Justice and Fortitude

Big Brother’s Attack on the 4th and 1st Amendments

FOURTH AMENDMENT [U.S. Constitution] - ‘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.’

First Amendment - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What is FISA and why should we care? FISA is “Foreign Intelligence Surveillance Act”, and on July 10, 2008 Congress passed an updated amended version of the original bill that originated years ago from 1978 when Nixon permitted spying on activists groups, giving the government authority to eavesdrop on Americans’ conversations with foreign powers’ agents in intelligence investigations that basically gave up to a 1 year pass that was without a warrant. There was also a provision with a warrant that was overseen by the Foreign Intelligence Surveillance Court (FISC). However, the recent amendments this year virtually gutted the original version by sidestepping the courts jurisdiction. Coupled with this was the USA Patriot Act which was passed in 2001 and reconfirmed in 2006 that permitted wiretapping without warrants in communications.

The outcries over 1st and 4th amendments violation of our Constitution were muted by the 9-11 terrorists attack, and many allowed the controversy over eroded rights to fade in favor of ensuring domestic tranquility and protecting America. But could the same thing be achieved without cutting corners and more importantly without violating our rights, especially with the latest wide sweeping power the government has claimed for itself at its usurpation and unconstitutional hijacking of our guaranteed rights of personal liberties and privacy, specifically the guarantee of the 1st amendment for Congress to not make any law abridging the freedom of speech and the 4th amendment in its entirety?

In 2006, another amendment came into play called Terrorists Surveillance Act of 2006 and two other bills that wanted retroactive amnesty for communication companies the President authorized to become involved and which the FISA was considered the vehicle to conduct and review those communications.

Next comes the Protect America Act of 2007 that threw out the electronic surveillance definition in FISA and gave the government more latitude to wiretap when one of both parties were overseas. It also provided immunity to the phone companies by picking up the costs of any court challenges or suits and President Bush signed this into law last Aug.’07. The became a contentious issue, fearing that the Congress just handed the President a blank check that immunizes the phone companies. In fact, it has escalated into 2008 to the present reauthorizing of the bill with other amendments, few of which are good for Americans where it allows for domestic spying without warrants and freedom of the Telecom companies to be embedded parties with amnesty.

Congress did pass the President a victory of wide authority after they postured in an election year. The ACLU, Libertarians, and unhappy Ds and Rs, are all sounding the alarm bells with finger pointing at the erosion of individual liberty. The ACLU July website:

Gives the president broad new powers to spy on innocent Americans’ phone calls and emails – even when they have no connection to terrorism. It legalizes mass, untargeted and unwarranted spying on our international phone calls and emails.

· Restricts judicial oversight of the surveillance program. The FISA court will not know who, what or where will actually be monitored, and the government can continue a spying program even after it has been denied by the court.

· Provides retroactive immunity to the telecommunications companies for their role in the president’s domestic spying program. The test in the bill is not whether government certifications sent to the companies were actually legal – only whether they were issued.

(http://www.aclu.org/safefree/spying/35872res20080701.htm)

On July 9th, this ACLU entry:

“Senate Passes Unconstitutional Spying Bill And Grants Sweeping Immunity To Phone Companies” (7/9/2008)
The FISA Amendments Act of 2008 was approved by a vote of 69 to 28 and is expected to be signed into law by President Bush shortly. This bill essentially legalizes the president’s unlawful warrantless wiretapping program.

The FISA Amendments Act nearly eviscerates oversight of government surveillance by allowing the Foreign Intelligence Surveillance Court (FISC) to review only general procedures for spying rather than individual warrants. The FISC will not be told any specifics about who will actually be wiretapped, thereby undercutting any meaningful role for the court and violating the Fourth Amendment’s protection against unreasonable search and seizure.

The bill further trivializes court review by authorizing the government to continue a surveillance program even after the government’s general spying procedures are found insufficient or unconstitutional by the FISC. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever information was gathered in the meantime. A provision touted as a major “concession” by proponents of the bill calls for investigations by the inspectors general of four agencies overseeing spying activities. But members of Congress who do not sit on the Judiciary or Intelligence committees will not be guaranteed access to the agencies’ reports.

