A Comedian’s View of the Constitution

For some reason, the Democrats’ Senate leadership put Al Franken on the Judiciary Committee. So far, Franken hasn’t let ignorance get in his way. On Sept. 23, two Obama administration officials appeared before the Judiciary Committee to testify on the extension of key provisions of the Patriot Act. One of those provisions, the “roving wiretap,” allows investigators in terrorism cases to obtain warrants to eavesdrop on all phones used by a particular person. This is a tool that has long been used in organized crime investigations and is not really controversial. Nevertheless, Franken took the opportunity to demonstrate his knowledge of the Constitution to Assistant Attorney General David Kris:

Senator Franken?
FRANKEN: Thank you, Mr. Chairman.
Mr. Fine, I’m going to ask you a question soon.
(LAUGHTER)
FINE: OK. I’m waiting for it.
FRANKEN: Yes.
But, first, Mr. Kris, I’m not a lawyer like all the — my colleagues here now. Nor a careful lawyer like you singled out.
(LAUGHTER)
(CROSSTALK)
FRANKEN: But I did some research and most Americans aren’t lawyers.
(LAUGHTER)
So I got a question on the roving wire tap thing. And I think I understand why it’s important, because the terrorist and other people you suspect of being terrorists use different phones, right?
KRIS: Yes.
FRANKEN: OK, and that’s why it’s there.
But under the Patriot Act, the roving wiretap provision does not require law enforcement officials to identify the individual or the phone or the computer that will be tapped, is that right?
KRIS: No, I don’t think — I don’t think so. The statute requires, roving or not, that the government identify — provide the identity if known or a description of the specific target. So…
FRANKEN: A description of it, but not the actual…
KRIS: Not always the name, but you have to say something about the specific target.
FRANKEN: OK. Well, that’s what brings me to this, because they give you this when you get in the Senate, it’s the Constitution.
(LAUGHTER)
And I was sworn to uphold it, or support it anyway, and protect it.
This the Fourth Amendment: “The right the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrant 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.
Now, it seems to me that’s pretty explicit language, and I was wondering if you think that this is consistent with the Fourth Amendment.
KRIS: I do think it is, and I kind of want to defer to that other third branch of government. The courts in looking at…
FRANKEN: I know what they are.
(LAUGHTER)
Go ahead, sir.
(LAUGHTER)
KRIS: The courts prior to FISA — sorry, prior to FISA, every court of appeals to squarely consider the question had actually upheld warrantless foreign intelligence surveillance. That is, without an advance court order. And the Supreme Court had declined to hold that a warrant was required in the so-called Keefe (ph) case for foreign intelligence surveillance. So I think you begin with that baseline.

This is a point that I made repeatedly when liberals claimed that the NSA warrantless surveillance program was illegal, as, for example, here. It’s good to see that the Obama administration agrees with my legal analysis and not with the Bush administration’s liberal critics.

FISA then, by requiring advanced judicial approval, goes above and beyond what the Constitution requires for this kind of foreign intelligence surveillance.
I do think there is an argument, and probably a good argument, that the language that I read to you before, that even if you cannot identify the particular target but that you describe the specific target, that it would satisfy the particularity clause that you just cited.
FRANKEN: OK, thank you.

Byron York adds that when Franken made his joke about knowing what courts are–he is, after all, a member of the Senate Judiciary Committee–Kris muttered, “This is surreal.” One suspects that Franken’s comedy routine will wear thin long before his six-year term is up.
Still, one can only commend Franken for reading that copy of the Constitution they gave him when he assumed office. Maybe he’ll let us know whether he finds anything about owning automobile companies and controlling American citizens’ health care.

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