Thursday, January 18, 2007

Legal Shenanigans Over CATCH ALL

Despite the hoopla about the administration allegedly backing down from their extra-legal warrantless eavesdropping program, it is clear that Gonzales's action is an attempt at sophistry to evade the consequences of having acted illegally for five years.

It isn't going to work.

It all boils down to the Fourth Amendment's requirement that "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."

There isn't any way that the CATCH ALL program can be configured to meet that standard.


The Bush administration said yesterday that it has agreed to disband a controversial warrantless surveillance program run by the National Security Agency, replacing it with a new effort that will be overseen by the secret court that governs clandestine spying in the United States. ...

One official familiar with the discussions characterized the change as "programmatic," rather than based on warrants targeting specific cases. This official, who spoke on the condition of anonymity, said the judge who issued the Jan. 10 order was not U.S. District Judge Colleen Kollar-Kotelly, the FISA panel's chief judge, but rather one of that court's rotating members who was assigned to hear cases that week.

It is hard to figure out what the "change" they have worked out with the Foreign Intelligence Surveillance Court can be. Sounds like they are talking about using blanket warrants. Blanket warrants are not constitutional, the person has to be described by name -- or at least has had to be under American jurisprudence to this point.

In case anyone imagines that the NSA program has been re-engineered to provide for individual identification of suspects -- thus making appropriate warrants feasible -- forget it. That is impossible given the massive scale of the collection under CATCH ALL (especially the first sift).

Another official, not authorized to discuss the matter publicly, said both the director of national intelligence and the head of the NSA "have assured the president that the program and that the capabilities to protect this country remain intact under this new order."

There you have it.


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