Monday, February 06, 2006

War Powers Hearings: Turning into a Propaganda Rally

Leahy asks what specific language in the AUMF addresses wiretaps.

Gonzales refers back to the Hamdi decision, making an end around argument that the court said Congress had authorized the President to hold a U.S. citizen as an enemy combatant. And what's a little wiretapping compared to tossing somebody in jail?

Leahy tries to get a yes/no answer as to whether the AUMF allows the executive branch to open mail.

He doesn’t get a yes/no answer, and makes note of the fact he hasn't.


Orrin Hatch (R-Utah) steps up to the plate. He starts out citing case law that has upheld executive authority to engage in warrantless searches.

Gonzales says yes, warrantless searches as consistent with the Fourth Amendment are allowed.

Warrantless searches consistent with the Fourth Amendment?
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. 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.

Are they ever going to get to where Gonzales explains how a warrantless search can be consistent with this Amendment?

Hatch is in the bag. He's doing nothing more than feeding Gonzales straight lines, citing constitutional executive powers that don't appear in the Constitution and authorities granted by the AUMF that the AUMF doesn't mention.


Kennedy's been talking for about five minutes now. I'm still not sure what he's getting at.

Kennedy's time is up. Gonzales doesn't seem to be sure what he's getting at either, and I don't blame him.


They argue over whether to take a break. They take one.


"Pom Pom" Jeff Sessions outside the chambers on CSPAN. Today, there are 3,000 Americans who have no civil rights because they were killed on 9/11. He trots out a relative of a 9/11 victim (Debra Burlingame) who wants the spying program to continue.

I’m frankly shocked that C-SPAN would air this kind of unpaid staged political event.

Now they're giving Sessions exclusive time to push the propaganda.

Leahy had something to say, but they cut him off.

Incredible. Is there any journalistic integrity left in the broadcast media?


Chuck Grassley (R-Iowa) takes the megaphone. Have they caught the guy who leaked the program yet? All this hoopla over spying is the media's fault. If the administration has done something wrong, it's Congress's fault for allowing it to happen. If the New York Times hadn't broken the story, nobody in Congress would have had a problem with any of the domestic spying. Of course none of this is Grassley's fault because he wasn't privy to all the White House briefings.

9/11… 9/11… 9/11… Madrid, London, Bali…

The President's determined not to let this happen again. The NSA program is a matter of life or death for Americans.

This hearing is turning into the worst political joke I've heard in over a decade.


Joe Biden (D-Deleware) takes the stage. Here's hoping he's more coherent than he was during the Alito hearings.

He asks how we'll know the war on terror is over.

Gonzales says when al Qaeda is destroyed, certainly not today.

Biden points out there is no way to clearly define the end of the war.

Okay, out come the six shooters. Gonzales just challenged Biden (and Congress) to go right ahead and pass laws that limit the President's powers.

That's the real hole card in this particular poker game. The admin's daring Congress to limit its power, knowing they're afraid of who will take the blame if another 9/11 style attack takes place afterwards.

Three strikes, Biden's out. He didn't even manage to foul one off.


  1. Actually, warrantless searches have long been held to be consistent with the fourth amendment. IF you break the amendment down:

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,"

    So what it is protecting against is the right to be free of UNREASONABLE searches and seizures. The Courts have said that this is the hallmark of the fourth amendment - reasonableness. The amendment goes on to say:

    "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."

    Note that it doesn't say you need a warrant in order for a search to be reasonable. What the Courts have made of this wording is that "reasonableness" generally means you have to have a warrant, but that the amendment doesn't absolutely require one in all cases (and on the face of it, I'm inclined to agree). Thus, you get things like Terry searches, etc. where exigencies exist and the Courts have long held the government doesn't need a warrant.

    The inquiry here shouldn't be whether the 4th amendment ALWAYS requires a warrant (it doesn't, according to Supreme Court cases), but whether it requires one in this particular case.

