December 28, 2005

4th Amendment's a Bitch, Ain't It

by PG

You think it's not involved, and then, damn!

On one hand, this op-ed by lawyers who served in the Reagan and Bush I DOJs is pretty persuasive.

The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions - areas where the Fourth Amendment's warrant requirements are applicable - but to identify and prevent armed attacks on American interests at home and abroad. The attempt, by Democrats and Republicans alike, to dismantle the president's core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.
One the other hand, that seems to ignore that when we're not throwing folks into Gitmo, we are building criminal prosecutions.
Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda. The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.

December 28, 2005 12:51 AM | TrackBack

It seems to me that the Crown might well have labeled the leaders of the American Revolution "terrorists" who were engaging in efforts "to identify and prevent armed attacks on [British] interests."

After Independence, "mere" crime was the last thing on the Framers' minds when they crafted the Fourth Amendment.

Posted by: KipEsquire at December 28, 2005 07:42 AM

Basically they claim that the President can gather information without a warrant because cases like In re Sealed Case say he can, but you don't need to worry about the information being used in criminal trials, even though In re Sealed Case said it can be. Perhaps they should have just banged on the table.

Posted by: Mojo at December 29, 2005 09:35 PM

Oops, make that Truong v US, not In re Sealed Case.

Posted by: Mojo at December 29, 2005 10:23 PM
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