Althouse: A cert. denial.

February 19, 2008

A cert. denial.

The Supreme Court denies cert. in the warrantless surveillance case. I wrote at length about the case here.

54 comments:

Trooper York said...: Oh boy. Legal stuff. Sweet.; 2/19/08, 2:45 PM
Trooper York said...: Isn't cert denial the reason why Lennox Lewis's breath was so bad on the Celebrity Apprentice.; 2/19/08, 2:46 PM
Trooper York said...: Sorry legal nerd guys, carry on.; 2/19/08, 2:46 PM
The Drill SGT said...: The Cliff notes version

1. US was monitoring calls from phones of known terrorists, who spoke to people in the US. We monitored the calls.

2. US law generally prohibits tapping of the phones of US persons (cits and green carders) without warrants

3. Trial court gave standing to a bunch of Muslim groups, ACLU types and press who complained that their rights "might" be trampled and their access to talk with terrorists was surely impeded and "chilled"

4. Trial judge agreed with plaintiffed against Gov. (IMHO it was a very political opinion)

5. appeals court said the plaintiffs didnt have standing and tossed the case

6. SCOTUS declined to take the case, leaving the Appeals court ruling to stand.; 2/19/08, 3:04 PM
TitusMad said...: Thanks Drill Sgt for the condensed version.

I would of had not idea what it meant without your succint detail.; 2/19/08, 3:07 PM
hdhouse said...: rats.; 2/19/08, 3:26 PM
Simon said...: One thing to add to the Sarge's cliff notes: any four Justices can grant cert, so it means that three or fewer Justices thought they should take the case. Which likely means one of two things: either the liberal bloc agrees with the 6th circuit, or (and I think this is more likely) they think Kennedy would vote to affirm, so by denying cert, they confine the ruling to the sixth circuit rather than risking nationalizing it by taking the case. This approach allows other circuits to develop contrary caselaw in the absence of authoritative resolution by the Supreme Court.; 2/19/08, 3:28 PM
Unknown said...: Glenn Greenwald is a very smart guy.

None of the "great controversies" of the Bush years, involving multiple accusations of lawbreaking, war crimes and other forms of serious corruption, has resulted in any legal process or investigations or ajudications because our government officials have been vested with omnipotent instruments to shield themselves from accountability, or even investigation, of any kind.

In a minimally functioning Republic, when our political leaders are accused of concealing wrongdoing, Congress investigates, uncovers what happens, and informs the American people. When political leaders are accused of breaking the law, courts decide whether that occurred. None of the branches of government do that any longer. They do the opposite: they not only fail to perform those functions, but they affirmatively act to block investigations, help the conduct remain concealed, and ensure that there is no adjudication. When it comes to ensuring that the NSA spying scandal specifically remains forever uninvestigated, secret, and unexamined, telecom amnesty will be the final nail in this coffin, but it is merely illustrative of how our political culture now functions.

We are now officially a banana republic.

Enjoy, wingnuts!!!!!; 2/19/08, 3:45 PM
JohnAnnArbor said...: Glenn Greenwald is a very smart guy.

Did you know he has a New York Times bestselling book?????!?!??!?!?!!!!; 2/19/08, 3:51 PM
Unknown said...: This comment has been removed by a blog administrator.; 2/19/08, 3:56 PM
Simon said...: fstopfitzgerald said...
"Glenn Greenwald is a very smart guy."

I guess you have a sense of humor after all.

"In a minimally functioning Republic, when our political leaders are accused of concealing wrongdoing, Congress investigates, uncovers what happens, and informs the American people."

