Posted on 01/25/2014 8:04:59 AM PST by madison10
It's pretty obvious that we as a society are now made up of two groups. There are those who, for better or worse, have moved their lives into the digital realm, and those who haven't.
I would like to introduce you to someone in the latter category. His name is Edward Korman and he is a federal judge in New York state. He had a case before him involving a U.S. citizen – a Ph.D. student at McGill University in Montreal – who had his computer confiscated while returning to the States. The judge ruled, sweepingly, that, yes, the federal government had a right to confiscate laptops at the border without probable cause...
...It was odd – there's surprisingly little talk about the ruling online. (It came down on New Year's Eve afternoon.) The more you read, the weirder the rules are. The so-called "border exemption" extends 100 miles inland from the border. That includes the population of the Eastern Seaboard, Miami, Houston, the west coast, and Chicago.
I wanted to find a smart legal mind who'd considered the issue. I finally found someone who had. He came up with a simple encapsulation to prevent this sort of intrusion into our private lives for no reason. It went like this:
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...
(Excerpt) Read more at foxnews.com ...
This is what they do. They swear that they respect the Constitution, but then find ways to make it invalid.
It’s the American way. Deny you’re doing it. Give it a nice-sounding name. Go right on doing what you always did.
The Constitution means what it means, not what you (or I) think it ought to mean.
If you think searches of persons and property at the borders should be prohibited without a warrant, may I suggest the Constitutional provision for making such a change? Pass an amendment or law.
Don’t sit around claiming the Constitution is a blank document that (oddly enough) just happens to mean whatever you want it to. That is the living Constitution theory, and it has been the single greatest factor in the decline of our actual Constitutional government.
Do you still have a right to trial by Jury if you committed a capital crime like Murder in the USA and are indicted but are not within its borders. And since you are not within the borders of the United States is it OK that the Government assassinates you rather than go through with a messy trial?
Very, very odd "reasoning."
If I commit a crime, murder or otherwise, in the USA but flee to a foreign country, I can indeed be indicted for the crime. However, I believe I would have to be physically returned to the USA to be tried. So I'm not sure what your point might be.
If I wage war on the United States I would expect them to return the favor, particularly if I'm overseas and in a location not amenable to arrest and extradition. This presents obvious problems with definitions and designation, but I find nowhere in the Constitution that a US citizen engaged in warfare on the USA has special privileges requiring him to be arrested and tried, rather than killed in the same way as a non-citizen engaged in the same activities.
IOW, if I'm in Afghanistan shooting at US soldiers, I expect them to respond in exactly the same way as if I'm an Afghan shooting at them.
That is a fantastic idea. I wish some smart person would develop it. If such a thing exists, I don’t know about it, but I’m not that educated on technology.
I’m still waiting for somebody to post something showing that 4A requirements with regard to warrants have EVER applied for customs inspections.
Unless such evidence is produced, it’s pretty difficult to claim that the present administration is removing previously accepted rights.
My understanding is that longstanding law is that routine searches can be undertaken for no reason other than a random check. Non-routine, more rigorous searches require some degree of reasonable suspicion, but certainly no warrant.
I don’t claim to be an expert on this subject, and I’m certainly willing to be convinced I’m wrong, but I’d like something vaguely resembling evidence.
It must; the restraints of the Constitution are obviously on the government, not the people.
Until I have passed through customs, I am not legally in the USA and therefore the 4th Amendment does not apply. Unless for some odd reason you think the Constitution applies throughout the world.
Question: if you are traveling abroad, and the US Government decides that you've committed a crime, can it kill you in contravention to the 5th and 6th amendments which guarantee: due-process of law, that all prosecution of capitol offenses be validated by presentment/indictment of a Grand Jury, that the accused should have jury trial where the offense occurred, that the accused should be "informed of the nature and cause of the accusation", and that he should be able to mount a defense?
I’ve been waiting close on two hours for some evidence that 4A warrant requirements have EVER been considered as applying to customs inspections.
I guess I’ll have a long wait.
It already exists:
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.The warrant could be issued for a particular place (say, the airport) and particularly describe the things to be seized (say, opiates).
