16 July, 2008

The Candidates and the Fourth Amendment

This is the fourth post in an ongoing series regarding the major Presidential candidates and their views on civil liberties.

This post is about Senator John McCain's (R-AZ) and Senator Barack Obama's (D-IL) views pertaining to the Fourth Amendment of the Bill of Rights. There's a bit more to speak about regarding this than the Third, especially in light of recent FISA (Foreign Intelligence Surveillance Act) activities.

Let's go straight to the text:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

For Barack Obama, we should get straight to the 2008 amendments to FISA.

FISA is a broad extension of the powers of the government to perform searches.

According to the Wikipedia article linked above, the act:

  • Prohibits the individual states from investigating, sanctioning of, or requiring disclosure by complicit telecoms or other persons.
  • Permits the government not to keep records of searches, and destroy existing records (it requires them to only keep the records for a period of 10 years).
  • Protects telecommunications companies from lawsuits for "'past or future cooperation' with federal law enforcement authorities and will assist the intelligence community in determining the plans of terrorists."
  • Removes requirements for detailed descriptions of the nature of information or property targeted by the surveillance.
  • Increased the time allowed for warrantless surveillance to continue from 48 hours to 7 days.
  • Requires FISA court permission to wiretap Americans who are overseas.
  • Prohibits targeting a foreigner to eavesdrop on an American's calls or e-mails without court approval.
  • Allows the FISA court 30 days to review existing but expiring surveillance orders before renewing them.
  • Allows eavesdropping in emergencies without court approval, provided the government files required papers within a week.
  • Prohibits the government from invoking war powers or other authorities to supersede surveillance rules in the future.

The amendment in bold has caused an uproar from Obama supporters, since he had originally promised to filibuster any bill which contained such an amendment, but instead not only voted for the bill, but also vote for cloture.

Frankly, the whole bill is most likely a loss from a Libertarians point-of-view.

Glassbooth.org has a mixed review of Mr. Obama:

"Supporters of this Conference Report have argued that we should just hold our noses and support the legislation, because it's not going to get any better. That does not convince me that I should support this report. I believe we owe it to the nation to do whatever we can to make this legislation better. We don't have to settle for a PATRIOT Act that sacrifices our liberties or our safety - we can have one that secures both." - Barack Obama

Then he voted yes to reauthorize it, but voted no on extending the wiretap provision. He co-sponsored the SAFE Act, which put limits on PATRIOT.

"Let me be clear: this compromise is not as good as the Senate version of the bill, nor is it as good as the SAFE Act that I have cosponsored. I suspect the vast majority of my colleagues on both sides of the aisle feel the same way. But, it's still better than what the House originally proposed. This compromise does modestly improve the PATRIOT Act by strengthening civil liberties protections without sacrificing the tools that law enforcement needs to keep us safe."

Glassbooth says he's neutral on giving the federal government more domestic surveillance power, but I'd say they're being generous. His only no vote in that area is in the PATRIOT Act's wiretap provision and his statement should not be encouraging to defenders of the Fourth Amendment:

"We should strengthen and improve intelligence capabilities. We must reform our domestic intelligence capabilities in a manner that balances the risks of impeding on the civil liberties of our citizens and increase international cooperation on all fronts. We should also give the Director of Intelligence the authority he or she needs over budget and personnel to be effective and accountable."

Q: Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes? A: The Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes."

He voted yes on extending the right of habeas corpus to Guantanamo detainees.

So, where do we find John McCain on these issues?

Not a whole lot different from Mr. Obama.

He also voted for the 2008 Amendments to FISA. I suppose if you're a Fourth Amendment advocate, you can say that at least Obama said he was originally going to oppose it.

Looking at Glassbooth.org's page on McCain we see:

He also voted for reauthorizing the PATRIOT Act. He did vote for extending PATRIOT's wiretap provision.

Glassbooth.org says that he supports giving the federal government more domestic surveillance power, when it claimed that Obama was neutral. I see barely a whisker's worth of difference between them.

"Q: Now, you have expressed some concerns about the NSA program. Does this change your mind? A: No. But my concerns are that we should have - the president should come to Congress with a proposal as to how we can best meet these new challenges. Look, everybody's got a BlackBerry now, the e-mails, all of the new technologies for communications, as opposed to, say, 10 or 15 years ago where we all just had a hard line. There are new challenges in the use of telecommunications that, in my view, indicate that we probably need some enhanced powers. But why not just come to Congress? Now Senator Specter is going to have some hearings on it - come to Congress, tell us what we need, what the president needs, and I am confident that he would get that authority. Q: But you do not believe that currently he has the legal authority to engage in these warrant-less wiretaps. A: You know, I don't think so, but why not come to Congress? We can sort this all out. I don't think - I know of no member of Congress, frankly, who, if the administration came and said here's why we need this capability, that they wouldn't get it. And so let's have the hearings. Let's have the administration come to Congress. I think they will get that authority, whatever is reasonable and needed, and increased abilities to monitor communications are clearly in order."

Q: Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes? A: There are some areas where the statutes don't apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is...I don't think the president has the right to disobey any law.

He opposed extending the rights of habeas corpus to Guantanamo detainees. There's a difference, but I want to discuss this one in my summation.

Like Obama, McCain said Guantanamo should be closed, but he wants to bring the specially created military justice system to US soil to try the inmates. He insisted that the inmates should not have access to civilian courts, regardless of where they are detained. "We made it very clear these are enemy combatants," McCain said yesterday, defending his position. "They have not, and never have, been given the rights of citizens of this country."

He's on record as strongly opposing torture of any kind. However, he did vote no on the Intelligence Authorization Act for Fiscal Year 2008 which would've required the CIA to use the same standards for interrogation that are used by the Army.

Before I give the grades, I want to speak about habeas corpus and Guantanamo detainees. My belief on this one is that their positions here is not relevant to a discussion of Fourth Amendment rights. The framers clearly intended the rights guaranteed by the Bill of Rights to apply to citizens of the United States and not to enemy combatants. I agree with McCain that the detention camp at Guantanamo should be closed, but that military courts are the way to handle the situation.

So, I included their positions for those of you that think that it is important, but I will not be using those positions in determining the grades for the candidates.

One could argue then that torture doesn't belong in the discussion as well, since usually when we're talking about torture we're talking again about those same "enemy combatants", but I put it in for McCain because he has been so vocal about his beliefs here, and I think it says something about how he feels about the Fourth Amendment in general.

So, to the grades.

Obama: D+ He'd have made it to C or even C+ if he'd stood by his word on the FISA Amendments. He clearly has issues with the PATRIOT Act, but just as clearly doesn't want to get rid of the whole thing.

McCain: D+ While he supports PATRIOT's wiretaps, he also has many of the same issues with PATRIOT that Obama does. He's on the fringe of dropping to a D because of the wiretaps, but his strong opposition to torture nudges him up just enough to "claim" a D+.

Fourth Amendment: No Advantage

Results so far:

Obama McCain
First Amendment* F
Second Amendment D- C-
Third Amendment B B
Fourth Amendment D+ D+

* Obama's First Amendment grade lowered as documented in this post.

UPDATE: Obama's First Amendment grade lowered to F as documented in this post.

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