So why hasn't Congress investigated? Why hasn't it used any of the tools it has against the executive branch? If all the Bush administration has done is so dreadful, why has a Democrat-controlled Congress been complicit in it? Which officers have they impeached? Which departments have they defunded?; 2/19/08, 4:21 PM
blake said...: Remember folks, if you disagree with the left on any point, no matter how small, you're crazy, stupid and/or evil.; 2/19/08, 4:22 PM
Ann Althouse said...: phantom: Don't use these comments to try to send traffic to someone who is obviously an idiot. That post is tortious.; 2/19/08, 4:34 PM
Trooper York said...: Kids, I have it on good background from a student at Sacred Hearts and St. Stephens grammar school that the pope is being dethroned and an a new papacy will be set up in Avignon; 2/19/08, 4:41 PM
JohnAnnArbor said...: I heard something like that, Trooper. Except that the new Holy See would be here in the New World.; 2/19/08, 4:51 PM
Crimso said...: "We are now officially a banana republic."

By that smart guy Greenwald's logic, we became one when the Senate refused to convict the indisputably guilty Clinton.; 2/19/08, 5:17 PM
TWM said...: We are now officially a banana republic.

The truly amazing thing about this statement is that it is not just political rhetoric. He really believes it.

You just gotta love the reality-based party.; 2/19/08, 5:21 PM
Trooper York said...: "We are now officially a banana republic."

Why can't we be officially a Victoria's Secret.

Now that's hot.; 2/19/08, 5:24 PM
KCFleming said...: Glenn Greenwald is a very smart guy.

Yes, although on Greenwald's planet, the trisomic Greenwaldian people have only recently come to recognize that flapping your arms and caw-cawing while jumping off a cliff does not in fact cause you to fly, except straight into the ground below (cement still being undiscovered by the Greenwaldian volk).

In other very smart Greenwaldian news, the hot thing with red and yellow flames remains unnamed, but it is pretty certain that it is not food, at least according to Ben Greenwald, who was last heard to scream aaaaiiieeeeee hoth hoth hoth oww owww owwwww.; 2/19/08, 5:29 PM
KCFleming said...: Trooper, unfortunately, it's never that. Not even officially a minimall Starbucks.

Instead, officially we are now an Orange Julius with one mixer on the fritz. Criminey. Better get into the official Taco Bell line instead.; 2/19/08, 5:38 PM
Mike Tanis said...: The left likes to use the boilerplate phrase "illegal wiretapping". I would contend the appellate decision to reverse the trial judge is affirmation of the legality of the Bush administration's actions. The Supremes willingness to defer to the 6th is further affirmation of the legality. In other words, the wiretapping may be Orwellian but it's not illegal. I'm not sure why liberals couldn't have taken a longer view and worked with the administration to support the anti-terror activities but enable reasonable sunset review in 5 or 10 years?; 2/19/08, 5:40 PM
XWL said...: "phantom: Don't use these comments to try to send traffic to someone who is obviously an idiot. That post is tortious."

I am now truly curious as to what post was linked that could be grounds for a civil lawsuit of some sort.

That must be some post.

(am I right to guess that the link headed to someone with the initials GG?)

USA=Banana Republic
Michelle Obama=Unproudly American

Guess it all makes sense to some folks.

Back to tortious versus tortuous, if my assumption about authorship s correct regarding the deleted link in question, the latter is typical, the former possible, but more or less improbable.

Trying to think if I've written anything that might be construed as 'tortious', so far I think not, but if I work harder at it, I might get there.

(and if anybody mentions that this particular comment is rather tortuous in of itself, I'll just pretend not to notice)

(now, how to work "torturous" into this comment . . .); 2/19/08, 6:14 PM
Peter V. Bella said...: All this talk about the US of A being a banana republic got me to thinking. Bananas are the only complete food source. They have carbs, fat, and all the amino acids necessary for protein development. I like Bananas Foster. I also like a hot fudge banana split with chocolate ice cream. Bananas with cereal is a great way to start the morning or a great midnight snack. Frozen chocolate covered bananas go good on a hot summer night. As a nice dessert, split bananas sauté in butter until the flat side is browned then sprinkle with sugar. Use a torch or put them under the broiler until the sugar is caramelized. Drizzle with caramel sauce.; 2/19/08, 6:34 PM
Peter V. Bella said...: For a healthy adult beverage, take one banana, slices of pineapple, a splash of pineapple juice and blend them with some ice. Add some dark rum and a splash of coconut milk. Enjoy.; 2/19/08, 6:36 PM
Peter V. Bella said...: If I am not mistaken, Studs Terkel, who is about 99 yrs. old was one of the plaintiffs. I could really see the old banana republic of the US of A wanting to spy on that danger to the republic!; 2/19/08, 6:37 PM
The Drill SGT said...: LOL,

fight scurvy the MCG way.

