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Last I checked the Fourth Amendment to the U.S. Constitution has not been amended itself as the Eighteenth Amendment was. So why this?

The Senate is closer to renewing controversial measures that critics say would allow the emails and phone calls of U.S. citizens to be monitored without a warrant. The Select Committee on Intelligence has voted to extend controversial amendments to the Foreign Intelligence Surveillance Act that were set to expire at the end of this year.
Now for those who claim that FISA is not a violation of the Constitution let's ask the ACLU:
Government surveillance that sweeps up the communications of U.S. citizens and residents should be conducted in a manner that comports with the Constitution, and in particular with the Fourth Amendment, which prohibits “general warrants” and unreasonable searches. The FISA Amendments Act allows the government to engage in mass acquisition of U.S. citizens’ and residents’ international communications with virtually no restrictions.
Glenn Greenwald gives us further history and background in his Thursday blog on Salon:
(1)    federal courts ultimately accepted the arguments of the Bush and Obama DOJs that the legality of Bush’s domestic spying program should not be judicially reviewed; and (2) the Democratic-led Congress, in 2008, enacted the Bush-designed FISA Amendments Act, which not only retroactively immunized the nation’s telecom giants for their illegal participation in that spying program and thus terminated pending lawsuits, but worse, also legalized the vast bulk of the Bush spying program by vesting vast new powers in the U.S. Government to eavesdrop without warrants (in his memoir, President Bush gleefully recounted that the 2008 eavesdropping bill supported by the Democrats gave him more than he ever expected).
Now during 2008, Congress initiated a four year sunset provision regarding FISA, which basically means that certain laws cease to exist after a fixed period of time unless the legislature reenacts its statutory charter.

However, as Glenn Greenwald goes on to note:

That sunset provision is set to expire and — surprise, surprise — the Obama administration, just like it did for the Patriot Act, is demanding its full-scale renewal without a single change or reform:

A key Senate panel voted Tuesday to extend a contested 2008 provision of foreign intelligence surveillance law that is set to expire at year’s end.
The vote is the first step toward what the Obama administration hopes will be a speedy renewal of an expanded authority under the Foreign Intelligence Surveillance Act to monitor the U.S. e-mails and phone calls of overseas targets in an effort to prevent international terrorist attacks on the country.

Not even former Presidents are immune from warrantless wiretapping and surveillance of the communications of Americans. In fact President Bill Clinton’s private emails were collected under FISA

Now if Bill Clinton is not immune, why should we reasonably expect that an average American will be? We shouldn’t because to do so defies common sense.

What’s even more horrifying is that politicians in high office do not know to what extent our communications have been monitored.

It’s not just the public that’s in the dark about the use of the FAA mind you. Sen. Ron Wyden has been clamoring for more information—and, to the extent possible, public deliberation—for months now. Yet the Director of National Intelligence has told Wyden that “it is not possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA.
How then can our elected representatives prevent the abuse and misuse of power if they are ignorant about how power is abused and misused? They cannot.

But instead of letting the court decide FISA's Constitutional validity our government doesn’t even bother with the question. Again from CATO:

Meanwhile, there are serious questions about whether the FAA is even constitutional. But the government doesn’t want any court to even consider those questions: It has petitioned the Supreme Court to shoot down a challenge to the law before it even begins, in a case to be heard in the coming term.
And from the Wired:
The Supreme Court agreed Monday to decide whether to halt a legal challenge to a once-secret warrantless surveillance program targeting Americans’ communications that Congress eventually legalized in 2008.
The announcement is a win for the Obama administration, which like its predecessor, argues that government wiretapping programs and laws can’t be challenged in court.
Now the Obama administration cannot decide what is Constitutional and what isn't. Only the Judicial system can do that. That is why we have a separation of powers and did not make the President our judge, jury and executioner. Hence, Obama should not trespass in that branch of government. Quoting Glenn Greenwald further:
This week, the Supreme Court announced it was accepting this case for review, and many legal experts believe they would not have agreed to review the ACLU ruling unless they intended to overturn it. So as the Obama administration pressures Congress to renew this eavesdropping law without a single reform, they simultaneously act to block courts even from ruling whether the law is constitutional. And in the process, they threaten to obliterate one of the very few judicial precedents that results in government leaders being subjected to minimal accountability under the law for their secret behavior.
As I said before in one of my previous comments, a healthy democracy requires privacy and feeling that one can be alone with one’s own thoughts. The surveillance state makes us vulnerable and powerless to really dissent and compels us to conform out of coercion.

The great philosopher Foucault said it best:

Constant surveillance, Foucault maintained, can be a kind of torture—a revelation implemented by 19th century prison architects. It’s also ideal for authoritarian government in that it’s a highly efficient form of power: authority doesn’t need to coerce individuals physically to behave a certain way; surveillance inserts authority’s eye inside the individual, and he monitors himself. Surveillance enables power to be anonymous, Foucault says, which is especially devastating. You don’t know exactly why you are being watched, or exactly what’s expected of you, and ultimately cultivates a kind of inbred paranoia where you are unsure and timid about everything you do.

Further, Foucault suggests, surveillance that is widely established in society softens the ground for overt political oppression, because it makes us less resistant to breaches of our rights.

