Federal Court Rules Protecting America is Unconstitutional
Posted on August 17, 2006
The ACLU has convinced a federal judge that monitoring overseas communications of terrorists is against the constitution. Despite the fact the preamble lists defending the nation as an acceptable federal government function, the ACLU and US District Judge Anna Diggs Taylor said that the risk “innocent” communications could be intercepted far outweighed the risk of Al Qaeda attacking the United States. Despite programs such as ECHELON, CARNIVORE, and others that existed happily (albeit controversially) under the Clinton Administration, the possibility that George Bush might actually defend the country is a threat the Constitution cannot bear.
Despite the evidence, the media still calls the case a matter of “warrantless wiretapping” despite the fact that the clear intention is to monitor international calls. This ongoing deception is an attempt to create hysteria that the US is becoming a “police state” and that the treats are from Republicans, not terrorists. This is the same political quarter that brings you the idea (despite all evidence to the contrary) that George Bush and not Al Qaeda is behind 9/11.
The judge in this case, an appointee of Jimmy Carter, doesn’t seem to understand the difference between overseas surveillance and domestic surveillance. Will the CIA start needing warrant the next time the spy on a terrorist overseas?
According to the ruling:
The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.
Let’s skip past the FISA court idea, one that is still in dispute publicly and in the courts (other district courts either ruled for the government or declined to rule at all) and discuss the First Amendment issue. Debating what due process should exist for wiretapping is something that can and will take place, however, the idea that plotting terror attacks against the citizens of the United States of America could even possible be protected by the First Amendment should make everyone who cares about the safety of their family cringe. What other possible meaning is there to that phrase?
Many scoffed at the idea of framing resistance to the Patriot Act and the “warrantless wiretapping” programs as an attempt to establish an “Al Qaeda Bill of Rights”, however, with Judge Taylor’s ruling and the help of the ACLU, the shroud of the First Amendment has been extended to protect those who plot to kill Americans.
John Bambenek is an academic professional for the University of Illinois and a columnist for the Daily Illini and blogs at Part-Time Pundit deep from the corn fields of Illinois.
. He is the current owner of BlogSoldiers, a blog-only traffic exchange.
» Filed Under 1st Amendment, ACLU, News, War On Terror
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16 Responses to “Federal Court Rules Protecting America is Unconstitutional”
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Syndicate Me
I would be willing to bet that some libs would be happy if the US was attacked. That would allow them to say Bush wasn’t protecting us and we told you the Iraq war created more terrorists.
The first sentance of your story is complete [edited] and you know it. No one is saying that monitoring any communications is against the constitution. The only question is can our government do this without court approval. I would love to see someone here explain why our government can’t get a warrant for this, even from the FISA court which only rejected a handful of applications in the last 25 years.
If monitoring violates the First Amendment, as this court suggested, no warrant would be enough.
By bringing in the First Amendment, it attempted to make the entire endeavor unconstitutional… warrants or not. You can’t get a warrant to violate free speech.
camanintx,
“The only question is can our government do this without court approval.”
Law Link
“I would love to see someone here explain why our government can’t get a warrant for this, even from the FISA court which only rejected a handful of applications in the last 25 years.”
Maybe Bush feels that since national security info is being passed out like candy at a Christmas party, it would be wiser to keep as much as he can closer to the breast.
Now a question for you… Were you harping like this when Carter and Clinton were doing the exact same thing, for their own agenda, rather than for national security?
jcb said on August 17th, 2006 @ 10:06 pm –
>>>>>If monitoring violates the First Amendment, as this court suggested, no warrant would be enough.
Sorry, my comment was cut off, and I think the arrows did it. Here it is again –
jcb said on August 17th, 2006 @ 10:06 pm –
“If monitoring violates the First Amendment, as this court suggested, no warrant would be enough.”
IMO, this is not a 1st Amendment free-speech issue because the speech concerned is private, not public. IMO, it is a 4th Amendment issue. The 4th Amendment says,
“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.”
Though the founding fathers knew nothing about telephone communications, I think that any reasonable modern interpretation of the 4th Amendment would cover telephone communications. The 4th Amendment clearly indicates that Warrants are necessary for performing searches. We should not rewrite the Constitution for the sake of expediency.
Also, the communications are not entirely overseas but connect to the US.
I think that the ACLU and the court are right on this one.
loboinok,
The US Code reference you give allows for warrantless monitoring only if “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” Since the TSP in question targets communications where one party is clearly within the US, it fails this test and therefore requires a warrant. You say the same was done by Clinton and Carter but their executive orders specifically stated that any monitoring had to comply with this section, something Bush failed to do.
NoLibs,
You should go back and bone up on your grade school grammar. The word “against” immediately before “unreasonable” is a preposition, making it a modifier and not a “key word”.
In my mind, this is a fifth amendment issue, concerning due process. Are foreign citizens, especially enemies of the state, afforded due process? Does the Constitution apply to illegal aliens or those who are enemies, threatening the United States?
In order to say that the 4th amendment applied to this case, then one would have to determine if the 5th amendment applied. Granted, if the recipient is a U.S. citizen, even if he is committing treasonous acts, the Constitution would apply. That being said, a warrant could be issued by FISA after the reception.
At any rate, I do not believe that this ruling should in any way be construed by our intelligence agencies to impede the interception of international calls, especially those that are from suspected operatives who are foreign citizens or suspected of treason.
How far do we carry this? Was the interception of German communication in WWII unconstitutional? Whether the liberals want to admit it or not, we are at battle with a force that has already infiltrated our borders and has already declared war on our nation and our culture. We will have to fight on the U.S. front, but we can minimize the battles fought by stopping events before they can happen. Telephone interception for the sake of national security as is evident in these cases is one tool used in this war.
badbeans,
First, no one that we know of, certainly not the plaintiffs, have been deprived of due process, so exactly where does the 5th amendment fit in here?
Second, the question at hand is can the government intercept domestic communications without a warrant. No one has suggested that international calls should not be monitored, nor domestic calls provided they have a warrant.
Third, since the FISA statute at the heart of this issue was not enacted until 1978, there is no arguement that intercepting German communications were legal so stop repeating this.
Camanintx,
Please answer the following questions:
1. Are Constitutional rights afforded to non-citizens? If so, do you believe that they should be?
2. Should the obtaining of a warrant preclude any wiretapping of international communications of citizens of the U.S. suspected of treasonous acts? Or should wiretapping be allowed, with the understanding that any evidence presented at a treason trial would have to have a warrant issued by FISA in order for that evidence not to be thrown out?
BTW, I’ll admit that in retrospect my thoughts on the 5th amendment were did not have a real bearing on this discussion, and thus I should have probably left them out.
Of course wiretapping should be allowed when citizens of the US are suspected of treasonous acts. That’s called probable cause and is generally all you need to get a warrant. A better question is, if you allow the government to monitor domestic communications without a warrant, do you trust them to use this power appropriately?
camanintx,
“The US Code reference you give allows for warrantless monitoring only if “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” Since the TSP in question targets communications where one party is clearly within the US, it fails this test and therefore requires a warrant.”
The Patriot Act, I believe, changed that.
FISA Court of Review
Do you know if the patriot act made an amendment to the law in question? I have not heard that it did and a direct Amendment and not administration interpretation would be necessary for Bush to disregard a law. Bush should have brought the issue before Congress for them legislate on it. If I remember right he did consult a number of members and they failed to inform him that he needed to amend existing code. I wonder what their excuse is.
The Patriot Act made no such changes. Read it for yourself here
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