I recommend dark brown sugar btw.

another option, Fosterish

brown sugar in a fry pan, melt sugar, lay half bananas down, carmelize sugar and the nanas. add rum and cream at the end. Nanas and carmel sauce.

top with French Vanilla Ice Cream; 2/19/08, 6:43 PM
Unknown said...: Simon said...

"In a minimally functioning Republic, when our political leaders are accused of concealing wrongdoing, Congress investigates, uncovers what happens, and informs the American people."

So why hasn't Congress investigated? Why hasn't it used any of the tools it has against the executive branch? If all the Bush administration has done is so dreadful, why has a Democrat-controlled Congress been complicit in it?

Well, that of course is the question, isn't it? Apparently, the Democrats are not a functioning opposition party any more, but of course that's been fairly obvious since Bush stole the election in 2000 and the Dems responded by saying -- hey, we can work with these guys.

Since then, what have the Dems actually done to block anything Bush has done? Let me think -- wow, they blocked Linda Chavez' nomination.

Total victory is ours, comrades!!!; 2/19/08, 6:43 PM
TitusMad said...: I like a banana/strawberry/apple juice and why protein shake. Add crushed ice and watch your guns get bigger.; 2/19/08, 6:48 PM
TitusMad said...: I meant whey protein not why.; 2/19/08, 6:49 PM
Roger J. said...: Glen Greenie and his numerous sock puppets are all idiots as is anyone who thinks he is a smart guy. Fix me another mojito boy. Bring the jefe a drink.; 2/19/08, 6:53 PM
hdhouse said...: Simon....questions here.

I can understand your rationale for the math and positioning.

If I read you correctly, there must be other cases brewing on this issue. Can it be that there is a better one in the pipeline and, if so, two questions...

what would that one be and how do you think it will go if indeed it is a case that yields a better decision and a better "going forward" and cleaner ruling.; 2/19/08, 6:58 PM
The Drill SGT said...: hd said...If I read you correctly, there must be other cases brewing on this issue. Can it be that there is a better one in the pipeline and, if so, two questions...

or less elegantly it could be a recognition by the liberals that this turkey is a loser and they hope for a better roll of the dice to establish a defensible precedent.; 2/19/08, 7:12 PM
Unknown said...: XWL said...

"phantom: Don't use these comments to try to send traffic to someone who is obviously an idiot. That post is tortious."

I am now truly curious as to what post was linked that could be grounds for a civil lawsuit of some sort.

That must be some post.

(am I right to guess that the link headed to someone with the initials GG?)

Nope --

Instaputz, with a claim that Ann got canned by UW.

Hey -- A boy can dream, can't he?; 2/19/08, 7:33 PM
JohnAnnArbor said...: So, phantom, you wish ill on Prof. Althouse, who has never done anything to you, just because you disagree with her?

How fascist of you.; 2/19/08, 7:39 PM
Trooper York said...: "That post is tortious."

That means you're like a turtle. You know, the skeevy guy on Entourage. Scumbag.; 2/19/08, 7:56 PM
Chip Ahoy said...: the drill sgt, thank you for Cliff Notes version.

A. Althouse, thank you for removing torturous post.

fstopfitzgerald, bite me.

But as to those bananas, I've learned how to manage them. I'd usually buy just two, eat one and never get around to the second before it goes black. So I've learned. Now I buy two, go home, throw one away and consume the second. Solved.; 2/19/08, 8:01 PM
radar said...: There is something I've never quite understood with regard to this issue.

