Allahpundit wrote: “The Democrats are against warrantless wiretaps, not all wiretaps. It’s deliberately misleading.”

No. It is not.

What is misleading is the Democrat’s claim that warrants are needed to collect foreign intelligence, even if inside of the United States. At least 7 US Supreme Court opinions state that a search warrant IS NOT NECESSARY if the goal it to obtain foreign intelligence.

Here they are, listed in no particular order:

Katz v. United States, 389 U.S. 347 (1967).

“Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.”

[Justice White concurring]:
“In joining the Court’s opinion, I note the Court’s acknowledgment that there are circumstances in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today’s decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents.”

United States v. United States District Court (Keith) (1972)

United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970)
“The fifth wiretap was not disclosed to defendant because the District Court found that the surveillance was lawful, having been authorized by the Attorney General, for the purpose of obtaining foreign intelligence information. The Supreme Court has not yet decided whether electronic surveillance for the purpose of obtaining foreign intelligence information is constitutionally permissible [citation omitted], though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment….
…[We] discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest.”

United States v. Brown, 484 F.2d 418 (5th Cir. 1973)

United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974),
“In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.””

United States v. Humphrey (1978)

United States v. Buck, 548 F.2d 871 (9th Cir. 1977),
“Foreign security wiretaps are a recognized exception to the general warrant requirement”

United States v. Duggan, 743 F.2d 59 (1984),
“Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment”

United States v. Truong, 629 F.2d 908 (4th Cir. 1980),
“In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.”

“For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.”

In the only appellate case concerning FISA, United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

“The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. … … We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

Go back to the actual language of 4th 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.

Emphasis added.

Question: Is it REASONABLE to wire tap and act upon a conversation between a foreign terrorist and his sleeper cell in the United States?

Ans: Yes. Because preventing a terrorist attack prevents the loss of innocent American lives. The quote has been used before: “The Constitution is not a suicide pact.” Indeed, the founders inserted the word “unreasonable” recognizing that exigent circumstances may require immediate action to save lives that might be lost while negotiating the path to obtaining a warrant.

Q: Is this the only instance where warrantless searches are allowed?

Ans: NO. The Supreme Court has ruled over the years that WARRANTLESS SEARCHES may be made in a number of instances. This list comes from Andrew C. McCarthy’s article, “Warrantless Searches of Americans? That’s Shocking!”

Detain American citizens for investigative purposes without a warrant;

Arrest American citizens, based on probable cause, without a warrant;

Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

Conduct a warrantless search of an American citizen’s home and belongings if another person, who has apparent authority over the premises, consents;

Conduct a warrantless search of an American citizen’s car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car—regardless of whether there is probable cause to search the container itself;

Conduct a warrantless search of any property apparently abandoned by an American citizen;

Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Conduct a warrantless search—including a strip search—at the border of any American citizen entering or leaving the United States;

Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Conduct a warrantless search of any American citizen seeking to enter a public building;

Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

Conduct warrantless monitoring of common areas frequented by American citizens;

Conduct warrantless searches of American citizens and their vessels on the high seas;

Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

Conduct warrantless searches of junkyards maintained by American citizens;

Conduct warrantless searches of docks maintained by American citizens;

Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;

Conduct warrantless searches of auto-repair shops operated by American citizens;

Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;

Conduct warrantless drug screening of American citizens who are school officials;

Conduct warrantless drug screening of American citizens who are school students;

Conduct warrantless searches of American citizens who are on bail, probation or parole.

So, the Democrats are lying and this advertisement is not misleading. They’re lying about the current state of the law with respect to search warrants. They are lying about the specific program that the President ordered, and they are doing this lying solely for political purposes.

So I intend to vote as if my life (and that of my family) depended upon it. Because, the ad is correct, it does. Without the NSA terrorist tracking program and SWIFT, the United States is dangerously handicaped in protecting the population of the USA.

georgej on November 4, 2006 at 3:35 AM