I do not wish to live my life under constant surveillance. I want to live with a free-mind.

For more information and details on FISA renewal please watch this Democracy Now segment:

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Comment Preferences

  •  Of course it's not... (7+ / 0-)

    but this country is no longer governed by the Constitution. Don't you know? EVERYTHING changed after 9/11!

    "I wish I could tell you, in the midst of all of this, that President Obama was waging the kind of fight against these draconian Republican proposals that the American people would like to see. He is not." -- Senator Bernie Sanders

    by Sagebrush Bob on Fri May 25, 2012 at 03:53:14 PM PDT

    •  FISA was introduced by Ted Kennedy (3+ / 0-)
      Recommended by:
      Shawn Russell, kurt, Simplify

      and signed by Carter in 1978, many years before 9/11.  Seems there have been some challenges to it.  From Wikipedia:

      There have been very few cases involving the constitutionality of FISA. In two lower court decisions, the courts found FISA constitutional. In the United States v. Duggan, the defendants were members of the Irish Republican Army. 743 F.2d 59 (2nd Cir., 1984). They were convicted for various violations regarding the shipment of explosives and firearms. The court held that there were compelling considerations of national security in the distinction between the treatment of U.S. citizens and non-resident aliens.

      In the United States v. Nicholson, the defendant moved to suppress all evidence gathered under a FISA order. 955 F.Supp. 588 (Va. 1997). The court affirmed the denial of the motion. There the court flatly rejected claims that FISA violated Due process clause of the Fifth Amendment, Equal protection, Separation of powers, nor the Right to counsel provided by the Sixth Amendment.

      However, in a third case, the special review court for FISA, the equivalent of a Circuit Court Of Appeals, opined differently should FISA limit the President's inherent authority for warrantless searches in the foreign intelligence area. In In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

      Now, it has been amended and broadened after 9/11.

      Personally, I feel FISA is unconstitutional, but, of course, we don't have enough politicians and judges with enough conviction to say it.  This is truly government overreach, but the other side likes this and getting into peoples bedrooms, but not health care, education, transportation, energy, etc.

      "There is no barrier of people's acceptance. The only barrier is the media. Remember what people cannot see or hear, they cannot think about." - liner notes of Soft Cell's 'The Art of Falling Apart'.

      by dugjxn on Fri May 25, 2012 at 05:22:58 PM PDT

      [ Parent ]

  •  Yep. The 1st and the 4th Amendments might as well (9+ / 0-)

    not exist. The whole Constitution is looking more and more 'quaint' as time goes by. Yet one more reason that supporting the status quo is nuts.

    Great diary Shawn. Thank you.

  •  And what's it all about or for? The Global War (6+ / 0-)

    on Terror.  That's why all this happened.  Bin Laden is dead but the GWOT lives on.  When they renew this I wonder if they'll make it permanent or just extend it.  Orwellian government is right but most citizens are still falling for the rationale.

    "The Global War on Terror is a justification for U.S. Imperialism. It must be stopped."

    by BigAlinWashSt on Fri May 25, 2012 at 03:54:58 PM PDT

  •  Thanks for trying to defend the idea of (6+ / 0-)

    constitutional freedoms, and the rule of law, Shawn.

    The means is the ends in the process of becoming. - Mahatma Gandhi

    by HoundDog on Fri May 25, 2012 at 04:01:12 PM PDT

  •  Can any of us even imagine what the world would (7+ / 0-)

    look like if we invested as much, per capita,  in health care, and economic stimulus, as we have in the war on terror?

    I can't remember where I saw the comparision chart of how many million American die each year from inadequate treatment of heart disease, diabetes, pre-natal care, smoking, not using seatbelts, etc.  compared to how many have died from terrorist attacks.  But, the ratios are so out of proportion that it is ridiculous.

    Yet, how many Senator are running to the TV cameras, demanding we suspend the constitution, and triple the health care budget, so save these millions of Americans who deaths preceed every year, and every day?

    We should think about this more, despite the unpopularity of the subject.  Or, perhaps, even more because of the unpopularity.  

    Thanks again for waving the flag.  

    The means is the ends in the process of becoming. - Mahatma Gandhi

    by HoundDog on Fri May 25, 2012 at 04:07:07 PM PDT

    •  Or on evvironmentalism (0+ / 0-)

      So much work out there to be done... except that we'd all profit from it, not just a few well-positioned looters.

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Sat May 26, 2012 at 03:13:37 AM PDT

      [ Parent ]

  •  Look Between Government and Market Nobody Knows (1+ / 0-)
    Recommended by:
    Shawn Russell

    how privacy could even be created.

    Every device with a chip in it would need monitoring by some kind of regulatory agency to be sure it wasn't tracking somebody.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Fri May 25, 2012 at 04:09:01 PM PDT

  •  I found a video of Kos opposing FISA (5+ / 0-)

    Thought you might want to see it.

  •  It's also an abdication of judicial review (0+ / 0-)

    on the part of the courts. "The President scared us off so that we can't do our jobs!" Nothing is so secret that the court can't handle it, behind closed doors if necessary. Nothing is justifiably so, that is.

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Sat May 26, 2012 at 03:22:39 AM PDT

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