In a plain old domestic wiretap warrant, it is my understanding that the warrant specifies a particular phone number, which is one end of any potential conversation. The other end of the any incoming or outgoing calls isn't known at the time of the warrant. So the judicial review covers only one party in the calls that will be tapped.

Now in the wiretap scheme that this case is talking about, the known end of the conversation is not a US citizen and may not even be located in the US. As with the domestic situation, the party at the other end of the calls is unknown and unknowable at the time a wiretap is initiated.

So my question is, why is a warrant needed in the international case? For those folks who say US citizens' rights are being infringed upon, why is the international case any different from the domestic case? Who exactly would be named in a potential warrant process, the foreign (alleged) terrorist?; 2/19/08, 8:53 PM
Simon said...: HD - I honestly don't know if there are any other cases tackling this brewing, but it would surprise me if there weren't. But I want to stress the limits of that statement; I don't focus -- I mean, maybe I shouldn't admit this here, but my focus has never really alighted on the Fourth Amendment, except in a few very specific contexts that don't apply here. So if there is another case developing somewhere out there, I probably wouldn't have seen it unless it's made it up to the Seventh Circuit, which so far as I know none has. I guess the point I'd make is that the denial of cert leaves the door open for a case in any other circuit, if there's one brewing in a district court somewhere; if, say, the 2d Circuit gets a case like that and comes out the opposite way to the 6th circuit case that the court just turned down, then you've got a circuit split on a legal question apparently generating ongoing litigation, and the court is far more likely to take the case to resolve the conflict.; 2/19/08, 8:58 PM
Ignorance is Bliss said...: I would contend the appellate decision to reverse the trial judge is affirmation of the legality of the Bush administration's actions.

Actually the appellate decision very clearly does not address the legality of the Bush administration's actions. All it says it that the people who brought the suit do not have standing to sue.

If a different plaintiff came along who could show harm, then a court could address the legality of the program. Of course, for that to happen we would need someone to leak the names of people who had been wiretapped. Unless that happens, it is unlikely for anyone to have standing to sue.; 2/19/08, 9:05 PM
Simon said...: Ignorance is Bliss said...
"If a different plaintiff came along who could show harm, then a court could address the legality of the program. Of course, for that to happen we would need someone to leak the names of people who had been wiretapped. Unless that happens, it is unlikely for anyone to have standing to sue."

Even then, though I think there's a standing problem. I'm still not sure that I understand what the injury is, and maybe this is an opportune moment to ask. Some of my family lives in Britain, so I make and receive international calls, so let's suppose we get a leak that credibly demonstrated that my calls had been monitored by this program. What is the injury in fact comprehended by the court's standing cases that I've suffered as a result of that monitoring?; 2/19/08, 9:23 PM
hdhouse said...: Simon and I is B,

I once sued a lawyer/stockbroker type for a number of 9-B issues at the same time the US was bringing criminal action against him/them. they indicted about the time of the discovery conference which had to be postponed because my defendants were locked up due to flight risk. The gov. siezed all the records and i couldn't access them through discovery. My case was eventually tossed because I couldn't get through discovery. I went to the 2nd circuit (pro se mind you) and although sympathetic to my plight, there was no latitude given.

When the government has the "answers", as in this case and my case, we are confronted with the chicken and egg situation much like the standing issue here. i see them as the same....my previous and the ACLU v. NSA. ... the ultimate defense is "you can't see it...and we won't provide it because...".; 2/20/08, 4:01 AM
Simon said...: HD - sure, but I want to get back to my question from last night. Let's assume away the evidentiary problem and say that somehow, I've gotten my hands on admissable documents that prove that some or more of my calls were monitored by the NSA. To have standing, broadly-speaking, I need to have been injured in a personal and particularized way, by the particular defendant who I sue, and the court has to be able to redress the injury. In Mass. v. EPA last term, the court effectively chunked the redressability requirement, so forget that prong for now. And it seems likely that the causal nexus prong's going to be satisfied, although obviously that depends on the injury. But what exactly is my injury that arises from the NSA listening to a couple of transnational phone calls? That's what I have trouble understanding.; 2/20/08, 9:07 AM
The Drill SGT said...: HD,

I'd like to take this opporunity to say that when you are in a good and civil mood, I enjoy your posts.

