Buster of In Muscastine continues his crusade to try and find ways for the President to claim the authority to actively engage in and authorize warrantless wiretaps. He takes it to a whole new level by claiming that a 2004 Appellate Court decision–granting police officers the limited ability to search homes if there is a threat of imminent violence from a person they intend to question without a warrant–gives judicial or other legal means for the President to assert or claim executive and law enforcement authority to order the NSA wiretaps.
“I have been telling the Sore-Ass this was the law coming back into harmony with itself. I told him it is ludicrous to believe a cop has this authority but the President - as the Chief law enforcement officer of the USA - does not. Well, this little gem helps prove my assertion, and adds to the pile of evidence against the position of the Sore-Ass.”
Well, I’m glad that Buster did all the legal wrangling and in-between work to make sure that this case about Louisiana police detectives and their investigation sets a clear precedent for the President to authorize wiretaps on US citizens or foreign citizens by the National Security Agency. The decision, then, must of course deal with issues surrounding the FISA statute, the FISA court itself, and even massive Constitutional issues like the 4th Amendment and its consideration of the President’s wartime powers. I didn’t realize Buster had so much legal experience the and ability to get all of this legwork done in just a couple of days. I’m impressed. /sarcasm.
In fact, Buster’s assertion is about to be plain busted. Buster begins his tale with this link to a New Orleans news station’s article about a March 2004 decision by the 5th Circuit Court of Appeals. The article starts off with this frightening introduction:
“It’s a groundbreaking court decision that legal experts say will affect everyone: Police officers in Louisiana no longer need a search or arrest warrant to conduct a brief search of your home or business.
Leaders in law enforcement say it will keep officers safe, but others argue it’s a privilege that could be abused.
The decision in United States v. Kelly Gould, No. 0230629cr0, was made March 24 [2004] by the New Orleans-based 5th Circuit Court of Appeals.
The ruling stems from a lawsuit filed in Denham Springs in 2000, in which defendant Gould filed a motion to suppress information gleaned from a search of his home. The motion was granted by district court, and the government appealed this decision. The March 24 ruling by the 5th Circuit is an affirmation of that appeal.”
Let’s correct the WDSU story first. The lede is entirely misleading. It only grants the police this privilege in very limited circumstances which I’ll talk about shortly. Secondly, the case they link to isn’t even the right decision. That decision is one before three appellate judges who ruled that the evidence collected in the case was inadmissible, affirming an earlier decision by the district court. The case the WDSU story should be linking to is United States v. Kelly Gould, No. 0230629cv0. Click on the link for a PDF of that decision (the other decision can be found here). This is the same case, however, it is front of all the judges, known as en banc. From Wikipedia:
“Appellate courts in the United States sometimes grant rehearing en banc to reconsider a decision of a panel of the court, where the case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court.”
Hopefully that cleans things up for the non-legal experts among my readers.
I think it is pretty clear from Buster’s post–and not even acknowledging that the link to the decision was the wrong one–that he had never actually read either one of the decisions or had even attempted to see what the Supreme Court had said on the case (I assumed it had to have been appealled to the SCOTUS). But, that’s usually what Buster does: He reads and comprehends what he wants to and then tries to make a point.
The Supreme Court denied a writ of certiorai in November of 2004 in Kelly Donald Gould v. United States - No. 03-11063 (125 S.Ct. 437), thus tacitly affirming the Appellate Court’s ruling (Ed. note–found this info via Lexis-Nexis). Which is fine by me; I’ve read both decisions and I think they were decided on sound judicial ground. I don’t necessarily like what they ruled, but that’s not the argument here. The argument is that this decision somehow adds to Bush’s claim that he has the executive authority to authorize the wiretaps, as Buster asserts it does. I don’t see is the supposed relationship that Buster tries to draw.
I don’t have the time nor the ability to get into the details surrounding the case and the reasons it was appealed. If you’re interested, you can read the introductory pages to the decision of the en banc panel. However, from what I was able to comprehend from the decision (I’m no legal expert either, but at least I READ the decisions), evidence used to arrest Gould was allowed to be admissible–reversing the decision of the district court–even though the detectives had no search warrant and had only entered the trailer of Gould, and then his bedroom, at the behest of another person in the trailer and to ask Gould some questions about alleged comments he had made where he had stated his intent to murder two local judges. The officers had reason to fear violence from Gould and thus had the power to quickly look under his bed and in his closets to see if he was hiding there–what is known as a protective sweep. In one of the closets they found rifles which he was not allowed to be in possession of because of his status as a fellon. The officers didn’t touch the weapons at all. They quickly moved out of the room and found Gould and questioned him. They also got a signed sheet of paper from Gould allowing the officers to search his trailer; subsequently the guns were confiscated and he was arrested. Gould tried to claim that the search was illegal because the officers had already found the guns and were essentially setting him up. The Appellate Court ruled against Gould:
“We hold that a protective sweep as authorized by Buie need not always be incident to an arrest. The district court erred in holding otherwise. Applying the standards and limitations articulated in Buie and the general reasonableness criteria of the Fourth Amendment, we conclude that the protective sweep here was valid.”
So, what does all of this mean in regards to Buster’s post? (Which, by the way, is only half made of arguments and the other half narcissistic ego-stroking)
Well, a couple of things. First of all, the decision deals only with physical searches by law enforcement officials in this particular case. The wiretaps ordered by President Bush and put in place by the NSA are electronic surveillance, not physical searches. So, there is a weak link here; the only claim I can see arising here is that both cases involve warrantless searches.
Second, the issue deals with protective sweeps–that means that officers are using the search in reasonable means where they might fear attack or violent incident if they are invited into a particular locale that might require a warrant if not invited in. Moreover, as noted in this decision, the officials are to make these searches brief and reasonable, which is consistent with other past jurisprudence surrounding protective sweeps. The taps implemented by the NSA for Bush were for extended periods of time, not a matter of seconds.
Third, the decision did not speak in regards to issues surrounding the FISA statute, the FISA court, or other federal statute that is involved with monitoring foreign communications within the United States to people outside the country. In no way at all did it deal with espianoge.
Finally, and most importantly, Buster makes a logical leap taller than the Empire State Building itself:
“I told him it is ludicrous to believe a cop has this authority but the President - as the Chief law enforcement officer of the USA - does not.”
It isn’t ludicrous to believe this, it is simply the way it is. Just because a police detective following up on a routine questioning of someone who might become violent has the power to engage in protective sweeps doesn’t equate to the President of the United States having the ability to issue executive orders that require the National Security Agency to impose electronic surveillance measures–wiretaps–on people inside the United States having international calls. In fact, even if it did mean this, it’d mean that the President would have to be doing this act himself and that sure as hell doesn’t seem likely.
Buster, you’ve just been bust’d.
