more like this, please
Hats off to Al Franken, of all people:
Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap a an unnamed target and his or her various and changing cell phones, computers and other communication devices.
Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part: “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.”
“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.
Via Phelps.
September 25th, 2009 at 8:56 am
Huh. I wonder what Franken thinks of the explicit language in the Second Amendment.
September 25th, 2009 at 9:25 am
While I have a problem with the target of the wiretap being unnamed I have no problem with being able to target any and all devices said target uses.In other words if you have a warrant to tap Joe Blow it should cover any device he uses from the pay phone down the street to his best friends cell phone but would only cover conversations he had on said device.In todays world of disposable cell phone requiring it to be specific is worse than useless.
September 25th, 2009 at 10:51 am
I think it’s wonderful that Sen. Franken read the 4th amendment to the official as it’s apparent that just about everyone in the government needs to be reminded of its content.
However, the distinguished gentleman needs to be reminded that it was the House and the Senate that drafted the Act, debated the Act, voted to pass the Act, and sent it on to the White House for signature. And that the role of the DoJ is enforcement of law, not the creation of it.
September 25th, 2009 at 11:21 am
deadcenter: “However, the distinguished gentleman needs to be reminded that it was the House and the Senate that drafted the Act, debated the Act, voted to pass the Act, and sent it on to the White House for signature. And that the role of the DoJ is enforcement of law, not the creation of it.”
The House, the Senate, and the White House certainly did that. And the role of the DoJ is enforcement of law, not the creation of it. However, I seem to recall something about the Constitution being the “Supreme” law of the land; yeah, here it is: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
It would seem that he (Franken) was reminding/informing an “assistant attorney general” (Kris) that what he was advocating did not pass muster.
September 25th, 2009 at 11:27 am
Y’know, I’ll take my wins where I can get ’em.
September 25th, 2009 at 12:13 pm
Actually, it’s not the role of the DoJ, or any other part of the executive branch, to “enforce the law”. It is the role of the executive brance to determine how to enforce the law. The former entails blindly enforcing any, and every, law that is passed. The latter requires actual judgement and discretion. Remember, one of the many valid answers to “how to enforce a law” is “you don’t”.
September 25th, 2009 at 2:42 pm
[…] Guess I’m a twofer […]
September 25th, 2009 at 3:54 pm
damn. I hate having to agree with a horse’s ass, but I have to.
The constitution was written for Joe average to comprehend. Course it’ll be one hell of an uphill fight as we’ve pretty much already gone over the cliff in this area with judges, lawyers, procedure, precedent, magical words that mean different things when read by folks in robes….
Fret not, he’ll be shown the ropes and fall into line soon enough.
September 25th, 2009 at 4:08 pm
who the Hell would have ever thought he would get it right? But he did.
September 25th, 2009 at 4:31 pm
Nobody ever seems to note that the Fourth Amendment pointedly does not say that warrants are needed before there can be any search.
(They aren’t now, given probable cause, and weren’t strictly necessary at the time of the founding, though they were common enough; see here and here.
Warrants were being assumed as the most common mode of justifying a search, but neither the Founders nor the Courts since then have held that searches must always require one. (eg. Customs searches don’t require a warrant).)
Beyond that, in the roving case, nothing is being seized (unless we want to say “the words of the persons involved in the conversations”, which seems particular enough to me), and the “place being searched” is as particular as any wiretap of a mobile phone can be.
Unless we’re going to claim that you can’t ever listen to a mobile conversation because you can’t specify “the place being searched”, the fact that the person is described rather than named (since his name, as a conspirator, is unlikely to be known) doesn’t seem significant.
There might be civil liberties issues with roving wiretaps, but I don’t think this is one of them.
September 26th, 2009 at 11:50 pm
Perhaps Franken could peruse the interstate commerce clause while he’s at it?
And the Tenth Amendment.