You, Beth and MM are my favorite liberal posters.; 2/20/08, 10:00 AM
Simon said...: Sarge - add Eli to that list!; 2/20/08, 10:26 AM
The Drill SGT said...: added; 2/20/08, 10:41 AM
Bruce Hayden said...: Radar,

The answer is a bit complex, so I am sure to leave a bunch out.

Somewhere in the past, wiretapping became a 4th Amdt. search. Of course, in this case, the trial court ignored 4th Amdt. jurisprudence to find a 4th Amdt. violation, but that is just symptomatic of that decision. The big thing to keep in mind there is the strength of the expectation of privacy (i.e. should you have an expectation of privacy when you are talking to the enemy when we are at war?)

Domestic wiretapping is controlled by Title III. There you mostly need a warrant, but there is a big exception for international surveillance esp. in regards to national security, and there FISA controls. Of course, the trial court again ignored this.

Since the TSP (Terrorist Surveillance Program) involved international communications of enemy communications, FISA (Foreign Intelligence Surveillance Act) controlled, if any law did. FISA is a Carter era attempt to control the surveillance of international electronic communications by the federal government. And note the distinction here - there are essentially three types of communications: domestic, international, and foreign. International means that one end is here and one is not. FISA doesn't apply to foreign communications, and Title III controls domestic communications.

There are essentially two different standards that apply, depending on whether the interception is within or without the U.S. At the time that FISA was enacted, interception was relatively easy outside the U.S. of international communications was at least feasible, if not easy. That is no longer the case. So, a TSP back then would have been under the first standard, but is under the second now.

There are several differences between these two standards, the most important being that the lower standard only requires a warrant if the surveillance is of a targeted U.S. Person (someone here legally). The targeted and the U.S. person requirements do not apply to the stricter standard applicable for domestic interception of international electronic communications.

And that is significant. For example, if al Qaeda operatives sneak into this country illegally and call back to OBL, FISA would seem to apply here, under the later standard, since the call is international. Never mind that OBL was the target and they were here illegally.

The reason for these standards it to determine when a warrant is necessary. In this case, a FISA warrant, issued by the FISA court (FISC).

The problem arose when the NSA was tracking foreign telephone numbers (and Internet locations). This was being done quite a bit in the Middle East, as our troops were tracking down terrorists, esp. al Qaeda. They would grab a bunch of telephone numbers in a raid, often off of cell phones or address books captured then, feed them to the NSA, and then watch who those people called. The numbers were often good for 24 hours or less, before word of the raids got out.

This worked well, except for when a call was made from/to one of those numbers to/from a number here. The call was automatically recorded, and sometimes translated. But note that a warrant would seem to be needed, since the interception was within the U.S., even though the target is foreign. And the warrant would have to have been in place before the call was recorded - but since no one knew that was going to happen, it was impossible.

The problem with FISA warrants is that they take a lot of paperwork, and thus, time and attorneys. This was fine when the enemy was the USSR and the PRC, but did not work well with the number of calls being surveilled. There is a technical out of "Emergency Orders" that are good for 72 hours, if authorized by the AG. But the problem there is that that means that all the paperwork has to be completed w/i that 72 hours. Though 72 hours is more liberal than the pre-2002 24 hours, it still doesn't work.

Also note that the President all along has asserted that FISA in this situation and context is a usurpation of his plenary Article II powers. Not surprisingly, the Carter era trial court judge, with little discussion and no facts, dismissed that argument.

