Al Franken reads the Fourth Amendment to DoJ official at PATRIOT Act hearings

Al Franken's Senate career just keeps on getting better: this week he read the Fourth Amendment ("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.") aloud to a high-ranking Department of Justice official who was making the case for renewing the PATRIOT Act's provision for roving wiretaps.
"That's pretty explicit language," noted Franken, asking Kris how the "roving wiretap" provision of the Patriot Act can meet that requirement if it doesn't require the government to name its target.

Kris looked flustered and mumbled that "this is surreal," apparently referring to having to respond to Franken's question. "I would defer to the other branch of government," he said, referring to the courts, prompting Franken to interject: "I know what that is."

Kris explained that the courts have held that the law's requirements that the person be described, though not named, is sufficient to meet the demands of the Constitution. That did not appear to completely satisfy Franken's concerns.

Al Franken Reads the 4th Amendment to Justice Department Official (via Greg Laden)


  1. Seems like a reasonable request of Senator Franken, as the constitutionality of legislation has been sufficient in the past to justify it’s existence, or the contrary. Keep at it, Al!

  2. We are soooooo fortunate to have someone like Al Franken in the Senate. I have always hoped for a true hero like Al to come along and inject some common sense into our government, and he is showing a willingness to stand up for our rights that is truly courageous. Standing up for our rights appears to be a concept that truly shocks and scares most of our government officials. All citizens should be grateful and continue to support Al and what he is trying to do. It’s time to get angry at how greed and corporatism has taken over our nation.
    Thank You Thank You Thank You Al!

  3. I tend to agree with Franken, but when I saw this video, I couldn’t help but agree with DOJ attorney. Franken agrees with the concept of a roving wiretap, he said so during his questioning. It makes sense. You tap a person, not a phone. That way, the person you’re gathering information on, can’t avoid surveillance and force you to go back and get a new warrant based on the exact same information of the previous warrant you were issued for the new disposable phone. Franken wants to avoid dragnets, which is good thing. However, I don’t know what Franken’s obsession with having the name of your target is, as long as you can uniquely identify him, like the DOJ official said. Why shouldn’t I be able to get a roving wiretap for “the guy that lives at 232 Maple, Riverdale OH” or “the man dressed in white attending the meeting with suspect Mr. Jones on 3 October”? As long as the evidence holds muster during judicial review for the warrant, what’s the deal?

  4. That “surreal” comment made the story for me. Seems typical of beltway conventional wisdom. How insane to bring up the Constitution — at a time like this!

  5. The comment was surreal to Kris because he had made the same constitutional argument against warrantless wiretap under the Bush administration – in fact he is credited with “the most thorough and careful — and, for those reasons, the most devastating — critique anyone has offered of the DOJ argument that Congress statutorily authorized the NSA program.”
    So, yeah, it was surreal to him, to find himself having to answer for a program he is personally against and argued for that third branch to stop.

  6. It’s high time somebody decided the Constitution was worth defending. The Supreme Court, at least its conservative wing, has decided that the convenience of the executive branch was sufficient grounds to declare just about anything constitutional. Of course, this was while Republicans controlled the government. I’m waiting for the day someone in the Obama administration gets sued for doing precisely the same thing the Bushies have been doing for years. Antonin Scalia doing a back flip with a half-twist would be something to see.

  7. I love that Franken is there and that he is defending the constitution, but, since he’s talking about the axplicit language of the amendment, I can’t quite see that he has any argument at all.

    He’s rebutting a provision that allows warrants to be submitted for people who may not be named, but may instead be only described. He is rebutting this by reading from the constitution, which says, as he quotes:

    “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.”

    I’m not a lawyer either, but it seems to me that if the constitution uses the word “describing,” he can’t argue that it’s unconstitutional that warrants be issued for people with only descriptions given.

    I wish that the whole PATRIOT Act were scrapped, and I wrote to my congressman and senator about the JUSTICE Act, but I don’t quite see Franken’s argument.

  8. I’ll personally read the 10th Amendment to Franken when he votes to fund health care, social security, medicare, or a host of other programs not specified in the Constitution:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    I’m not arguing the merits of those programs. I’m saying it’s a little late and a lot hypocritical to be concerned about any obvious plain text interpretation of the Bill of Rights.

  9. And I’m up while the dawn is breaking,
    Even though my heart is aching.
    I should be drinking a toast to absent friends,
    Instead of these comedians.

    A toast to Sen. Franken!

    — MrJM

  10. @Jlevetin:

    He just has to respond with:
    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;”

  11. Samsam:
    I’m not a lawyer either, but it seems to me that if the constitution uses the word “describing,” he can’t argue that it’s unconstitutional that warrants be issued for people with only descriptions given.

    Doesn’t that make this extra-retarded, then? I mean, if it’s the plain language that clarifies Franken’s argument, then Kris should have just said that instead of going on a long digression about “the third branch.”

    Surreal indeed, right, if Kris could have just said, “well, the 4A says right there that you only have to describe the person in order to get a warrant?” Even if Franken already understood this, I think it’s an important moment for Franken to have illustrated the disconnect between DC and plain-language interpretation of the Constitution.

  12. I think it all hinges on what is meant by the word describe.

    Is it ” the white male 50 year old individual residing at 125 elm street with red hair seen driving a blue pickup truck past the 7-11 as seen in this photograph” or is it ” anyone who says the word airplane over the phone ” or “anyone who talks to bob”?

    Those are all descriptions aren’t they?

  13. #21 has it right, I believe. Requiring a name makes it very clear that the subject of the warrant must be an individual. Requiring “a description” alone can be twisted to mean pretty much any group of people that the DoJ wishes to monitor.

  14. I might have to move back to MN just to have a totally awesome senator. I knew he was going to be good when I read “why not me” so many years ago.

    Karl Levin and Debbie Stabenow: why can’t either of you grow a spine and do what you’ve been elected to do? You are teh suck.

  15. @Rob

    I re-assert my contention that all branches of government have over-stepped their Constitutional bounds. A valid argument is that the Constitution lists exactly what powers are meant by “General Welfare.”

    As James Madison described the limitations on interpretation of the general welfare clause, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one….”

    Patriot Act … General Welfare
    Drug Laws … General Welfare
    [Insert Law Here] … General Welfare!

  16. @25 Where in the constitution does the Founding Fathers authorize an Air Force? I see an “Army.” I see a “Navy.” I don’t see an “Air Force.”

    We should ban the Air Force.

  17. To be fair, the General needs a lot of welfare. He’s got a lot of folks under his command, like Private Enterprise.

  18. As long as the evidence holds muster during judicial review for the warrant, what’s the deal?

    The part of the constitution about the -three- coequal branches answers your question. Franken is doing his job, brilliantly.

  19. How cool! How neat! Maybe we want to read ALL of The Constitution. Seperation of powers… to the STATES and her’s one: The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

    that would give us thousabds of Congressmen/women. Then see who and what rules.

  20. So if the description is “looks like Mao” that’s OK? The reason I brought it up was a Puerto Rican spied on as “Mao” he found out when he requested the FOIA (or was it FOIL – New York’s) that described him working in archaeology. In some South American countries, an Asst. or District Attorney has to be there when a warrant is served. Following John Lennon must have been hard…there’s Zippies and Hippies and Lennon…here on the State University of New York’s Stony Brook campus then now named Stony Brook University.

  21. The Constitution and Bill of Rights. Gotta love them.

    That Franken reading selectively from them makes news is a wonderful thing. Besides re-electing Ron Paul who can we vote in to read the rest of it to these over reachers?

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