Today, Bush once again tried to make the case that he and the NSA are only spying on Al Qaeda in their warrantless wiretaps. Bush even recommends that we read his attorney general's justification for these wiretaps. Well I have.
The DOJ justification has an entire section entitled "The Warrant Requirements of the Fourth Amendment Does Not Apply To The NSA Activities." This is a justification for spying on Americans not Al Qaeda.
However, within this section, the DOJ is unable to cite any legal precidents involving wiretaps that support its case. In fact, the DOJ literally uses a case involving a girl caught smoking in her school restroom to support their means to violate the 4th amendment (you just can't make this stuff up).
The case New Jersey v T.L.O. involves the girl who was caught smoking, and resulted in having her purse searched, which contained drugs. The DOJ tries to use this as a demonstration that warrantless searches are valid in "special needs" situations. However, this case involves a high school student and the Supreme Court was very clear in its decision on this case, and others, that the search was allowed because children in school are under the temporary custodial care of the school.
The DOJ includes several other cases involving searches on school children to justify violating the Fourth Amendment. In one of those cases (one that the DOJ seems particularly fond of citing repeatedly). Vernonia Sch. Dist v Acton, the Supreme Court clearly articulated its stance in the T.L.O case of allowing warrantless searches of school children...
T. L. O. did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.
Does this mean that the bush administration considers us to be within its custodial care (ie custody)? It would seem to some extent so. As I noted in my previous diary, the DOJ is also quite fond of supporting its case based upon searches of prisoners on probation. In these cases the Supreme Court once again viewed these individuals to not have the rights of regular citizens. In two of these cases,
United States v Knights and Griffin v Wisconsin, the Supreme Court clearly articulates its stance on searches of those on probation...
"Probation, like incarceration, is `a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.'"
As his sentence for the commission of a crime, Griffin was committed to the legal custody of the Wisconsin State Department of Health and Social Services, and thereby made subject to that Department's rules and regulations.
Supervision, then, is a "special need" of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.
Once again the Supreme Court shoots down the DOJ's justification, noting that these custodial relationships provide for searches that would be unconstitutional if applied to the public at large.
So I guess under the DOJ's logic we should now consider ourselves to be under the custodial care of the bush administration. Think twice about sneaking another cookie ,look both ways before crossing the street, and oh yeah, do your homework and be in bed by 9pm.
It is important to note that NONE of the cases cited by the DOJ in the section "The Warrant Requirements of the Fourth Amendment Does Not Apply To The NSA Activities." have anything to do with wiretapping. You would think that the DOJ could dig up at least one wiretapping case in some drug bust or mafia takedown case to bolster its position. But no.
The DOJ argument for violating the 4th amendment stems from citing three types of cases, the school children and probationers mentioned above, and a third group involving police check points. Ah yes police checkpoints, there's a happy democratic process though of the day for you.
The issues at hand in these cases are a bit more complex than those cited above, but the Supreme Court is clear that such activity is only allowed under certain circumstances, and then only when it is a minor intrusion on the privacy rights of the public at large. At least you know you are being subjected to a police checkpoint right?
I'll take a look at these cases as well as a look at the DOJ's argument that bush's criminal wiretaps are "reasonable" in a following diary.
In the mean time, don't buy the sound bites from bush that the DOJ's justification is about spying on Al Qaeda. It is clearly all about justifying the spying on the American public at large... or should I say the Federal Government's children at large.