Fourth Amendment

Government Spying Out of Control

The President and the leadership of both political parties have abandoned their oaths to uphold the Constitution.

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After President Richard Nixon was forced from office in 1974, congressional investigators discovered what they believed was the full extent of his use of the FBI and the CIA to engage in domestic spying. In that pre-digital era, the spying consisted of listening to telephone calls, opening mail, and using undercover agents to infiltrate political organizations and, as we know, break into their offices. Nixon claimed he did this for the protection of national security. He also claimed he was entitled to break the law and violate the Constitution. "If the President does it, that means that it's not illegal," he once famously said.  

Since no one was prosecuted on the basis of data stolen or retrieved by his spies, the courts rarely encountered this behavior and never had to rule on it, and thus it went largely unchecked. A few victims challenged the spying, but the Supreme Court ruled that without palpable harm, the challengers lacked the legal ability to complain in court—what judges call "standing."   

But many Americans did complain to Congress, which in 1978 enacted the Foreign Intelligence Surveillance Act, commonly called FISA. FISA provided that all domestic surveillance be subject to the search warrant requirement of the Fourth Amendment, except for spying on foreign agents operating in the U.S. For those cases, FISA established a secret federal court that has been authorized to issue search warrants to spy on foreign agents.

The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard—thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution—of probable cause of status. The status was that of an agent of a foreign power. So, under FISA, the feds needed to demonstrate to a secret court only that a non-American physically present in the U.S., perhaps under the guise of a student, diplomat or embassy janitor, was really an agent of a foreign power, and the demonstration of that agency alone was sufficient to authorize a search warrant to listen to the agent's telephone calls or read his mail.

Over time, the requirement of status as a foreign agent was modified to status as a foreign person. This, of course, was an even lesser standard and one rarely rejected by the FISA court. In fact, that court has rarely rejected anything, having granted search warrants in well over 97 percent of applications. This is hardly harmless, as foreign persons in the U.S. are frequently talking to Americans in the U.S. Thus, not only did FISA violate the privacy rights of foreigners (the Fourth Amendment protects "people," not just Americans); it violated the rights of those with whom they were communicating, American or non-American.

It gets worse. The Patriot Act, which was enacted in 2001 and permits federal agents to write their own search warrants in violation of the Fourth Amendment, actually amended FISA so as to do away with the FISA-issued search warrant requirement when the foreign person is outside the U.S. This means that if you email or call your cousin in Europe or a business colleague in Asia, the feds are reading or listening, without a warrant, without suspicion, without records and without evidence of anything unlawful.

The Patriot Act amendments to FISA also permit the feds to use anything they see or hear while spying in a federal court. The amended FISA statute permitting these warrantless searches of emails, telephone calls and postal mail expires at the end of this month. Last month, the House quietly voted to extend this dreadful authority for another five years, and in the next week, the Senate will consider doing the same.

What's wrong with Congress?

FISA gives the government unchecked authority to snoop on all Americans who communicate with any foreign person, in direct contravention of the Fourth Amendment. The right to privacy is a natural human right. Its enshrinement in the Constitution has largely kept America from becoming East Germany. Moreover, everyone in Congress has taken an oath to uphold the Constitution, which could not be more clear: "The right of the people to be secure in their persons, houses, papers, and effects…" shall not be violated, except via a warrant issued by a neutral judge upon the judge finding probable cause of crime. If we let Congress, which is a creature of the Constitution, change the Constitution, then no one's liberty or property is safe, and freedom is dependent upon the political needs of those in power.

The President and the leadership of both political parties in both houses of Congress have abandoned their oaths to uphold the Constitution. They have claimed that foreigners and their American communicants are committed to destroying the country and only the invasion of everyone's right to privacy will keep us safe. They are violating the privacy of us all to find the communications of a few. Who will keep us safe from them? Their behavior is committed to destroying the Constitution.

NEXT: D'Oh!

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  1. What’s wrong with Congress?

    Disfucntion. Self-concern. Corruption. After the 9/11 Commission seemed to lay the blame at state agents and agencies asleep at the switch, everyone wanted more security from government. And for decades now Congress has been actively shirking its responsibilities off on the courts or regulators in hopes none of the stink of bad government gets on them. They have purposely rendered themselves useless.

    1. Disfucntion.

      Excellent use of RC’z Law.

        1. THere jest plane evol.

    2. Wouldn’t it be simpler to answer what isn’t wrong with Congress?

      1. I got nuthin’.

  2. A few victims challenged the spying, but the Supreme Court ruled that without palpable harm, the challengers lacked the legal ability to complain in court?what judges call “standing.”

