Friday, March 1, 2013

The FISA Amendments Act Is Clearly Unconstitutional; And Congress Doesn't Care


We've been discussing the now annual rush to re-approve the FISA Amendments Act, despite the fact that the original bill was on shaky constitutional ground, and it's been made much (much, much) worse due to a secret interpretation of what the law means (a secret interpretation that many in Congress apparently have no interest in finding out about). Andrew Napolitano, a former judge, has penned an interesting column laying out many of the reasons why the whole thing is completely unconstitutional. First, he notes that the establishment of FISA itself is likely a violation of the 4th Amendment: 


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.

Already troubling enough, but, as Napolitano notes, things weren't just left there. They've continued to stretch and change the conditions, taking it further and further into unconstitutional realms:
 
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.

It's just those Patriot Act amendments (the FISA Amendments Act) that is being debated right now. And given some of the questions being asked by politicians who understand the "secret interpretation" of the FISA Amendments Act, it appears that it actually gives law enforcement the ability to go even further. So it's not even just about emailing or calling your cousin in Europe, but as long as law enforcement (a) claims that it's related to a terrorism investigation and (b) they have no specific knowledge at the time of acquisition only that the communication is domestic -- then they can collect just about anything. So, under that interpretation, it appears that the NSA can just collect well, almost anything, by saying that it's all for the sake of a permanent and all encompassing terrorism investigation, and since they're just collecting absolutely everything, they have no specific knowledge at the time of acquisition that the communication is domestic.

Considering that Napolitano's argument starts from the idea that FISA itself is unconstitutional, looking at where we are now from where we started, we're no longer just in "unconstitutional" mode, in which we've tip toed over the boundary. We're now in a full on, 100% "let's mock the Constitution" mode. And, Napolitano, like many others, wonders why almost no one in Congress is willing to point this out:


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?

It's no secret that politicians use fear to increase their own power and to cut away at civil liberties. We have plenty of history that demonstrates that. It's just a real shame that so few people seem willing to speak out about this -- or that so few people even seem to care that the government has done this. - Tech Dirt

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