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  #31  
Old 12-27-2005, 04:32 PM
elwoodblues elwoodblues is offline
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Default Re: Short-term-results-oriented thinking

Incidentally, I thought this law review article was interesting (quick blurb quoted below).
<u>THE FUSS OVER TWO SMALL WORDS: THE UNCONSTITUTIONALITY OF THE USA PATRIOT ACT AMENDMENTS TO FISA UNDER THE FOURTH AMENDMENT</u> 71 GWLR 291


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The above quotes embody the convergence of two basic values of our American society: national security [FN3] and individual liberties. The government has a duty to defend our nation against foreign threats. [FN4] In doing so, however, the government must respect our constitutional right to be free from unreasonable government intrusion. [FN5] In 1978, Congress enacted the Foreign Intelligence Surveillance Act [FN6] ("FISA") in an effort to reconcile these conflicting but complimentary values in the area of foreign intelligence. [FN7] Composed of specific standards that permit lawful wiretaps where the government seeks to obtain foreign intelligence information, FISA provides a check to the President's asserted authority to conduct warrantless electronic surveillances on the grounds of national security. [FN8] In the end, FISA appropriately balanced the executive's intelligence needs in defending our nation with its obligation to uphold constitutional freedoms.
The intricate balance came with a cost. FISA achieved constitutional and political equilibrium by enabling the executive to conduct electronic surveillances without having to meet the traditional probable cause requirement for criminal investigations. [FN9] Although the fruits of a FISA surveillance may lead to criminal prosecution, FISA simply requires probable cause to believe that the target of the electronic surveillance is a foreign agent and the targeted facility is, or is about to be, used by a foreign agent. [FN10] This relaxed probable cause standard adequately reflects the nature and severity of the foreign threat at issue and the difficulty in obtaining information associated with such a threat.
Conversely, this relaxed probable cause standard is applied only where "the" purpose of the surveillance is to gather foreign intelligence. [FN11] Codified in FISA, this requirement was integral to the law's constitutionality by providing a nexus between the national security interest and the intrusion imposed on the individual. Thus, the foreign intelligence purpose requirement ensured that the relaxed probable cause standard of FISA applied only to *293 situations genuinely involving national security from foreign threats. [FN12] Courts deemed this FISA prerequisite fulfilled so long as the primary purpose of the surveillance was to gather foreign intelligence. [FN13] The role of the foreign intelligence purpose standard in protecting Fourth Amendment guarantees and bringing FISA within that amendment's constitutional dimensions cannot be overlooked. Indeed, judicial reliance of and executive adherence to the foreign intelligence purpose standard, before and after its codification, is indicative of its significance in allowing FISA to effectively balance the interests of both the government and individual citizens. [FN14]
Almost a quarter-century after the enactment of FISA the United States became victim to the most devastating foreign attack in its history. On September 11, 2001, over 3,000 people perished and thousands more were injured at the hands of a sophisticated foreign terrorist organization. [FN15] In the wake of this tragedy, the government's pressing interest became the ability to fight an unprecedented threat undeterred by old laws and strengthened by advancements in technology. As a result, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism Act of 2001 [FN16] ("USA PATRIOT Act") to strengthen the federal government's ability to carry out this objective. [FN17] It provided sweeping new powers to both domestic law enforcement and intelligence agencies to fight terrorism. [FN18] In the process, however, it altered many procedural guarantees vital to our personal freedoms and eliminated much of the checks and balances that previously gave courts the opportunity to ensure that criminal investigatory powers were not abused. Moreover, the large and complex body of law was passed hastily without the use of traditional legislative procedures in light of the immediate threat of terrorism that continued *294 to exist after the attacks and the overwhelming public outcry for effective security. [FN19]
One of the subtle yet far-reaching changes made by the USA PATRIOT Act is the foreign intelligence purpose standard of FISA. Under section 218 of the USA PATRIOT Act, a FISA warrant may now be issued so long as "a significant" purpose of the electronic surveillance is to gather foreign intelligence. The fuss over two small words cannot be larger in consequence. A warrant to conduct an electronic surveillance can now be issued under FISA's relaxed probable cause requirement so long as an ancillary foreign intelligence purpose exists, thereby enabling the government to illegitimately circumvent the normal probable cause requirement in a criminal investigation. In disregarding the nexus required between the national security interest and the intrusion upon the individual to make the search reasonable, this new standard wholly ignores the individual interests that necessitate the protections of the Fourth Amendment. In the end, the new standard serves as an invitation for any proclivity that law enforcement authorities may have in abusing its surveillance authority under the guise of national security while diminishing the judiciary's role in safeguarding personal rights against unreasonable law enforcement activity. As a result, the technical modification to FISA fails to provide an appropriate balance between the government's interest in national security and an individual's Fourth Amendment rights.

