Monday, February 18, 2008

Finally! Constitution Wins, GOP Fearmongering Loses In Terror War

House Democrats Stand Firm and Refuse to Reward Telecom Firms With Immunity From Lawsuits for Turning Over Customer Records to the Government Without Court Warrants, in Violation of the Fourth Amendment; GOP Walkout Proves Beyond Doubt Republicans' Disregard for the Bill of Rights in the War on Terror

Republican members of the U.S. House of Representatives stage ...

Republican members of the House of Representatives stage a walkout and a news conference at the Capitol in Washington last Thursday, in protest over the refusal of their Democratic counterparts to approve surveillance legislation that includes a provision granting immunity to telecommunications firms from lawsuits over the firms' turning over their customer records to the government without having first required the government to produce court warrants. This blogger has insisted for more than two years that the practice violates both the Fourth Amendment of the Constitution and the 1986 Electronic Communications Privacy Act. Now, by staging their walkout, the Republicans have revealed their blatant disregard for the rule of law and for the Constitution they are bound by their oath of office to uphold, support and defend. (Photo: Jonathan Ernst/Reuters)

By Skeeter Sanders

If there were any lingering doubts that the Republican Party in 2008 bears no resemblance to the Republican Party that was co-founded in 1854 as an anti-slavery, pro-human-rights party, those doubts were removed in dramatic fashion last week.

In a display that revealed just how far the GOP has strayed from its original purpose, Republican members of the House of Representatives staged a walkout Thursday after House Democrats refused to bring up for a vote a bill to extend the controversial Protect America Act that authorized the Bush administration to implement electronic surveillance on suspected terrorists' telephone and Internet communications with Americans without court warrants.

Bush objected to extending the Protect America Act unless it contained a provision shielding telecommunications companies from invasion-of-privacy lawsuits stemming from the companies' turning over their customer records to the government without first requiring the government to produce court warrants.

That provision is unconstitutional on its face. It deprives the American people of their First Amendment right to petition their government -- in this case, the court system -- for the redress of grievances; namely, the government spying on them without first obtaining a court warrant nor with any probable cause to seek a court warrant in the first place.

That standard is clearly required under the Fourth Amendment of the Constitution -- which a unanimous U.S. Supreme Court declared in 1972 the government must follow; if it doesn't, then the government is breaking the law -- period.

Bush Seeks to Shield Lawbreaking Telecoms

By failing to require the government to produce court warrants before turning over their customer records, the telecoms violated their customers' right to privacy under both the Fourth Amendment and the Electronic Communications Privacy Act of 1986.

For its part, the government demanded the telecoms and other companies turn over their customer records not with court warrants, but with so-called "national security letters,' or NSLs, issued by the Justice Department. By doing so, the government violated the Fourth Amendment and the Foreign Intelligence Surveillance Act of 1978.

Once served with the NSLs, the telecoms 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 of the Patriot Act was struck down last summer as an unconstitutional breach of the First and Fourth Amendments by a federal district court judge in New York.

As a result of the court's ruling, there are now approximately 40 lawsuits brought by citizens and consumer groups against telecommunications companies that enabled the government to illegally eavesdrop on Americans' phone and Internet communications.

Given the Bush administration's penchant for secrecy, lawsuits against the telecoms are the only way to obtain disclosure about the facts from the government. Information being sought includes details about the origins of the program.

The administration admitted that the sweeping domestic surveillance originated in the wake of the September 11, 2001 terrorist attacks. However, declassified documents obtained by the National Security Archive and testimony that is part of these lawsuits suggest the National Security Agency program was put into place shortly after Bush took office -- months before 9/11.

GOP Bullying Tactics Backfire in House

The White House and Capitol Hill Republicans went on a public-relations offensive in a naked attempt to bully Democrats into putting off the requirement that the government go to the FISA Court for warrants. While Senate Democrats, who hold a precarious one-seat majority blinked, House Democrats, with a much firmer 32-seat majority, stood their ground and refused to budge.

That-- combined with a vote by House Democrats to hold two White House aides in contempt of Congress for refusing to testify in the firings of nine U.S. attorneys for allegedly political reasons -- prompted House Republicans to stage their walkout.

But if the GOP's walkout was aimed at bullying their Democratic counterparts, it clearly backfired. Instead, it only hardened the Democrats' resolve, with House Majority Leader Steny Hoyer (D-Maryland) calling the White House's warnings that national security would be damaged if the Protect America Act was allowed to expire "categorically false."

Nothing about the Protect America Act's expiration prevents either law enforcement or intelligence officials from carrying out new surveillance against suspected terrorists. On the contrary, its expiration negates the need to challenge the Protect America Act in court as the blatantly unconstitutional law that it was.

Indeed, many intelligence scholars and analysts outside the government say that Saturday's expiration of the Protect America Act will have little effect on national security. With the Protect America Act now dead, domestic wiretapping rules will revert to the Foreign Intelligence Surveillance Act (FISA).

Passed by Congress in 1978 to enforce the Fourth Amendment, the FISA law requires the government obtain warrants to conduct foreign intelligence surveillance in the United States. The law established the Foreign Intelligence Surveillance Court to issue such warrants in national security cases.

For White House, Telecom Immunity Is Top Priority

Even National Intelligence Director Mike McConnell, in an interview with National Public Radio, acknowledged that "some of the surveillance authorities [under the Protect America Act] would carry over to the August-September time frame." However, McConnell said the real issue over the Protect America Act is not an immediate need to protect America, but to protect the telecoms being sued for assisting in Bush's illegal wiretapping.

Indeed, Bush himself claims that unless the telecoms received assurance that they will not be sued for breaking the law (and therefore be liable for damages), those companies will not agree to enact future wiretaps, therefore undercutting the government's intelligence capabilities:

"If these companies are subjected to lawsuits that could cost them billions of dollars," Bush said. "They won't participate; they won't help us; they won't help protect America."

Yet the bottom line remains the fact that the telecoms violated the law by turning over their customer records to the government without first requiring the government to produce court warrants. This requirement is mandated by the Electronic Communications Privacy Act of 1986.

To reward these telecoms for breaking the law by granting them retroactive immunity from lawsuits is to unconstitutionally deny the American people their First Amendment right to seek redress for the violation of their privacy rights under the law.

War or No War, Government Must Abide By the Constitution

As this blogger wrote back in September, the dangers posed by terrorist organizations such as al-Qaida are very real. But it's time for Bush to be forced 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 explicitly:

"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."

And the Fourth Amendment of the supreme law of the land is equally explicit:

"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."

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!"

But that's not all. It's become abundantly clear to this blogger that the House Republicans, by staging their walkout, have revealed themselves as being more interested in protecting the interests of lawbreaking telecommunications companies than in protecting the constitutional rights of the American people.

Each and every one of those House Republicans who participated in Thursday's walkout -- and, for that matter, every senator up for re-election who voted to deny the American people their constitutional right to seek redress for the telecoms' violation of their privacy rights -- should be tossed out of office in this November's election.

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Volume III, Number 13
Copyright 2008, Skeeter Sanders. All rights reserved.


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