The bill essentially grants absolute retroactive immunity to telecommunication companies that facilitated the president’s warrantless wiretapping program over the last seven years by ensuring the dismissal of court cases pending against those companies. The test for the companies’ right to immunity is not whether the government certifications they acted on were actually legal – only whether they were issued. Because it is public knowledge that certifications were issued, all of the pending cases will be summarily dismissed. This means Americans may never learn the truth about what the companies and the government did with our private communications.

“With one vote, Congress has strengthened the executive branch, weakened the judiciary and rendered itself irrelevant,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This bill – soon to be law – is a constitutional nightmare. Americans should know that if this legislation is enacted and upheld, what they say on international phone calls or emails is no longer private. The government can listen in without having a specific reason to do so. Our rights as Americans have been curtailed and our privacy can no longer be assumed.”

(http://www.aclu.org/safefree/general/35928prs20080709.html)

One day later on July 10, the website reports a giant lawsuit.

ACLU Sues Over Unconstitutional Dragnet Wiretapping Law

“The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged,” said ACLU Executive Director Anthony D. Romero. “Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights. The new wiretapping law fails to provide fundamental safeguards that the Constitution unambiguously requires.”

In today’s legal challenge, the ACLU argues that the new spying law violates Americans’ rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it’s conducting the surveillance or whether it suspects any party to the communication of wrongdoing.

Plaintiffs in today’s case are:

· The Nation and its contributing journalists Naomi Klein and Chris Hedges

· Amnesty International USA, Global Rights, Global Fund for Women, Human Rights Watch, PEN American Center, Service Employees International Union, Washington Office on Latin America, and the International Criminal Defense Attorneys Association

· Defense attorneys Dan Arshack, David Nevin, Scott McKay and Sylvia Royce”

Ron Paul’s comments reported by Libertarian magazine “from reason to freedom”

Statement on HR 6304, the Foreign Intelligence Surveillance Act (FISA) Amendments, by US Rep. Ron Paul

“Madam Speaker, I regret that due to the unexpected last-minute appearance of this measure on the legislative calendar this week, a prior commitment has prevented me from voting on the FISA amendments. I have strongly opposed every previous FISA overhaul attempt and I certainly would have voted against this one as well.

The main reason I oppose this latest version is that it still clearly violates the Fourth Amendment of the Constitution by allowing the federal government to engage in the bulk collection of American citizens’ communications without a search warrant. That US citizens can have their private communication intercepted by the government without a search warrant is anti-American, deeply disturbing, and completely unacceptable.

In addition to gutting the fourth amendment, this measure will deprive Americans who have had their rights violated by telecommunication companies involved in the Administration’s illegal wiretapping program the right to seek redress in the courts for the wrongs committed against them. Worse, this measure provides for retroactive immunity, whereby individuals or organizations that broke the law as it existed are granted immunity for prior illegal actions once the law has been changed. Ex post facto laws have long been considered anathema in free societies under rule of law. Our Founding Fathers recognized this, including in Article I section 9 of the Constitution that “No bill of attainder or ex post facto Law shall be passed.” How is this FISA bill not a variation of ex post facto? That alone should give pause to supporters of this measure.

Mr. Speaker, we should understand that decimating the protections that our Constitution provides us against the government is far more dangerous to the future of this country than whatever external threats may exist. We can protect this country without violating the Constitution and I urge my colleagues to reconsider their support for this measure.”

CQ writes: “It is the most ambitious legislation of its kind in nearly 30 years, and the political calculus that it won’t matter that much in the end underestimates the extent of its flaws.” (http://www.cqpolitics.com/wmspage.cfm?docID=news-000002904820)

The Huffington Post: Fighting the Unconstitutional Spying Law

This week, a cynical and sniveling Congress handed President Bush a crowning jewel in his career-long attack on civil liberties in the form of the FISA Amendments Act of 2008 (FAA).  As a result, the Fourth Amendment was essentially eviscerated.