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  #32  
Old 12-28-2005, 10:56 AM
ACPlayer ACPlayer is offline
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Default Re: Short-term-results-oriented thinking

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The fact we are having this discussion in a thread about a ficticious story is what really frightens me.

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That is just nuts. I had many a good discussion about many fictitious story - ever attend a book club meeting?. If it is fiction, then the discussion is meaningless. If it is true then the discussion is frightening.
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  #33  
Old 12-28-2005, 11:22 AM
Exsubmariner Exsubmariner is offline
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Default Re: Short-term-results-oriented thinking

Frighten is a bad word. I only used it because it was used before. The word is more aptly disturbed. I find it disturbing due to the fact that this ficticious story was picked up by an ever so eager political machine whose only obejective, it seems, is to discredit and disrupt the Executive Administration that is in place. The fact that this story originated with a professor taking the word of his student at face value is even more illustrative in my mind.

So what you have here is a professor who is eager to find evidence his student's rights are being violated calling up some journalist who is eager to publish a story about someones rights being violated which is picked up by the leftist internet propaganda squad who is oh so eager to pass it along so that it may be posted in politics forums like this one all over the place.

What's more, people bought it. What's more than that is that there are posts in this thread that say something to the effect that even though the kid changed his story and recanted tearfully saying he was sorry it still must be true and he must have changed his story because he got another visit.

Is this the future of American politics? One side in power is constantly derided by made up propaganda from the other sides media machine? It's true of both parties. It can only serve to paralyze the government and make it more ineffective and wasteful than it already is.

Non producers want to be owners. Non producers ends are served best when the government is ineffective and cannot protect the owners or producers.

Lenin was a law clerk. Stalin was a priest. Hitler was an artist. Goebbels was a journalist. So was Mussolini. Do the math.....That is, since we are talking fiction here.
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  #34  
Old 12-28-2005, 01:49 PM
vulturesrow vulturesrow is offline
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Default Re: Short-term-results-oriented thinking

[ QUOTE ]
Something doesn't have to be unconstitutional to be bad policy. Something doesn't have to technically violate the constitution to be violative of the principles behind the constitution.

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Except very few people are arguing those particular points. Most of the critcism's I have read regarding the Patriot Act consist of vague platitudes about the Constitution being trampled on, accompanied by some vigorous hand waving when pressed for specifics.
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  #35  
Old 12-28-2005, 02:26 PM
elwoodblues elwoodblues is offline
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Default Re: Short-term-results-oriented thinking

[ QUOTE ]

Something doesn't have to be unconstitutional to be bad policy. Something doesn't have to technically violate the constitution to be violative of the principles behind the constitution.
[ QUOTE ]
Except very few people are arguing those particular points. Most of the critcism's I have read regarding the Patriot Act consist of vague platitudes about the Constitution being trampled on

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Go back and read the thread. Nobody mentioned the Constitution until you brought it up. You brought up and argument nobody was making, then tried to refute the argument. Weak.