    Isn’t denying legal challenges because of insufficient standing in violation of the 1A’s right to petition government for a redress of grievances? Actually, even if you did have sufficient standing where you went to jail and became a serious felon by virtue of law, that still does not guarantee you will have your case heard in appeals.

    In fact, that court has rarely rejected anything, having granted search warrants in well over 97 percent of applications.

    This is why augmenting laws to require warrants ultimately make little to no difference.

    What’s wrong with Congress?

    Everything.

    If we let Congress, which is a creature of the Constitution, change the Constitution, then no one’s liberty or property is safe, and freedom is dependent upon the political needs of those in power.

    I’m sure they can find some clause in there to justify whatever they want. See? We’re not changing it, in fact, we’re upholding it! And well, if Congress is a creature of the Constitution.. maybe the constitution shares part of the blame. Jus sayin’.

  3. If you have nothing to hide, you have nothing to fear.

    [puke]

    1. If you have nothing to hide, you have nothing to fear.

      This is pretty much what that bimbo on Fox and Friends was saying this morning when Judge Napolitano came on to talk about it. I was hoping and praying that he’d punch her in the face for being so blatantly stupid.

      1. that bimbo on Fox and Friends

        Tulpa is on Fox and Friends? When did this happen?

        1. I haven’t been here long, but i’ve noticed that both tulpa and the plastic fantastics on Fox and Friends exhibit a similar brand of retardation that seems to stem from a false sense of superiority and invincible ignorance. Just an observation.

          1. false sense of superiority and invincible ignorance

            That is a beautiful turn of phrase.

      2. This is pretty much what that bimbo on Fox and Friends

        Which one?

        1. The one with the boobs that sits between the two boobs.

          1. The blonde one several?

  4. I notice Pedo-Bot hasn’t left the stink of his(?) Pedo-Botry on this thread. Perhaps there is fear of Government snooping lurking within Pedo-Bot?

    1. The government’s been “snooping within” Pedo-Bot?! EWWWWWWWWWWWW!

      1. I think that was Steve Smith, not the government.

    2. Wow, I never thought of it like that before.

  5. Any criticism of Tulpa is an explicit admission that he is right, and you are wrong. He’s a professor, you know.

    1. And probably makes more money than you, has 10 PhD’s, etc. etc.

      1. Hey lets not get confused with Dunphy.

  6. Congress can’t violate the Constitution. They took an OATH! Duh, Judge Napster!

    /overly trusting derp American Citizen

  7. In fact, that court has rarely rejected anything, having granted search warrants in well over 97 percent of applications.

    They’re letting terrorists operate with impunity!

  8. sad times. Since there are non american viewing this website, no one here can be protected by the 4th.

    1. What troubled times these are, when passing ruffians will say “Ni!” to an old woman.

      Even shrubbers are having difficulaties…

  9. What’s wrong with Congress?

    How much time do you have?

  10. “The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard?thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution?of probable cause of status.”

    The object of intelligence surveillance usually has nothing to do with prosecuting crimes in the first place, so what Napalitano says is the standard is not even applicable in most cases. From what I gather then, is that practically all foreign surveillace is a constitutional violation since a warrant for non-crime reasons cannot be obtained in the first place.

  11. “What’s wrong with Congress?”

    The number of representatives in the House is a problem. That number has not changed in 100 years. Today there’s 3 times the population.

    How can we have a voice, be heard, or represented, when We the People are reduced in effectiveness?

    The effort needed by citizens to reach other citizens, in a district, is increased. For example, getting 100 people to agree on an issue takes a certain amount of effort. Getting 300 people requires more effort, and with each Census, the number goes up.

    As the number of people within a district increases, each person’s value is diminished, because of the many more voices sounding, as to be drowned out. Concerns become marginalized, reduced, and simplified in order to be understood by the representative.

    While Mr. Napolitano is of the Libertarian view, and desires a reduced government, increasing the House membership may seem like increasing the size of government. However, it’s not necessarily so. Yes, numbers may increase, but then the compensation will decrease per representative. Furthermore, someone has already done research here: http://www.thirty-thousand.org
    and can expand on the benefits.

    As the numbers in the House increase, a new system of Regional capitol building centers can be built to bring Regional Congress to the People, where We can keep better watch over them. Eventually, Congress in Washington DC will end.

  12. Oliver Stone needs to humanize Adolf Hitler in his next biopic.

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  14. The terrorists are so abhorrent.

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