Monday, October 15, 2007

War or No War, Surveillance Without Warrants is Unconstitutional -- Period!


Documents Reveal Pentagon Sought the Personal and Financial Records of Hundreds of Its Civilian Employees With 'National Security Letters' Instead of Court Subpoenas -- A Clear Abuse of its Authority and a Violation of the Law, ACLU Says

Copy of U.S. Constitution

The Constitution of the United States, contrary to popular belief, is the supreme law of this country, under which all other laws are subservient. It says so right in Article VI, Section 2. And the Fourth Amendment of the supreme law of this nation says quite explicitly that the people's right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" without the prior issuance, upon a finding of probable cause by a court of law, of a warrant for such searches and seizures. The courts, from the Supreme Court on down, have ruled consistently since 1967 that the government must obtain warrants for surveillance of Americans' private electronic communications. So why is no one besides this blogger screaming bloody murder that President Bush's warrantless surveillance program violates the Constitution? (Image courtesy Cornell University Law School)

(Updated 5:15 a.m. EDT Wednesday, October 17, 2007)

By Skeeter Sanders


Supporters of President Bush's highly controversial warrantless surveillance program have been insisting for months that the program is legal, despite a unanimous 1972 decision by the U.S. Supreme Court that such surveillance violates the Fourth Amendment.

They've pointed out repeatedly that the high court's decision applied only to national security matters involving domestic affairs. And, in fact, the justices specifically declined to decide whether their ban on warrantless eavesdropping also applied to national security cases involving foreign affairs.

But the president's supporters have forgotten that the U.S. Court of Appeals for the District of Columbia -- the nation's second-highest court -- ruled in 1975 that even in national security cases involving foreign affairs, the government still must, under the Fourth Amendment, obtain a warrant before it can eavesdrop on the electronic communications of Americans.

Then-President Gerald Ford chose not to appeal the ruling to the Supreme Court, knowing that he would lose if he did so. Instead, he ordered the Justice Department to comply with the appeals court's decision, which has never been legally contested by any of Ford's successors -- not even Bush -- so the ruling still stands to this day.

Why the Continued Denial of Warrantless Spying's Unconstitutionality?

So why is no one in Congress, nor in the mainstream news media, nor even the nation's civil-liberties watchdog groups -- including the American Civil Liberties Union -- screaming bloody murder about the blatant unconstitutionality of Bush's warrantless surveillance program? Why won't any of these so-called "defenders" of Americans' constitutional rights and freedoms say what this blogger has been saying over and over and over again for the past two years?

What is it going to take to get the message through to these people that Bush is violating the supreme law of this country, the Constitution of the United States -- and his oath of office to "preserve, protect and defend" it -- by ordering government surveillance om Americans' telephone and Internet communications without first obtaining court warrants, which is mandated by the Fourth Amendment of said supreme law?

Documents Reveal Pentagon Sought Personal Data From Hundreds of Its Employees

Meanwhile, the American Civil Liberties Union made public over the weekend thousands of heavily-censored copies of Pentagon documents revealing that the Defense Department sought personal, financial and credit records of its civilian employees, in likely violation of several federal laws.

The documents, which the ACLU obtained through a Freedom of Information Act lawsuit, show that the Defense Department issued over 400 so-called "national security letters," or NSLs, following the September 11, 2001 terrorist attacks, which the civil liberties watchdog group argues is an overreach of its authority under the Posse Comitatus Act of 1878, which bars the military from engaging in domestic law enforcement.

The documents included a review by the Pentagon of the secret letters it sent out after the 9/11 attacks seeking financial records of individuals -- which found that the program lacked coordination and oversight.

Recipients of the NSLs -- including telephone companies, Internet service providers, banks and the three major national credit-reporting bureaus -- were barred under a provision of the USA Patriot Act from disclosing to customers under investigation that their records were being sought by the government.

That provision was recently struck down as an unconstitutional breach of the First and Fourth Amendments by a federal district court judge in New York.

"Once again, the Bush administration's unchecked authority has led to abuse and civil liberties violations," ACLU Executive Director Anthony Romero said in a statement released Sunday. "The documents make clear that the Department of Defense may have secretly and illegally conducted [domestic] surveillance beyond the powers it was granted by Congress."

Not to mention the Constitution.

Bill to Rein In Warrantless Spying Doesn't Go Nearly Far Enough

While this blogger applauds the decision by two House committees last week to ignore Bush’s demand to renew without restrictions a temporary law empowering the White House's broad eavesdropping authority and instead empower federal judges to oversee the National Security Agency's electronic surveillance program, the measure doesn't even begin to address the broader constitutional issue.

At no time have the chairmen of the House Judiciary and Intelligence committees -- Representatives John Conyers (D-Michigan) and Silvestre Reyes (D-Texas), respectively -- sounded the alarm about the warrantless eavesdropping program's illegality under the Fourth Amendment.

Neither, for that matter, have their counterparts in the Senate -- athough Senator Patrick Leahy (D-Vermont), chairman of the Senate Judiciary Committee, vowed Monday to closely question Attorney General-designate Michael Mukasey about the wiretapping program and the treatment of suspected terrorist detainees at Guantanamo Bay, Cuba.