I like the comment under the article:

“Phone call from New York to Paris passes through government hard drive
Computer analyzes phone call (a.k.a. searches it)

“Flags” the communication based on specific words (which words? decided by whom?)

Government agent listens to that communication (establishes it is an American citizen, logs that communication, files it, makes a determination as to whether it warrants further investigation)

At this point, an American citizen has had his private communications listened to, logged, recorded and analyzed (a.k.a. searched and seized) WITHOUT A WARRANT ISSUED IN A COURT OF LAW BY A JUDGE, BASED ON PROBABLE CAUSE.

Then, AFTER the search has already happened, the agent takes his findings (from the search) and applies for a warrant to perform the search he has ALREADY COMPLETED.

The 4th amendment clearly protects 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.”

Meanwhile, the “need” for such powers rests in the idea that we will catch “terrorists” dumb enough to communicate openly on the phone or Internet about their nefarious plans. Not a single case of catching one of these buffoons has been presented in defense of this program, and with good reason. Meanwhile, the potential ABUSES that are much more likely to occur, can be listed ad nauseam.”

Libertarian Party spokesman, Andrew Davis, writes on an LP Press release July 8th, “Civil liberties were violated, and only 28 senators cared to see justice served.”

The Libertarian Party has repeatedly called for the rejection of any amendments to the Foreign Intelligence Surveillance Act that empowered the government to spy on American citizens and granted immunity to companies complicit in illegal surveillance operations.

Libertarian Bob Barr’s blog indicates: “Ultimately we lose some freedom with virtually every new law or government regulation, but this particular law, FISA, is the granddaddy of all invasions of our privacy.”

http://blog.bobbarr2008.com/2008/07/16/bob-barr-2008-statement-on-new-privacy-coalition/

Barr pointed out that Obama, changed his mind and voted for the amended version of FISA, “but when the Democratic congressional leadership decided to concede to almost all of the administration’s demands in rewriting the Foreign Intelligence Surveillance Act, Sen. Obama went along with the crowd.”

http://2008central.net/2008/07/05/libertarian-candidate-bob-barr-hits-obama-on-fisa/

Obama earlier was against FISA. In an interview on ABC, he wanted terrorists tracked down within the limits of the Constitution.

The Indianapolis Star’s July 16th column by Saunders indicated there were 23,000 Obama supporters wanting Obama to vote NO, but instead he voted YES as a ‘compromise’. She then asked ACLU attorney, Melissa Goodman that the bill indicated only targeted selection was involved, but Goodman said “targeted” was never defined and anyone, including Journalists who may wish their sources protected when talking overseas would be at risks and that the courts were removed from the process. It’s also argued that the telephone companies break the right of expected privacy when handing over info to the government.

The award for the most bald-faced lie on the House floor Friday, however, goes to Speaker Nancy Pelosi (D-CA), who insisted that the bill “does not allow warrantless surveillance of Americans.” She is wrong. It does.

The broader spying powers given to the executive branch by the compromise bill require intelligence agencies to “target” foreigners. But if those foreign “targets” happen to call or e-mail Americans, those communications are fair game. And since the Foreign Intelligence Surveillance Court is only permitted to review the broad targeting procedures government eavesdroppers use to determine that a target is abroad, and not the substantive basis for authorizing surveillance of any target, anyone is a potential target.’

In case you are wondering why there are flip-flops and cave-ins by lawmakers, you may be surprised at the background research showing how influence peddling may mix with congressional votes, coming in Part II of this Justice & Fortitude report.

(sources: Lp press release,7-08-08, aclu.org,7-10&7-09,,7-01, abcnews.go.com,rawstory.com,2008 central.net,lpin.org,bobbarr2008.com,indpls.star,7-16-08, us constitution, reason to freedom.com,6-28-08,huffingtonpost.com,7-12-08, wikipedia,cqpolitics.com,6-25-08)