As a note here, the big thing that the temporary amendment to FISA that just expired did was to effectively apply the targeted standard to international calls (though using slightly different terminology). If the target of the call was not in the U.S., no warrant was necessary. At present, until amended again, a warrant would presumably be required, even if the target is outside the U.S. (ignoring Article II issues).

FISA is Subchapter I, Chapter 36, 50 USC (or 50 USC 1801 et seq.) and those distinctions I mentioned are in 1801(f)(1) and (f)(2). Title III is Chapter 119 of 18 USC (or 18 USC 2510 et seq.); 2/20/08, 1:21 PM
Bruce Hayden said...: When the government has the "answers", as in this case and my case, we are confronted with the chicken and egg situation much like the standing issue here. i see them as the same....my previous and the ACLU v. NSA. ... the ultimate defense is "you can't see it...and we won't provide it because...".

In this case, the State Secret Doctrine was asserted. The argument was that disclosing how the TSP worked or even if any of the plaintiffs had been surveilled, would disclose operational details of the program that would reduce its effectiveness in protecting the American public from terrorists.

The issue that the trial court spent a lot of its time on was whether or not there was enough left over to determine that the plaintiffs had standing. And then the judge found standing based on foreigners reducing their communications with the plaintiffs, presumably being scared of being surveilled. Thus, the finding was an indirect chilling under the 1st Amdt. Not surprisingly, since foreigners outside the U.S. don't have 1st Amdt. rights, this was reversed.

The trial court was also faulted on how they applied the State Secret Doctrine - pointing out that the fact that the Govt. could not provide evidence under this Doctrine could not be taken to mean that the govt. did not have any such evidence. In this case information and belief that the plaintiffs were surveilled could not overcome the fact the govt. could not overcome the inability of the govt. to answer this question for State Secret reasons.

I must say in HD's defense, that applying the State Secret Doctrine in the TSP case makes far more sense than the situation he faced.; 2/20/08, 1:37 PM
Bruce Hayden said...: Let me rephrase or amplify that second to last paragraph.

The plaintiffs asserted under information and belief that they had been surveilled without a FISA warrant (i.e. they had reason to believe such). Normally a trial court will compare the proof provided by both sides for a finding of fact. The U.S. refused to rebut this by invoking the State Secret doctrine. The error made by the trial court (as determined by the appeals court) was in comparing the proof provided by the plaintiffs with the absence of proof by the govt. and entering a finding fact in favor of the plaintiffs. But that was error, since the absence of proof on the part of the U.S. was due to the invocation of the State Secret Doctrine. The fact that the govt. might have been able to rebut the plaintiffs' proof (by, for example, showing that no plaintiff had actually been surveilled without a warrant - and FISA warrants are secret), was sufficient to overcome the plaintiffs' declarations.; 2/20/08, 1:46 PM
hdhouse said...: Simon and all..

Ahha...I get your points but do we have a reasonable expectation of privacy when we use the phone.If not then wiretap warrants are just an exercise.

It is clear from the record that law enforcement has been using the grey area to apprehend more common criminals than terrorists...i guess well and good and no i don't believe that criminal conduct deserves protections in a lot of cases...but the real deal issue here is that no one knows what was recorded or listened to but i could claim i was talking about a legal issue with counsel and the information was used against me but i had no idea how the government got ahold of it...the matter would resolve if the government said yes or no but when it effectively hides behind a not-needed secrecy curtain then there is doubt as to what they are listening to and how it is being used.

Suppose mr. nixon had this power and resource. are we to believe with a straight face that it wouldn't have allowed him a pretty big playground?

laws are kinda phoneybaloney if they can be bent to the will of the administration.....and do you really trust these guys to play it straight?; 2/20/08, 4:51 PM
Simon said...: But HD, the "expectation of privacy" concept ties this case to the Fourth Amendment - IIRC that language originated from Katz - and it seems to me that the border search exception applies with as much force to telegraphic communication as it did to the packages or letters or whatever it was in United States v. Ramsey. The Fourth Amendment doesn't generally apply to searches of materials being brought into the country that are conducted at the border, and I'd think that just as the protections of the Fourth Amendments encompass electronic media, so to do its limits. That's an inelegant way to put the point, but I'm pushed for time and it words. ;) (I suppose another interesting case would be when you have voice or data transmission that's transiting the internet between two non-U.S. destinations through the United States.); 2/20/08, 9:17 PM
Bruce Hayden said...: As to the expectation of privacy, while Katz may have provided that for purely domestic calls, international and foreign calls are a different story. They have a long story of being surveilled, esp. at a time of war, and I don't think that there is any SC precedent to treat them the same as domestic.

