Judge Rules Parts Of Patriot Act Unconstitutional

[Sueven]

OK, clearly nobody actually read the judge's order. I'll try to summarize it briefly.

This was a forward-looking judgment for redress of an ongoing injury, and was not directed at the searches that did occur. This means, Midnyte, that nobody ruled that the fingerprints didn't constitute probable cause. Obviously the negligence of the United States government in railroading all evidence that they weren't a match is problematic, but that particular incident is NOT at issue here.

Here's the situation.

The basic 4th amendment setup is as follows:

The 4th amendment protects against unreasonable searches and seizures. It is settled constitutional law that a search is per se unreasonable without a warrant (unless it fits into one of a few narrow exceptions). The 4th amendment also requires that warrants shall not be issued without probable cause. So, probable cause --> warrant --> valid search. If either probable cause or the warrant is absent, the search is missing. This framework is designed to deal with domestic criminal law enforcement, and what constitutes probable cause is affected by this context. If you're searching for a person, you need probable cause to believe that the person is in the location being searched (and also probable cause that the person committed the crime in question, which must be established in order to procure the arrest warrant in the first place), if you're searching for contraband or evidence of a crime, you need probable cause that the evidence exists and is in the location being searched, etc.

This framework becomes kind of cumbersome when you move outside the domestic criminal context, and is fairly inappropriate for foreign intelligence gathering. Warrants are generally fairly limited, allowing you only to search for specified people or things in specified locations, and the public nature of the warrant application process makes them inappropriate for ongoing intelligence gathering. Thus, when it became necessary to engage in foreign intelligence gathering in a domestic context (ie, spying on spies, putting foreign agents under surveillance, etc), FISA was enacted. FISA establishes a secret court, made up of federal judges, empowered to grant warrants for intelligence gathering purposes when requested by high-level executive department officials. These warrants are not operating in a domestic criminal context, and so the requirements for obtaining them are different. Prior to enactment of the Patriot Act, two things were necessary for issuance of the warrant: First, the government had to stipulate that the person being searched was an agent of a foreign government or foreign power (including terrorist groups). Second, the government had to assert that the primary purpose of the surveillance was foreign intelligence gathering. The Patriot Act made only a minimal change. Instead of asserting that the primary purpose of the surveillance is gathering foreign intelligence, the government must now assert only that a "substantial" or "significant" (I forget which language is used) purpose is foreign intelligence.

This seemingly minor change makes a pretty big difference. The assertion that the person under surveillance is a foreign agent is reviewed by the courts on a 'clearly erroneous' standard, which functionally means no review. Because of the nature of the warrant application process, the person being searched has no ability to represent himself and refute the claim that he is a foreign agent, and these courts have no real fact-finding ability beyond simply listening to what the government tells them. The facts of the case at question here demonstrate how lax the 'clearly erroneous' standard is, as there's no evidence whatsoever of ties between the man and any foreign government (he didn't even do international travel). The assertion that a significant purpose of the surveillance is foreign intelligence is unreviewable.

So: If the government is interested in performing activity, directed against U.S. citizens, that would otherwise be considered unreasonable and thus unconstitutional under the 4th amendment, but does not have probable cause to do so, they can nevertheless obtain a warrant so long as they make two assertions, one of which is functionally unreviewable, and the other of which is doctrinally unreviewable. This is a facially obvious violation of the probable cause requirement.

As I see it, the only decent argument against this ruling is as follows: The only change between pre-Patriot act FISA and post-Patriot act FISA is that the government must now make a slightly less stringent unreviewable assertion. However, since the assertion was not reviewable in the first place, this change is functionally immaterial, and thus if pre-Patriot FISA was constitutionally acceptable, then post-Patriot FISA must be constitutionally acceptable as well.

The counter to this is that, if the executive branch is lying when they claim that their primary purpose is intelligence gathering, this is fairly easy to prove. It's much more difficult to demonstrate that they were lying when they say that a 'significant' purpose of the activity was intelligence gathering, especially because (since it's an unreviewable assertion) they're the ones who get to define what 'significant' means in the first place.

[Midnyte_Ragebringer]

This means, Midnyte, that nobody ruled that the fingerprints didn't constitute probable cause. .

Yeah...and? I never said they did. You really should read before you make such grand assumptions. I hope you don't do that in court when you get there.

Context Sueven.....context.

Not everything is fucking black and white man. You seem to have a big problem with context.

[Aslanna]

I think you accidently hit PM instead of Reply so I'll try fixing that for you:

Subject: Judge Rules Parts Of Patriot Act Unconstitutional

And when it comes to douchebag mindless things to say Midnyte knows what he's talking about...

I like how he seems to be buying into this administration's agenda of fear. Where they can get mindless citizens to accept whatever they say as long as it's for the "War on Terror". And before you say it's worth it if it saves even one life from a terrorist attack just stop to think about how many died to grant you the rights and protections you now have no problem pissing away.

You're a troll. It would be one thing if you actually believed what you typed. It would be my pleasure to engage you in conversation. You just say shit to get a response. Have a nice day.

Thanks. I had a fabulous day. How was yours?

[Spang]

Was I right about what a stink knuckle was?

[Midnyte_Ragebringer]

Was I right about what a stink knuckle was?

A stink knuckle is a disgusting term used to describe a pooooosay!

[Nick]

Midnyte stop being such a dumb son of a bitch.

[Midnyte_Ragebringer]

Midnyte stop being such a dumb son of a bitch.

No way dude. Then that would mean I'd have to read books and watch the news and stuff like that. Yucky.

[Siji]

Did you know that 4 out of 5 dentists like turtles? But turtles don't have fingers, so they can't have stinknuckles.. but imagine if they could. Would they run around all day long in glee shouting, "Martha gave me stinknuckles! Come smell my finger!" One must seriously ponder the possibility. Go ahead and take a minute, I'll wait.

Pretty cool huh?