rights (and safety) abridged by their own government than Al Qaeda, that is a fairly poor argument.
I am all for security but not at any cost or in any form judged suitable by those in power. To hand them such broad discretion is naivety and foolishness in equal measure. Procedural limits on power are scant enough protection, to remove even those is madness.
I haven’t read the bill. So with that caveat, I’d like to make a general comment and point out that American citizens are the ones who are the beneficiaries of the Bill of Rights … NOBODY else. And I am not interested in giving them those rights if it can in any way infringe on my unalienable rights to life, liberty, etc.
I am concerned about the extension of warrentless searches to Americn citizens but that does not APPEAR to be the case here (and I will take a look at the bill).
Sorry, world, but you have no rights under the US Constitution. You want ’em? Come here and join us. You want to fight us instead and still want to claim rights that we have fought hard to preserve? Go pound sand.
Clearly.
Your comment is completely irrelevant because the whole point of the objection, not just in Samizdata’s article but in the DCdownsizer article linked, is that just phoning outside the USA or having damn near any link to anyone abroad, gives the government the excuse to execute no-warrant surveillance against you AS AN AMERICAN WITHIN THE UNITED STATES.
Ivan,
No, my comment is not “completely irrelevant.” It is relevant as a general point, as I had clearly indicated, that foreigners are not — I repeat NOT — entitled to any protections at all under the US Constitution. This is a axiomatic. It is true. And it ought to be true. The US government has no responsibility to any non-US citizen, and any government official that considers a foreigner’s rights before an American’s will be – and ought to be – keel hauled. That was my point.
That Americans’ rights may be trampled under this bill is a concern of mine, but there seems to be safety measures built in it with Congressional oversight and notification, etc. (se Section 7). My quick overview of the bill shows no great expansion of governmental powers that already exist under FISA. The executive already has the power to listen in – without warrant — on electronic conversations between US citizens and foreigners overseas. Some don’t like this. Some dispute it. You may not like it. But it doesn’t bother me, given its limitations.
Listen, I know the dangers from expanding governmental powers and I am generally cautious in such matters. But I don’t care much about the rights of foreigners and I absolutely don’t want to give any non-US citizen rights under my Constitution. You may think that’s a nice thing to do. I don’t. I think it’s a violation of my country’s sovereignty and is, therefore, reprehensible.
It’s wonderful that you find that it is “clear” that I haven’t read the bill – especially after I had said I did not. Good for you. I’ve now glanced at it. Later I will read more. Can anyone – including you, Ivan – point to me the troubling provisions?
The term is non sequitur. No one here has suggesting the US Bill of Rights applied to people outside the USA, which makes you ongoing comments on the subject rather strange. I just want the Bill of Rights to apply to people in the USA, which is all too often does not. I do not trust the government and do not want ANY expansion of its powers. None whatsoever.
“No one is suggesting that the US Bill of Rights be applied to people outside the USA.” –Ivan
I am not sure you know what a non sequitur is. That is precisely what you are suggesting. By requiring warrants to be issued before “wiretapping” cell phone calls from foreigners (as impractical as that idea is), you are giving them rights under the US Constitution. That you want to give them these rights because YOU think the government may be more likely to overstep its authority under this bill and violate the law by using the results against US citizens is a little extreme and unlikely to garner much popular support in the United States. Americans are generally more jealous of their Constitutional rights than most, but you go a little far.
You are mistaken. They can already wiretap foreigners. What this bill will do is allow them to wiretap US nationals within the US who call overseas and, more importantly, by the broadening of discretion it means that it will be a simple matter to tap the phones of US nationals in the USA who have called overseas with the excuse that they are monitoring people known to call overseas but they are really just ‘waiting for the foreigners’. It is pretty much designed for abuse of the system right from the get-go by allowing surveillance of people with ‘suspicious’ overseas contacts. And as no warrant is required, who decides what is ‘suspicious’? I will give you one guess.
Of course it will “only be used against US Muslims with known Al Qaeda sympathies”. Oh, and I have a bridge in Brooklyn I would like to sell you.
Oh and by the way, I use end-to-end encryption on all my calls to the USA, which of course makes me ‘suspicious’ no doubt 🙂
Perry.