The other part of this is that the typical way that people find out that they have been domestically wiretapped is after they have been indicted for a crime. In this case, the plaintiffs were guessing from published reports of how the TSP worked, they thought that they might have been surveilled for their international calls with people they thought might be suspected terrorists. But they had no actual evidence of having had their domestic or international calls intercepted, and, indeed, I don't think that any U.S. Person has such evidence of having their domestic or international calls intercepted under the TSP, and even if they did, they have no evidence that a FISA (or Title III) warrant was not procured.

Part of this lack of an expectation of privacy comes from WWII, when international calls and telegraphs were routinely intercepted, as well as much international mail read.

You may argue that you should have an expectation of privacy when talking over the phone with a known or suspected terrorist overseas, but so far, I don't think that the Supreme Court has accepted that yet.; 2/21/08, 12:52 AM
hdhouse said...: Bruce and Simon

I don't think it has been argued yet. I accept the history of monitoring communication during a declared time of war (WW2) but I am troubled by an endless undeclared war being compared to a declared total war.

Further, under no circumstances did the founders crystal ball the communication era we are in.... from VoIP to disposable cells...the matter should be visited and clarified.

perhaps this case was so caught in procedure over substance as to be a non-starter and the bush administration found the loophole that would avoid the courts or negate them. but as just the average joe citizen i am perplexed that we have no part of our government that is trying to sort this out so we can all go forward with a clear understanding of what is what.; 2/21/08, 6:12 AM
Simon said...: hdhouse said...
"Further, under no circumstances did the founders crystal ball the communication era we are in.... from VoIP to disposable cells...the matter should be visited and clarified."

Agreed; the Fourth Amendment certainly encompasses novel new ways of carrying out the government conduct it proscribes, just as the 2d amendment doesn't restrict itself only to those arms the framers envisioned when drafting it. That's the point of the Kyllo case, where the court said that look, just because you're using an infrared scanner to search someone's house, instead of sneaking in and looking around while they're out, that's still a search, and it's the search that the amendment proscribes, not the physical mechanism by which it's carried out. (That door swings the other way, too - Scalia is fond of pointing out that the death penalty is obviously constitutional, which is true, but it doesn't answer a challenge to a particular method of carrying out the death penalty - a punishment can without any doubt whatsoever (unconstitutionally) violate the Eighth Amendment, even if it carries out the object of the (constitutional) death penalty.; 2/21/08, 7:58 AM
Bruce Hayden said...: Let me suggest though that it was a bigger stretch finding a 4th Amdt. right in telephone conversations than against infrared scanning from right outside the house.

After all, the infrared scanning involves trying to see what is going on in the house from the outside, whereas telephone calls have only a peripheral connection with such. And that is for land lines, which are becoming much less used. What about someone on their cell phone who might or might not be in the house? Presumably, the 4th Amdt. still applies.

Of course, that is not the only concern here, even for purely domestic electronic communications. Title III controls tapping of domestic phone calls, and that too has an effect on the reasonable expectation of privacy of phone calls (as do state level wiretapping laws).

To some extent these are parallel, and to some extent intertwined. Notably, the plaintiffs plead Title III, FISA, and the 4th Amdt. (plus the 1st to get standing). The trial judge, after spending a lot of time on standing and State Secrets, kinda glossed over this, but still finding for the plaintiffs.; 2/21/08, 1:07 PM