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July 28, 2007

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A durable link to Marty Lederman's discussion of data mining ...

http://balkin.blogspot.com/2007/07/whats-legal-significance-of-data-mining.html

As usual, it's well done

As to the interplay between FISA and the Constitution, it really probably should be noted that there were many who were of the opinion that FISA and the FISA Court process itself are unconstitutional at the time it was passed and still do. I take no position on that issue here, but will note that there is, to use (and misapply somewhat) a term of art in constitutional analysis, a rational basis for that discussion. There really is no question, however, but that there is a cognizable argument that not every violation of FISA is a Constitutional violation.

-- ... it really probably should be noted that there were many who were of the opinion that FISA and the FISA Court process itself are unconstitutional at the time it was passed and still do. --

It's been over a year that I looked at that, and IIRC, the "FISA is unconstitutional" contention was made in both directions. One being that FISA represents a Congressional/Judicial incursion into executive power, and the other being that the provisions of FISA can, in application, run afoul of the [notice] protection guaranteed by the fourth amendment.

At any rate, the primary object of FISA involves all three branches, and is to promote predictability in court proceedings. The Kieth case is great reading on this point, where SCOTUS suggests that Congress pass a law on the subject of surveillance for the purpose of gathering foreign intelligence information.

As for enhancing predictability, surveillance within the confines of FISA is presumptively constitutional, and (warrantless) surveillance outside of FISA loses that presumption.

I think FISA is useful in that regard, I don't think FISA itself is unconstitutional because I hold that the president is free to conduct surveillance within the limits of the fourth amendment and his inherent power to provide foreign vigilance.

I don't get my knickers in a knot just because their is surveillance outside of FISA - OTOH, I assume there is routine surveillance that is outside the bounds of the fourth amendment, but without a case, admission by the peeker (won't happen, see state secret), or other fact-specific evidence, there is no way to prove it. Which leads to another area that causes me some concern, that being the extension of awareness (via surveillance) into action.

I have no doubt that President Bush has overreached in many areas (and continues to overreach), and I think a number of those overreaches will, in time, bite us in the ass, one way or another.
Posted by: cboldt | July 29, 2007 at 09:38

"Overreach" is an ambiguous word. What is it you're are saying? Overly ambitious and therefore at risk of failure, beyond the authority invested in him as President, in clear violation of the law?

oops again. sorry.

-- "Overreach" is an ambiguous word. What is it you're are saying? Overly ambitious and therefore at risk of failure, beyond the authority invested in him as President, in clear violation of the law? --

Two out of three of those. Risk of failure (another ambiguous word, FWIW) in multiple areas (he's been ambitious in crafting substantial new systems within the government), and acting beyond the rightful authority the constitution grants to the executive. I had another notion in mind as well, that being that his legal justifications are sometimes overreaching - e.g, the AUMF represents a Constitutional grant of authority in the sphere of warrantless wiretapping.

On your second point, acting beyond the authority granted by the constitution, Lincoln also acted outside of constitutional bounds, see ex parte Merryman. So did Truman, see Steel Seizure Cases.

I'm not inclined to enumerate the incidents of "overreaching," but I've commented on individual incidents as they struck my interest.

My comment was meant simply to let the more casual readers know that FISA is not necessarily the be all to end all on these types of discussions (an impression some seem to have) and that reasonable people have argued it's constitutionality over the years. Personally, while I understand the arguments to the contrary, I think it passes muster and is a useful device. I just didn't want to get sidetracked on this argument at this time. Although I really do find that it passes Constitutional muster, any consternation I have had related not so much as to separation of powers or Fourth Amendment considerations, but to issues under the confrontation clause and availability of ALL of the governments evidence against a defendant for purposes of trial.

Heh heh. Neil, we are going to have to start referring to you as Neo-Jodi for these bold transgressions.

bmaz, ...as long as I'm not accused of posting style over content or repug talking points.

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Get a Mac; the bold option doesn't even show up on Safari.....

Well at a late date, still in these posts I would want to repeat that one of the foundations of democracy is that "we the people" get to participate in the debate. My problem with the Fisa discussion is that discussion, debate, group work needs to be continued. My problem with Bush is not about the details of the constitutionality of the law. It is instead that the "process" is not even close to democratic and that IS THE problem. It's about process.

I am far more sceptical about this data scheme.

I think the Comey/Ashcroft handwringing over the entire issue was not so much about a national security boondoggle gone goofy as much as a fear about the blatant, grossly illegal, and wilful political misuse of this scheme.

Rove has long been known for getting deep inside information, and using crooked methods to get it. There is little doubt in my mind that RoveCo shared this network scanning opposition candidates, intimidating wavering folks on his own side, learning little secrets, and in general using this national security monstrosity as his very own super duper version of Ask.com. The allure of this scheme would have been utterly and absolutely irresistible to someone like Rove, or his more sinister lieutenants. How could it not be? You have everyone, and I mean the entire country at your fingertips. Some local party man in Iowa acting up? No problem, listen in, and then just crush out his scheme.

We are not being cynical enough here, Comey would turn up his nose at one thing, blatant illegality. In this ponderous money gobbling "rat hole" of a spy scheme, that blatant illegality would have been in the misuse for partisn political ends, and perhaps even blackmail.

Bush is clearly involved either by direct commission or deliberate omission as in "I don't want to know-I don't care how you do it-just don't bring it in here."

I just wish someone would really go "Joe Valachi" on this gang!

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