    I think the answer is yes, it does, because none of the traditional exigent circumstances that allow the government to act outside of the warrant requirement can reasonably be said to exist when the government has a 72 hour period after the search to retroactively obtain a warrant. If those circumstances don't exist, then you fall back to the general rule that a "reasonable" search means a warranted search.

    That's how I look at it.

  2. Yeah, that's the argument, Scott, but why bring up warrants in the amendment if they're not vital to ensuring a search is reasonable?

    If I undestand you correctly, we're talking about a whole long history of what makes a search "reasonable" without a warrant. In many cases, the fairness and sense of the law is clear. If the policeman at the door hears someone inside cry for help, etc...

    The problem, as I see it now, is if this or any other hearing will be able to determine a similar line of legal reasoning with the NSA program.

    Sorry that wasn't a little clearer, I'm multitasking right now with this and the hearings.


  3. Jeff:

    Yes, exactly. Exigent circumstances, and other cases have held that it might be reasonable in some instances to search without a warrant. Your example of a policeman hearing a cry for help from inside a house is a perfect example - even without a warrant, circumstances make it "reasonable" for him to search without a warrant. But the general rule remains that a warrant is necessary for a search to be reasonable.

    The exceptions are found in the language of the amendment. Courts tend historically to look at every phrase, every comma, and they operate under the assumption that each word, each point of punctuation, was chosen with careful thought by the legislature or framers (if you've ever watched the legislature in action you know this isn't true). That is viewed as the courts proper role when it comes to interpreting written law.

    The argument is, if the Framers had wanted every search to require an warrant, they could easily have written "no searches shall be conducted without a warrant..." Since they didn't write that, they must have meant something short of it.

    Anyway, if you ever read materials on judicial interpretation of written law you'll find just exactly how much difference a comma can make (there have literally been cases that turned on whether the legislature used a comma or not).

    But in this case, the reasons for circumventing the warrant requirement simply do not exist. My view is the warrantless searches are unconstitutional, and will remain unconstitutional even if Congress authorizes them, because Congress is also boundby the 4th amendment. But I suspect if Congress authorizes them the courts will grant a good deal of deference.

  4. I hear you about commas. How much have they been analyzed in debate over the second amendment?

  5. Have you heard about the novel, "After 9/11: A Korean Girl's Sexual Journey?"

    I strongly believe that you will have something to say about it, and especially about Chapter 43, "9/11s are forgiveness," which makes "9/11" a general noun for the worst disaster that could happen in one's life. I have never seen any writer put it this way.

    It is a very interesting book. If you want a closer look at this book, visit the author at

    Best Wishes,

  6. As always, Scott brings up some gold, on this case raegarding previously upheld warrantless searches upon exigent circumstances.

    However the malAdministration is not arguing the "exigent circumstances" case. Instead they are arguing they have the right to wiretap (i.e. electronic eavesdropping as a simulacrum for search and seizure) anyone, anywhere, anytime in the expectation that:

    1) It is too tedious to apply for a warrant from the FISA court within the 72 hour grace period. (Note in passing: the FISA court has refused or modified FOUR (4) warrant aplications in over 2,000 in the last 4 years.) That sounds to me like getting a post-facto FISA warrant is a rubber stamp deal.

    2) The Administration is saying they cannot effectively monitor the unrevealed number of communications from the unrevealed number of "persons" they are surveilling without irreparably harming said investigations by revealing sources, methods, and content to the rubber stamp FISA court.

    Call me old-fashioned, but it sounds to me that they're really talking about electronic communications they KNOW the FISA court would never approve.

  7. Lurch:

    You are exactly right. FISA is virtually a rubber stamp, and none of the admin's arguments as to why they shouldn't have to go to FISA hold water. In practice, FISA looks to me like a bare minimum of oversight, and the admin doesn't even want to allow that much. It's nuts. I don't think getting retroactive warrant from FISA is overly burdensome to the government. Not by a long shot.