But I do have to give them credit: They refused White House demands to include provisions to make the warrantless program permanent and to provide retroactive legal immunity to telecommunications companies that gave the NSA personal information on their customers without warrants.

Telcos That Turned Over Customer Records Without Warrants Broke Privacy Law

The telecommunications companies don't deserve any such immunity, for they clearly violated not only the Fourth Amendment right of their customers to not have their telephones tapped by the government without warrants, but they also flat-out violated the federal Electronic Communications Privacy Act of 1988, which explicitly bars them from turning over their customer records to the government without a court-issued warrant or subpoena.

The telecommunications companies' vulnerability to privacy lawsuits was blown wide open by two federal court rulings in recent weeks that parts of the USA Patriot Act -- under which the companies were required to turn over the records -- are unconstitutional.

Adding to the controversy, it was revealed on Tuesday that Verizon Wireless -- the nation’s largest cellphone carrier -- recently sent letters to its customers informing them that it would begin sharing information from their calling records with its “affiliates, agents and parent companies.”

Disclosure of the letters immediately triggered fears among privacy advocates that those records will also be shared with the government.

Brian Ashby, associate general counsel for Verizon, insisted to The New York Times that the company would share its customers' calling data only among Verizon divisions, strictly for marketing purposes and that customers who don't want their personal data to be shared have 30 days to “opt out” of the program.

NSA Asked Qwest for Customer Records Nearly Seven Months Before 9/11, Ex-CEO Says

But while those companies that did cooperate with the government in its unconstitutional spying program are now in legal hot water, one company that refused to do so is incurring the wrath of the White House.

That company -- Qwest Communications -- instead deserves an award for standing up for the Constitution and the rule of law by defending their customers' right to privacy.

Former Qwest CEO Joseph Nacchio has accused the government of "punishing" the company by withdrawing offers for multi-million-dollar contracts after Qwest refused to participate in the NSA's warrantless eavesdropping program, contending --rightly, in this blogger's opinion -- that the program is illegal.

In a bombshell revelation, Nacchio, who's appealing a criminal conviction for insider trading, said in court documents made public last week that the NSA approached Qwest in late February 2001 about participating in a warrantless surveillance program to gather information about Americans' phone records -- nearly seven months before 9/11.

USA Today reported in May 2006 that the NSA had been secretly -- and without court warrants -- collecting the telephone records of tens of millions of Americans, using data provided by major telecommunications firms, including Verizon, AT&T and BellSouth, all of whom now are vulnerable to a blizzard of privacy lawsuits. AT&T, in fact, already has been sued.

Details about the NSA program were censored from the documents, but Nacchio argues that Qwest's refusal to take part in the program led the government to retaliate against the company by canceling a separate contract with the NSA worth hundreds of millions of dollars.

Nacchio was convicted in April for selling shares of Qwest stock in early 2001 just before the company's stock price plunged amid financial problems. If his account of the NSA approaching Qwest months before 9/11 is accurate, then the former Qwest CEO has put the lie to the Bush White House's six-year-old citation of 9/11 as justification for its warrantless surveillance program.

"It's inappropriate for the government to be awarding a contract conditioned upon an agreement to participate in an illegal program," said Kurt Opsahl, a senior staff attornty for the Electronic Frontier Foundation, which is suing AT&T under the Electronic Communications Privacy Act.

It's Time to Force Bush to Obey the Constitution and Obtain Warrants for Wiretaps

The White House and the Justice Department have been on a public-relations offensive, with Bush blasting the House bill as a step that “would take us backward” and demanding that Congress make permanent the law it passed just before its August recess that significantly reduced the role of the Foreign Intelligence Surveillance Court and broadened the NSA's ability to listen to foreign-based communications without court warrants.

“Terrorists in faraway lands are plotting and planning new ways to kill Americans,” Bush said. “The security of our country and the safety of our citizens depend on learning about their plans. The Protect America Act is a vital tool in stopping the terrorists, and it would be a grave mistake for Congress to weaken this tool.”

The dangers posed by terrorist organizations such as al-Qaida are very real. But it's time for Congress to stop kowtowing to Bush's Joe McCarthy-style "terrorist-behind-every-mailbox" rhetoric and force him to obey the Constitution he is bound by his oath of office to "preserve, protect and defend." The Fourth Amendment clearly mandates the government to obtain warrants for electronic surveillance, regardless of whether America is at peace or at war.

The fact that America is at war -- which Congress, under its exclusive authority under the Constitution, did not declare -- does not give the president the right to spy on Americans without court warrants. Nor does it give him the right to disobey a direct order of the nation's highest court -- handed down 35 years earlier -- that the government must obtain warrants for electronic eavesdropping.

Article VI of the Constitution says quite explictly:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

"The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."


It's time to tell Bush in no uncertain terms that he's not above the supreme law of the land. "You want to search my house? You want to tap my phones? You want to read my e-mail? Get a warrant!"

# # #

Volume II, Number 52
Copyright 2007, Skeeter Sanders. All rights reserved.













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