Tying our hands in the War on Terror
By Jeff Emanuel Posted in Featured Stories | National Security — Comments (12) / Email this page » / Leave a comment »
An apt cartoon from a less-than-conservative newspaper. However, to really show how drastically our hands are being tied in the current battle for Western survival, the figurative President in this sketch would need several more gloves -- including (and especially) one labeled "World Opinion."
You're giving Constitutional rights to foreign terrorists.
How long until we can no longer detain combatants for the duration of the conflict, because of the habeas corpus requirement?
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
Neil,
It is not about terrorists having rights, it's about following the law and observing the constitutional rights of Americans.
This has been discussed elsewhere.
If an American invites a foreigner to their home, do they lose the right to not have their home searched without a warrant? If a judge says defends that American's right against unreasonable search and seizure, would that be extending 4th amendment rights to terrorists? That just doesn't make sense, and I don't think talking about it like that does much beyond function as a sound bite.
I see the concern. If we ask for warrants, we defend the rights of an American who may also be talking to a terrorist. But with any suspicion the wiretap can be initiated instantly and a warrant obtained days after the fact. What kind of "protections" does this give terrorists beyond the semantic complaint of them also getting American rights? We don't slow the investigation down or not listen to the terrorist or stop hunting them, we don't treat terrorists like Americans in any literal material sense.
As for the rest of your comment, I think that is a slippery slope argument, but I am open to an elaboration if you want to offer one.
Your comparison is invalid. International telephone calls with known foreign endpoints aren't at all comparable with inviting that same terrorist into one's home.
And you're darn right it's a slippery slope argument. The left has argued for years that "American history has been about the expansion of rights," no?
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
Neil, I think you missed the sense in which it is valid that I was talking about. They both are constitutional rights guaranteed to all Americans. An American does not lose their right to be proctected against unreasonable search and seizure just because a suspected terrorist comes into play. Similarly, an American does not lose their constitutional right to privacy because a suspected terrorist might be on the other line of a phone conversation. In each case the law must be followed and warrants pursued.
Again, that doesn't give terrorists any rights in anything save a semantic sense.
In regard to your closing sentence, the relevance of a slippery slope would depend heavily on whether terrorists were given rights in the first place, which they aren't. And if they were given rights, it does not logically follow that thier new rights would validate any slippery slope arguments.
that the 'constitutional rights' described by Judge Taylor were invented by her for partisan reasons - badly miscalculated ones, as it happens, that will cost her party votes.
She declared that the right to free speech entails a right that there shall be no consequences of what you say. This is akin to saying that no confession evidence can ever be used in court because otherwise people would fear to confess to crimes.
She also declared that the rights of criminal procedure will also apply to intelligence gathering. Rights of criminal procedure do not apply in any other context. If they did it would be illegal for a police officer to shoot a suspect who is in the process of committing a violent crime because that person has not actually been convicted. This is plainly absurd. The operational rules for the prevention of crime have always been different to those which apply to criminal procedures, which are, after all, only brought into play once the suspect has been apprehended.
Quentin Langley
Editor of http://www.quentinlangley.net
I can't help myself when anyone uses "framing" in a non-ironic way.
"When immediate action is necessary, moreover, it is possible -- within the confines of FISA -- to act immediately, provided that judicial review is sought within three days."
That is no help at all, since the standard which must be met is the same regardless of when the judge gets to look at it. And that standard is that we must already know that the person on the phone is a criminal before we listen in.
The whole wiretapping business was conceived to begin with as a way to collect further evidence on people we already had convincing reason to believe were criminals, as a prelude to taking criminal action. It also assumed completely different technology than we are dealing with here.
The NSA program has nothing to do with this. So far nobody has been charged with anything under it and nobody is going to be. It's purpose is to gather intelligence about pending terrorist plans.
We grant a great deal of latitude to law enforecement's investigative techniques in order to prevent and respond to criminal activity. Highway patrolmen have the right to pull over suspicious vehicles and search them if they have a reasonable justification. We seem to be perfectly comfortable with this level of policement on our own citizens. Why can't we be just as reasonable when it comes to the protection from foreign criminals?
Cole,
I agree with you about being reasonable when fighting terrorists. It's a solid point. But I am not sure that your comment contradicts what I am saying. FISA seems to allow for a good deal of reasonable common sense, while still giving teeth to the Constitutional rights of Americans. I think the wiretapping case was about, if anything, defending that balance of good sense.
If you're tapping Hassan's phone in Chicago, you need a warrant. Period. I don't even like the FISA allowance to wait up to three days, but it is the law and the courts have upheld it.
If you're tapping Usama's home line in Waziristan and an American calls it (or he calls an American), you need no warrant. The Constitution does not extend beyond the borders of the United States and its territories. If you make an international call, be prepared for it to be tapped. Don't like it? Tough. We cannot enforce our Constitution in other countries, just as they cannot enforce their laws here. Sound convenient? It is! But if we're tapping a phone in Indonesia, we shouldn't just stop listening just because an American is on the other end of the line.
Just as if you give a confession in a French police investigation it can be used here even though you did not have our Constitution protecting you, if you make an international call, our Constitution does not protect you from a foreign wire tap.
Tapping in the US? Warrant.
Tapping in Afghanistan? No warrant.
"In matters of style, swim with the current; in matters of principle, stand like a rock."
--Thomas Jefferson
>>If you're tapping Hassan's phone in Chicago, you need a warrant. Period.
That may be what you wish the law said, but it doesn't. Never has. Criminal investigations and intelligence gathering are different things. Every President since Lincoln has recognised this, it only became controversial in the past couple of years.
Quentin Langley
Editor of http://www.quentinlangley.net
That cartoon has an unfair and innacurate portrayal of what is going on. We can still wiretap terrorists, we just need a warrant.
And, getting a warrant does not tie our hands, because we can still immediately wiretap terrorists and get the warrant later, up to 3 days after the fact.
Quote:
"When immediate action is necessary, moreover, it is possible -- within the confines of FISA -- to act immediately, provided that judicial review is sought within three days."
Our hands are not being "drastically tied."
No, I am not a conservative, and yes I have read that users have to follow the intent and spirit of the rules at RedState. But I'm not here to insult or flame, just here to offer facts I can back up.