Federal Judge Appointed By Bush's Father Declares NSA Program of Wiretapping Without Court Warrants Violates 1978 FISA Statute -- But Ducks Broader Issue of Its Blatant Unconstitutionality Under the Fourth Amendment; Obama's Refusal to End the Practice Is a Gross Dereliction of His Oath of Office to 'Preserve, Protect and Defend the Constitution'
(Posted 5:00 a.m. EDT Tuesday, April 6, 2010)
NOTE TO READERS: After being forced into hiatus for two weeks following the break-in of my Gmail account by hackers in China, The 'Skeeter Bites Report returns to normal publication today (Tuesday), albeit a day later than its longtime Monday publication schedule. Effective today, The 'Skeeter Bites Report is changing permanently to Tuesday publication. The reason for the change is one of practicality, made at the request of my wife and family: To eliminate the hassle of working under a weekend deadline -- particularly during a long holiday weekend. Not to mention heeding the urging of my doctor to reduce my workload and free up my leisure time -- a reduction which began 0n January 28 when I ceased publication of The 'SBR's Thursday edition. I thank you for your patience during these past two weeks, during which I, in conjunction with Google (which owns Blogger.com, The 'SBR's home site), have taken several measures to protect the privacy of my sources and subscribers and to prevent cyber attacks on The 'SBR site itself.
By SKEETER SANDERS
It's been 14 months since the administration of President George W. Bush passed out of power, an administration that turned out to be the most authoritarian government in modern American history, marked by a wholesale and repeated disregard for the Constitution that its officers, from Bush on down, were bound by their oaths of office to "preserve, protect and defend."
Implicit in that oath is also a binding obligation to obey the Constitution and respect the freedoms that the Constitution guarantees to all Americans.
Among the provisions of the Constitution that every government official, from the president on down, is bound to obey is the Fourth Amendment, which prohibits the government from conducting "unreasonable searches and seizures" on U.S. citizens.
Of course, the nation's founders could not have possibly forseen in the 18th century the rise of electronic communications -- let alone the government eavesdropping on the private telephone and Internet communications of Americans without first obtaining a warrant from a court of law -- and doing so without probable cause, as the Constitution requires.
To plug that loophole, Congress, acting within its authority to enforce the Fourth Amendment "with appropriate legislation," passed two statutes to curb such government abuses: The Foreign Intelligence Surveillance Act of 1978 (FISA) and the Electronic Communications Privacy Act of 1986 (ECPA). Both statutes require the government to obtain court warrants to eavesdrop on the private electronic communications of U.S. citizens.
The ECPA was amended, and weakened to some extent, by some provisions of the USA PATRIOT Act of 2001 that empowered the federal government to compel telecommunications companies to disclose records about their customers through so-called "national security letters" issued by the Justice Department.
A federal court in New York ruled those provisions of the PATRIOT Act unconstitutional under the Fourth Amendment and it remains to be seen whether the fight over the warrantless surveillance will eventually end up in the Supreme Court.
But if you thought that the transfer of power from the Bush administration to the Obama administration meant the end of the warrantless surveillance, think again.
The surveillance is still continuing -- and incredibly, the Obama administration is insisting in the courts on maintaining the practice, despite clear and overwhelming evidence that it's unconstitutional and defies the explicit will of Congress when it acted to enforce the Fourth Amendment with appropriate legislation.
BUSH-APPOINTED FEDERAL JUDGE STRIKES DOWN WARRANTLESS PROGRAM
A federal judge ruled last Wednesday that the federal government's nearly nine-year-old program of electronic surveillance without warrants violates the FISA statute, because the government -- in this case, the super-secret National Security Agency -- failed to seek required warrants for the surveillance from the Foreign Intelligence Surveillance Court, which oversees requests by the government for surveillance warrants against suspected foreign intelligence agents and/or terrorists inside the U.S.