AFAIK, customs searches have always been exempted from 4A.
If you think this is unconstitutional, you should have taken it up a couple of centuries ago with G. Washington, who set the precedent.
I might be tempted, but there is a fundamental difference between freight and people -- the Constitution recognizes people as having rights (e.g. the 4th amendment).
Thus the 4th doesn't apply to cargo-ships -- which would be the overwhelming number of customs cases.
The other way to look at the issue is this: what reason did the government agent have to confiscate the laptop? If he were called in to court, what would his under-oath answer be? (a) Would it justify the confiscation? and (b) would it match with the truth (i.e. would the agent's testimony be faithful or a perjury)? — this is why warrants are a good thing, even for the government agent, it provides documentation of the circumstances/events as well as acknowledging the use of power as legitimate.
Here’s an interesting article on 4A and borders.
http://www.law2.byu.edu/jpl/papers/v19n2_Jon_Adams.pdf
The border exemption is based on the Constitutional power to ““to regulate Commerce with foreign Nations.” To do so requires prevention of smuggling and entry of unauthorized persons.
Why would you have to be returned to the USA. You claimed that the Constitution does not extend beyond the shores of our nation.
Why can't Obama send a drone out to blow you and your sailboat up as you flee in international waters from a murder rap wherein you killed Nancy Pelosi? I mean if as you say your Constitutional Protections end at the border...
Funny I missed that section in the 4th Amendment.
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.
Funny, that clause is also used to regulate intrastate commerce [Wickard], and non-commerce [Raich]. — in fact, if the federal government tried to claim the same commerce-clause powers in foreign countries as they do in the states it would be regarded as an act of war... and the enforcement thereof would be either the waging of that war, or the post-war subjugation of the defeated. So then, it should be considered that the War on Drugs is waging war against the several states and therefore definitionally treason.
The President is Commander in Chief and is constitutionally empowered to wage war on the enemies of the United States, especially when authorized to do so by Congress.
He may have power to kill people for other reasons, but does not have the legal right to do so.
To carry your theory to another level, if I (an American citizen) were part of a terrorist group that murdered Nancy (or any other American) in a terrorist attack, after fleeing abroad is there any reason I should be treated any differently from any other enemy of the USA simply because I’m a citizen? Should my compadres be subject to military attack as illegal combatants, but I must be arrested and returned for trial by jury? Why?
None of which has anything to do with whether I trust the present occupant of the WH to make such decisions.
Let us say you had a business deal with Nancy and she stiffed you for 10 million bucks. You get angry and in a fit of rage hit her across the face and she falls and hits her head and dies. Regardless you flee on you sailboat and Obama hears the cry from Chuckie Schumer as he whips the populace up and they scream for your blood.
Now explain WHY Obama can't just blow you ass to Kingdom Come with a drone strike?
You claim the Constitution stops at the border.
It either does or it doesn't. What part of the Constitution stops Obama from doing such? No one will know outside of a few military people and the Joint Chiefs. No foreign government will know. So can the POTUS waste your ass and then go have lunch? OR does the Joint Chiefs have a duty to say Nope Can't do it because it violates this man's Constitutional Rights?
Ah, but what if you weren't the murderer and this was just the story told to justify murdering you without trial?
Moreover, would killing her be waging war?
You put far too much faith that power and legal exceptions will be a force for good and not evil.
Fleeing on my sailboat I suspect the Navy, or even the Coasties, could intercept and return me for trial. :)
I think the relevant issue is that the Constitution does not grant the President any such power. So while he might very well be able to do it, he would have no legal right to do so.
I do not claim that there are no constitutional restrictions on the president outside the USA, only that 4A does not apply for customs searches. Unless someone can find some evidence that warrants have EVER been required for customs searches, I think my point stands. This is not a new infringement on constitutional rights by the Obama administration, it is an extension of what the law has been since the Founding. Possibly an over-extension, to be sure.
As another example, the Coast Guard routinely stops, boards and searches ships. No warrant needed.
A couple years ago, a friend and I were returning from a 3 hour tour on his 26’ sailboat when the Coasties pulled up. They came aboard and searched pretty thoroughly. No warrant. This was FL coast.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.