Why Bush Violated the Fourth Amendment, and Obama Has Not

[Galraedia]

There is a crucial difference between the Obama administration’s phone call data-mining program, which is constitutional under current law, and the Bush administration’s NSA surveillance program, which was clearly unconstitutional. Unlike the Obama program, which is limited to obtaining information about phone calls made and received from telephone companies, the Bush program authorized the government to wiretap private phone conversations. From a constitutional perspective, the difference is critical, and it is unfortunate that President Obama has not done a better job of explaining the distinction, and why his administration’s program does not violate the constitutional “right of privacy.”

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Supreme Court has held that, at least presumptively, a search is “unreasonable” unless it is based on probable cause and a judicial warrant.

It would therefore seem that it violates the Fourth Amendment for the government to collect phone call records from phone companies without first obtaining a judicial warrant based on a finding that there is probable cause to believe that the individual whose call records the government want to examine has committed a crime. This would be true, for example, if the government wanted to open that individual’s mail or search his home or wiretap his phone calls, so why isn’t it true in this situation as well?

The puzzle turns on the meaning of the word “search.” The Fourth Amendment does not protect a general right of privacy, but only a right not to have the government unreasonably search an individual’s person, house, papers, or effects. But what is a “search”?

Read more: http://www.thedailybeast.com/articles/2013/07/01/why-bush-violated-the-fourth-amendment-and-obama-has-not.html

[leeroysphitz]

1. Mmm... Pretzels. n/t

[dkf]

2. Semantic games. Too bad they don't understand concepts.

It would take a constitutional law professor to make it all "legal". What a misuse of an education.

[The Magistrate]

6. It Is You, Ma'am, Who Does Not Understand The Concepts

Of course, making the effort to understand things would divert precious energy from the shit-stirring routine.

[dkf]

7. There is no way the people who wrote our amendments would agree with this.

And you know it.

[KittyWampus]

9. it's the job of the people who write amendments to make this illegal. (Congress)

And you know it.

Especially since the SCOTUS has proven happy to give it all an eager rubber stamp.

[dkf]

11. How can you fix it if you don't know what they are doing and how they are justifying it.

That is exactly the reason they are keeping it secret so we cannot fix it.

And how much more evidence do we need that they are lying to Congress and have little intention of being completely truthful.

[Journeyman]

16. "If we could first know where we are, and whither we are tending. . .

"If we would first know where we are, and whither we are tending, we could better judge what to do, and how to do it."

~ Mr. Abraham Lincoln
The House Divided, June 1858

[KittyWampus]

20. I think they keep it secret cause it's easier to shove billions of dollars into it.

So my advice is to primarily attack it from the angle of money.

[The Magistrate]

10. They Passed The Alien And Sedition Act, Ma'am

They jailed newspaper editors when they did not horsewhip them in the streets for insolence. Eighteenth century gentlemen were hard men indeed....

And of course, we could start compiling lists of all the things we now full well they would not have supported, including men without property voting, the Bill of Rights applying to state governments, the idea that flogging and hanging were cruel and unusual punishments, and the list could, quite literally, go on and on and on....

[silvershadow]

3. This is not correct. No matter how you slice it, we are living in a post-Constiutional world. nt

[Progressive dog]

19. First Scotus ruling on right to privacy in constitution was 1965

so all these Constitutional scholars missed it for over 170 years. This is not a post Constitutional world, this is a world in which we have more meaningful rights in the USA than we have ever had.

[silvershadow]

21. Is that when they approved a secret body of law? So secret that even Congress doesn't know about

it? It doesn't take a "constitutional scholar" read the plain language of the document and interpret it. There are a lot of folks who have fought for what they believe the words of that document to mean as it applies to their own lives- gay and lesbian persons, for example. I don't happen to know too many of that community who are constitutional scholars, yet they are making progress every day. As to your 1965 comment, I do not know that to be true, but if it is, maybe it took that long for the government to over-reach? Don't know. I just know that the document provides nothing about secret law, secret courts or any such. In fact, I think it is pretty clear on its' face that the document places the entire onus on the people, through their congress-critters. Sorry, not sure what you're trying to sell??

[rsmith6621]

4. FRANKLY

Anything that has a hint of BUSH flavor that Obama has continued I despise including the resigning of the Patriot Act.

Obama could stop this and give us some of our liberty's back.

I am sorry I will not apologize for Obama.

[usGovOwesUs3Trillion]

5. These professional lefties tried real hard to convince us to follow w

Sorry, but I ain't buying it.

[Waiting For Everyman]

8. What is being done today even violates the Patriot Act, as written.

That is according to James Sensenbrenner, who is the author of it.

So no, it is not legal. It is being kept hidden by classification, but it's very doubtful that will last much longer.

Rep. Jim Sensenbrenner (R-Wis.), the Republican author of the Patriot Act, sent a letter to Attorney General Eric Holder, saying he is “extremely disturbed” by the NSA reports, and insisting it violates the law.
...
“I do not believe the released FISA order is consistent with the requirement of the Patriot Act,” Sensenbrenner wrote. “How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?”

http://www.democraticunderground.com/10023141615
http://www.politico.com/gallery/2013/06/pols-pundits-weigh-in-on-nsa-report/001082-015269.html

[Gravitycollapse]

12. The difference is incidental, not fundamental.

Nice try though.

[Thinkingabout]

13. What do you want here, to have Obama enforce issues you want and forget about the others.

We don't like in a Piccadilly world, it has to be all.

[99Forever]

14. Bullshit.

Both Bush and Obama violated the 4th Amendment. Obama continues to do so.

[loyalsister]

15. The concepts outlined in the Bill Of Rights are subject to interpretation

I find it difficult to imagine that the founders conceived of a US population of 300 + million. And a world of over 1 billion with the level of interconnectedness we have.

Or that they could begin to consider how many 1000s of ways constitution could be interpreted and reinterpreted.
I suspect that the idea that world wide communication systems could be hijacked and used to plan terrorist acts would have been mind numbing, as still is for some people now.
Did they imagine a world where one would consider the possibility that money itself would be considered free speech?
Not to mention what understanding the SC has come up with regarding the 2nd Amendment.

I see so many arguments about what the founders intended with a total disregard for the context of the modern world. It seems to me that it has been a struggle to manage to interpret it in ways that suit the modern world (whenever that may be). It's like other absolutist beliefs, it is ripe for angry division and abandonment of practical intellectual flexibility.

[TheKentuckian]

17. There is no modern world/"could not have imagined" exception what you want is an amendment

Except you don't you want a free wheeling license to do what you or your favored politicians want to without reprucussions or brakes on your/their roll.

Notice how if we need or want something we have to go through every hoop, seldom is there reinerpretation or adjustment made for current day realities but if the wealthy and powerful desire a thing we can reinterpret or even work up legislation that provides retroactive immunity.

[BenzoDia]

18. Smith v Maryland is all she wrote. Current programs may be terrible laws but are constitutional.

Focus should turn towards getting rid of the Patriot Act and revising FISA laws.