You said,
I am not wrong. I already said FISA allows warrantless wiretaps. Furhtermore, the governemnt already does warrantless wiretapes of outgoing phone calls too. This is lawful. So I think that it is you are wrong here.
What I think this bill does is (1) clarify existing law so the likes of the NY Times stops its hectoring that Bush is violating the law and should be impeached and (2) strengthens Congressional oversight of the process to assure strict adherence to the law. Sounds like checks and balances in action to me.
There’s one born every minute.
I don’t know what that is but I agree … you should be watched.
BTW, which bridge do you want to sell me? Can I choose any one?
What? A legal genius you mean?
No, an idiot who actually trusts the government.
Er … and I hate to ask this … but what is an “asus phreak”?
Remember, this is a family site. (Isn’t it?)
Now that wasn’t very nice. Was it, asus phreak? It seems to be better than what’s there now.
As you don’t even know what end-to-end encryption is, you’ve no chance of figuring out what an asus phreak is, dude. Its a tech thing, you wouldn’t understand.
And just for your info, you don’t have to be a tech genius to make calls that would take the NSA about 600 years to crack. You think the bad guys don’t use VOIP with cheap but nasty crypto? I don’t know who they want to listen in on but it sure ain’t gonna be Osama bin-Shithead.
Asus phreak, you’re a bit of nasty piece of work, but let me concede the point that I am an idiot and the terrorists are not. Still, it seems to this dope that you are using the same logic that causes so many to become paralyzed by inaction: whatever we do, our enemies will figure out a countermeasure, if they haven’t already. That’s a crock, Asus phreak. And it’s also belied by the number of bad guys caught under the existing law by simply listening in on their cell phone conversations. So, don’t give me that silly reasoning. I may buy a bridge from Perry, but I’m not buying that baloney from you.
What I told my Senators:
Bravo Mike. Your sentiments make me proud to be an American if we have people like you among us.
The sky is falling, the sky is falling, the..
Wolf, Wolf, Wolf..
You folks might get your priorities straight:
Tehran, Iran, Aug. 03 – Hard-line Iranian President Mahmoud Ahmadinejad called on Thursday for the “elimination” of Israel.
http://www.iranfocus.com/modules/news/article.php?storyid=8143
World War breaks out and you want to limit the US gov’t ability to collect lawful information.
Dear Droll,
The point of my comment is that it ISN’T lawful information (lawful implies that it is Constitutional). It may be legal information (i.e. okay according to statute, or color of law), but unless those statutes pass constitutional muster, they are not lawful.
I have no problem with the government collecting lawful information: i.e. they must first prove to a judge that both parties in the communication are a threat to the security of the US, and that the substance of the communication is relevant to that threat. Get a warrant. If they can’t prove their case to a judge, then the people they want to spy on must not be a threat.
I approve of spying on enemies to the Constitution (including government officials who violate it). If you can’t prove to a judge that I am an enemy of the Constitution, then you are not spying on me for reasons of national security, so stop it with your bullshit strawmans.
Yeah, what with all those Iranian jets bombing Peoria, lets just declare martial law and get rid of all that pesky constitutional crap.
Nomennovum writes:
foreigners are not — I repeat NOT — entitled to any protections at all under the US Constitution
Can somebody explain why a legally resident non-citizen or even just the CEO of a sports betting company in transit through a US airport should be denied constitutional protections relating to fair trials etc.?
Where oh wehr are the people who love their gummint? Llamas, still like ’em now?
Preamble To the Constitution of the United States of America
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Note the phrase, “We the People of the United States.” So, in the Bill of Rights (the first 10 amendments to the Constitution, when you see the phrase, “The people,” it refers to the people of the United States – i.e. its citizens. For example, the Amendment at issue, which protects against unreasonable searches and seizures, says:
Amendment IV
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.
All of that said, as a legal resident alien, you do have certain rights, including the right not to be searched without a valid warrant. Congratulations, the United States is very generous to its invited guests. Wile you are legally resident here, you are treated as one of the “people of the United States. You are lucky, but, if you are abroad and speaking to someone in the U.S., you do not retain this right, despite your general status as a resident alien when here. So, if you want to continue to be a beneficiary of these rights as a legal resident alien, you had better stay … you know … resident.
