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Congress Plotting to Cut a Hole in the 4th Amendment, Again
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Hidden beneath the controversy stirred up last week by the publication of a book called “Fire and Fury,” a highly critical insider’s view of the Trump White House that the president has not only denounced on national television but also tried to prevent from being published and distributed, are the efforts of the Trump administration and congressional leadership to bypass the Fourth Amendment to the Constitution.

Here is the back story.

After the excesses of the Watergate era, during which the Nixon administration used the FBI and the CIA unlawfully to spy without warrants on the president’s real and imagined domestic political opponents, Congress passed the Foreign Intelligence Surveillance Act. FISA prohibited all domestic surveillance except that which is pursuant to warrants signed by federal judges.

The Fourth Amendment — which guarantees privacy in our persons, houses, papers and effects — permits the government to invade that privacy only when a judge has signed a warrant that authorizes surveillance, a search or a seizure. And judges may only issue warrants when they have found probable cause to believe that the government surveillance or invasion of the target’s privacy will produce evidence of criminal behavior. The Fourth Amendment further requires that the judicial warrant describe specifically the place to be searched or the person or thing to be seized.

All these requirements are in the amendment so as to prevent any court from issuing general warrants. Before the Constitution, general warrants were issued by British courts that met in secret in London. They were not issued based on probable cause of crime but issued based on the government’s wish to invade the privacy of all Americans living in the Colonies to find the more rebellious among them. This was the king and Parliament’s version of protecting national security.

General warrants did not describe the place to be searched or the person or thing to be seized. They authorized the bearer — usually a British soldier physically located in the Colonies — to search where he wished and seize whatever he found.

FISA did not interfere with the standard understanding or use of the Fourth Amendment by the government and the courts. But it did add another way for the government to invade privacy when its wish is to surveil people for national security purposes — a return to general warrants — as opposed to solely gathering evidence of crimes.

The FISA-created procedure, enacted in defiance of the Fourth Amendment — which makes no distinction between government evidence gathering and government intelligence gathering — permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.

ORDER IT NOW

Since 1977, the Foreign Intelligence Surveillance Court has issued well over 99 percent of the warrants that the government has requested. And these warrants do not specifically describe the place to be searched or the person or thing to be seized. A typical FISC-issued warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area or ZIP code. One infamous FISC-issued search warrant permitted the feds to surveil all Verizon customers in the U.S. — in excess of 115 million people — without any evidence of crime or even suspicion about any of them.

Now back to the Trump administration’s work below the radar. Even in the fresh aftermath of 9/11, when the government’s respect for constitutional norms was at a lamentably low point, the government interpreted the Fourth Amendment as requiring the government to separate its intelligence functions from its law enforcement work. The government recognized that its trigger for mass surveillance — namely, looking for a foreign agent among the populace — was a far lower standard than probable cause of crime, which is what the Fourth Amendment requires.

Today, the federal government’s computers are permanently connected to the mainframes of all telecoms and computer service providers in America, so the spying is in real time. Today, the federal government employs more than 60,000 domestic spies — one spy for every 5,500 Americans. Today, if any of them come across evidence of crimes while listening to your telephone calls or reading your texts or emails ostensibly for intelligence purposes, there is little they can do about it.

Until now.

Now, hidden beneath the “Fire and Fury” controversy is the muffled sound of the Trump administration and Republican congressional leaders plotting the enactment of an addition to FISA that would permit the use of evidence of crimes in federal court even when it is discovered during mass surveillance authorized by general warrants.

If enacted, this radical, unconstitutional hole in the Fourth Amendment would bring the country full circle back to the government’s use of general warrants to harass and prosecute — general warrants so odious to our forebears that they took up arms against the king’s soldiers to be rid of them.

I am surprised that President Donald Trump supports this. He has himself been the target of unlawful foreign surveillance and unconstitutional FISC-authorized domestic surveillance. “Fire and Fury” even quotes former British Prime Minister Tony Blair warning a newly elected Trump about this. And now he wants to unleash upon us all the voracious appetite for surveillance that was unleashed upon him and prosecute us for what is found, the Constitution be damned.

Whatever happened to the public promise to preserve, protect and defend the Constitution as it is written? That’s in the oath all in government have taken. That is the oath that the president and his Republican allies reject.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
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  1. anonymous • Disclaimer says:

    I have been commenting here for a few months about Mr. Napolitano’s role in maintaining public acceptance of the anti-Russian hysteria. Years ago, he seemed a breath of fresh air, calling out those in political power for their disregard of the Constitution. I’m now soured, and admit to looking here each Thursday for the propaganda that often is to be found in his columns.

    (To the extent this one is intended to bring to broader public attention a further erosion of the Constitution’s supposed constraints, some more detail with citations should have been included. But Mr. Napolitano is a commentator, a TV creature, so go search elsewhere to learn.)

    I believe that one purpose of this article is to pump a new anti-Trump book and what might have been labeled by a more aggressive propagandist its subject’s “obstruction” of it, conveying the process crime theme of those cheerleading Mr. Mueller. Note how this is done in the opening paragraph:

    “Hidden beneath the controversy stirred up last week by the publication of a book called “Fire and Fury,” a highly critical insider’s view of the Trump White House that the president has not only denounced on national television but also tried to prevent from being published and distributed, …”

    This clunk has nothing to do with the rest of the sentence, much less the topic being addressed. Two more references to the new book come later, that in the penultimate paragraph straining to make some connection to the subject of Mr. Napolitano’s essay. But all three would be redlined as needless and distracting if this were being graded as an essay about legislation now pending in the Congress.

    Mr. Napolitano may no longer hold public office, but Judge Waterboy remains part of the Establishment.

    • Replies: @Quartermaster
  2. @anonymous

    I’d say you didn’t give much attention to the article, or you have a reading comprehension problem. The reference to the “Fire and Fury” is only in passing and is only because of the citation of the warning of Tony Blair. I very cogent, germane warning.

    Frankly, thinking the good Judge is part of the establishment simply says that you haven’t been paying attention.

    • Replies: @anonymous
  3. anonymous • Disclaimer says:
    @Quartermaster

    Let’s both pay attention, and see whether and how “the good Judge” on Thursday addresses the facts in Mr. McGovern’s article “The FBI Hand Behind Russia-Gate,” now available here on this website. That would be right up Mr. Napolitano’s alley, wouldn’t it? He could even recycle his last paragraph, above:

    “Whatever happened to the public promise to preserve, protect and defend the Constitution as it is written? That’s in the oath all in government have taken. That is the oath that [Strzok and his] allies reject.”

    Mr. Napolitano knows that the Establishment needs an Eastasia, which is why he propagandizes against Russia, cheerleads the efforts of the “no-nonsense” (his description) special counsel Mr. Mueller, and finds other things to address when convenient.

    I would love to be wrong about this. We shall see.

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