Incidentally, many people who say that the USA PATRIOT act is trampling on the Constitution mean exactly what I said in the quote referenced above, i.e. that it violates the fundamental principles of the Constitution.
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  #36  
Old 12-28-2005, 02:32 PM
vulturesrow vulturesrow is offline
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Default Re: Short-term-results-oriented thinking

[ QUOTE ]
Go back and read the thread. Nobody mentioned the Constitution until you brought it up. You brought up and argument nobody was making, then tried to refute the argument. Weak

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Go back and read my post. I said that I have asked that in past. That said, lets be realistic here and admit that the Patriot Act is often mentioned and at least implied in discussions of this sort. I mentioned it because Submariner mentioned it in one of his posts.

[ QUOTE ]
Incidentally, many people who say that the USA PATRIOT act is trampling on the Constitution mean exactly what I said in the quote referenced above, i.e. that it violates the fundamental principles of the Constitution.

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Im still waiting for someone to tell me which fundamental principles and how they are being violated.
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  #37  
Old 12-28-2005, 02:42 PM
elwoodblues elwoodblues is offline
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Default Re: Short-term-results-oriented thinking

How about the fundamental principle set forth in the fourth amendment of the constitution:
[ QUOTE ]
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.

[/ QUOTE ]

Warrantless searches under FISA and the extension of those searches under the USA PATRIOT act run counter to the long-held principle that warrants (based on probable cause) are required.

Tracking library loans and other actions taken under the USA PATRIOT act violate this same principle.

The general principle is that you have the right to be left alone unless the government has probable cause to snoop (sorry about all the complex legalese [img]/images/graemlins/wink.gif[/img]
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  #38  
Old 12-28-2005, 03:04 PM
vulturesrow vulturesrow is offline
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Default Re: Short-term-results-oriented thinking

[ QUOTE ]
Warrantless searches under FISA and the extension of those searches under the USA PATRIOT act run counter to the long-held principle that warrants (based on probable cause) are required.


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Section 213, delayed notification? A power that has been granted to investigators now for decades and has been validated by the Supreme Court.

[ QUOTE ]
Tracking library loans and other actions taken under the USA PATRIOT act violate this same principle.


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Probably a reference to Section 215? Criminal investigators have always had been allowed access to 3rd party disclosures without needing a warrant or probable cause.

[ QUOTE ]
The general principle is that you have the right to be left alone unless the government has probable cause to snoop (sorry about all the complex legalese

[/ QUOTE ]

Generally speaking, as a conservative, I generally agree with this. I just dont think that the Patriot Act violates those principles. And thanks for keeping the language, we conservatives have enough trouble with that as it is. [img]/images/graemlins/grin.gif[/img]

All that said, my real gripe with people attacking the Patriot Act, is more of an irritation with their almost pathological inability to provide any details. I think your post is by far the best Ive seen in response to my challenge. Guess this means you are my monkey! [img]/images/graemlins/cool.gif[/img]
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  #39  
Old 12-28-2005, 07:32 PM
ACPlayer ACPlayer is offline
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Default Re: Short-term-results-oriented thinking

[ QUOTE ]
Is this the future of American politics?

[/ QUOTE ]

This is just politics. I refer you to:

Willie Horton, Daisy child from the past for derision of the other side based on innuendo, extensions, propaganda. I refer you to plenty on this forum who throw around liberal, america hater, fascist bushie's etc.

To cut through the propogand you look at the story -- that is your hand at the moment. Look at the game conditions, the political and legislative environment, and make a guess as to the value of the hand.

To assess the value of this story, without apriori knowledge of whether the student is lying or not, I refer you to Cyrus' excellent hand/table analysis of this story in this thread.
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  #40  
Old 12-29-2005, 10:42 AM
Exsubmariner Exsubmariner is offline
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Default Re: Short-term-results-oriented thinking

Well, AC, I see your point. There is no credibility to be lost with the opposition, since there was none to begin with and the true believers in the cause are going to beleive everything no matter what. Just more spinning wheels trying to desparately get tracktion whereever they can.
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