In a 45-page ruling, Judge Vaughn Walker, chief judge of the San Francisco-based U.S. District Court for the Northern District of California, rejected the Justice Department’s assertion that a now-defunct Muslim charity’s lawsuit be quashed because allowing it to go forward could result in the revelation of "state secrets."
Judge Walker -- ironically, an appointee of President George H.W. Bush -- branded the government's use of the state-secrets privilege an “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.” Walker ruled that it was the expressed will of Congress when it passed the FISA statute in 1978 to “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”
SUPREME COURT STRUCK DOWN NIXON PROGRAM IN '70S
Yet in issuing his decision, Judge Walker -- like other federal courts that have similarly ruled against the warrantless wiretaps -- failed to cite a unanimous 1972 ruling by the U.S. Supreme Court that declared a similar program aimed at domestic radicals by the Nixon administration unconstitutional under the Fourth Amendment.
Almost from its inception in December 2005 -- just days after The New York Times revealed the Bush administration's warrantless eavesdropping program's existence -- The 'Skeeter Bites Report has pointed out again and again and again that the Bush program is every bit as unconstitutional as the Nixon program.
Nixon's Justice Department, under then-Attorney General John Mitchell, had overheard telephone conversations of anti-Vietnam War activists and other domestic radicals "to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of government."
Mitchell argued that the surveillance was lawful, even though it was conducted without prior judicial approval, "as a reasonable exercise of [Nixon's] power, exercised through [Mitchell], to protect the national security."
But the nine justices of the nation's highest court ruled unanimously that the Nixon program violated the Fourth Amendment's ban on "unreasonable searches and seizures" by the government.
Justice Lewis Powell, writing for the court, declared that "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses...
"These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely within the discretion of the Executive Branch," Powell continued. "The Fourth Amendment does not contemplate the executive officers of government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate and to prosecute.
"But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks," Powell wrote."The historical judgement, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressure to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."
APPEALS COURT EXPANDED RULING TO INCLUDE FOREIGN INTELLIGENCE
The high court's unanimous decision -- which covered only domestic intelligence -- was bolstered in 1975 by an equally unanimous ruling by the U.S. Court of Appeals for the District of Columbia, the nation's second-highest court, which declared the Fourth Amendment's ban on warrantless domestic spying also applied to foreign intelligence gathering by the government on U.S. soil.
The seven-member appeals court ruled that even where foreign affairs and national security were involved, the government must obtain court warrants before it can eavesdrop on the communications of domestic organizations or individual U.S. citizens who were neither agents of or collaborators with foreign powers.
One judge on the appeals court disagreed in part with the ruling, in which six of its 11 judges wrote separate but concurring opinions. Nonetheless, based on the appeals court's unanimity under the Fourth Amendment -- which mirrored that of the Supreme Court's decision three years earlier -- the administration of then-President Gerald Ford chose not to appeal to the Supreme Court, apparently fearing that it would lose. Instead, Ford ordered the Justice Department to comply with the court's decision.
Ford even indicated that he would support legislation in Congress to require court warrants for all electronic eavesdropping by the government -- in part, paving the way for the passage of the Foreign Intelligence Surveillance Act a year after Ford left office in 1977.
IT'S TIME TO TELL OBAMA: 'OBEY THE CONSTITUTION ON WIRETAPS'
Yet only the American Civil Liberties Union, The 'Skeeter Bites Report -- and a federal judge in Michigan -- appear to have remembered the fact that the Bush (and now Obama) warrantless spying program is every bit as unconstitutional as the Nixon program of four decades ago.
The Obama administration has chosen to not only continue its predecessor's unconstitutional warrantless spying program, but has shamefully chosen to defend its continuance in court. The time has come to hold this administration accountable for its refusal to obey the Constitution it is sworn by its oath of office to "preserve, protect and defend" -- and force it to comply with the Fourth Amendment.
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Copyright 2010, Skeeter Sanders. All rights reserved.