So the CEO of BetOnSports.com as an alien in transit through the US (with no residence status) can, according to your interpretation of the constitution, be cruelly and unusually punished?
Nomennovum, you do not seem to be paying attention. The whole point is not that the US state is spying on people overseas, but that this change in the law makes it even easier for the US state to spy on a US person in the US if they call anyone overseas. Please, do not reply with yet ANOTHER length rant over how furreners don’t get the protection of the US constitution because that is NOT what is being discussed here.
What do you think, Resident Alien? Do you believe that I am saying or supporting that the CEO can or should be tortured in the waiting room of British Airways at JFK for smoking in a nonsmoking zone while waiting for a connecting flight between LAX and Heathrow?
You have missed my point, I see. I am talking about FISA and how the US Constitution should not protect people who are not citizens and are not resident in the US. I was making a general point only, not attempting to address each and every silly issue the readers of Samizdata can dream up.
If people want to argue that the US should effectively extend Constitutional protections to non-US resident aliens just in the off chance that some government official may act to ILLEGALLY abuse the rights of a US citizens, they are free to do so. Nevertheless, MY OPINION is that this is an extreme overreaction to a remote possibility, which (if you would bother to read the bill and current FISA law) you would see is — arguably — addressed and protected against.
Nomennovum, it is really simple. You think that the possibility this will be used to abuse the rights of a US citizens is remote, most of the other readers think it is pretty much a certainty. Personally I find your faith in the state naive in the extreme but I think the points you have raised are now asked and answered.
Why do people keep insisting what I say is a non sequitur or that I am not paying attention? If you read each of my posts from the first to the last you will see that what I am saying is that I absolutely see your point that the bill can be seen as putting US citizens at risk of WARRANTLESS SEARCHES – Aretaic, not “spying” in general, which is fine if done Constitutionally. Indeed I have said so explicitly. It is you who has not been paying attention to me. My point has been that this risks – while real – are small and the bill seeks to deal with them. Furthermore, because the bill does not deal with warrantless searches on US citizens, any citizen caught up by an overzealous official exceeding his authority will have recourse to the Fourth Amendment which explicitly grants him protection. The bill – an amendment to FISA – does not, and cannot, override the Constitution.
Sorry; I cannot oblige you here, friend, because it is exactly what I am talking about. If you can engage in “what ifs” and “slippery slopes,” I can engage in “unintended consequences.” Your talking down to me (“furreners”) is noted. If you, like the supercilious asas phreak above, would like to pretend that I am an idiot or a bumkin, you are free to do so. I am sure it makes you feel superior and allows you to believe you’ve won a debating point somehow.
Perry,
I agree. I am repeating myself. However, some here do not seem to see my point, or think the point is irrelevant, or a non sequitur, or too redneck.
Nonetheless, I will say nothing more about it — but I will say this, if you knew me, you would know I am anything but naive. I thought I was fairly libertarian until I came here and got a little taste of the true believer treatement. Call me a Jacksonian, then, with a dose of “pragmatic libertarianism” thrown in (too small a dose of libertarianism it seems).
Nomennovum, you think you are a libertarian? You think the state needs more power and you think you are a libertarian in any shape or form? Remarkable.
Also, this site is often attacked by other libertarian sites for being hawkish and pragmatic on defence issues and in favor of robust action against the Islamists.
Funny, the monitoring of overseas communications has been an ongoing tradition during wartime since the founding of the USofA. It is those who are ignorant of history who think that this is new or a “slippery slope” or “unprecidented”.
I have personally read letters from family over in England during WWII to my grandmother in Virginia. As well as some of the letters sent by my grandmother to England during that war.
Guess what? EVERY ONE of those letters was opened and stampmed “Passed” by US military censors.
Several of the letters had sections razor bladed out to prevent the apparently sensitive communication from someone living the US from reaching a relative living in an Allied country.
The HORROR!
In addition, every single phone call and telegram was likewise monitored.
If anything, we live in a much more privacy ensured world than in past conflicts.