Who's Afraid of the Fourth Amendment?

The determination of Democrats in Congress to hand dictatorial powers to Smirky-Darth and amnesty to lawbreaking telecoms who spied on innocent Americans is far more complicated that it appears, as Glenn Greenwald makes clear.

But in addition to cowardice, corruption, political calculation, plain stupidity and old-fashioned bribery and blackmail, the FISA debate was for a moment or two distinguished by the rarest kind of passionate rhetoric in defense of American Democracy and the Constitution.

Chris Dodd went to the Senate floor last night to speak against the FISA bill and delivered one of the most compelling and inspired speeches by a prominent politician that I've heard in quite some time. He tied the core corruption of the FISA bill's telecom amnesty and warranltess eavesdropping provisions into the whole litany of the Bush administration's lawless and destructive behavior over the last seven years -- from torture and rendition to the abuse of secrecy instruments and Guantanamo mock trials -- with a focus on the way in which telecom amnesty further demolishes the rule of law among our political class.

That speech signals that the small minority in the Senate devoted to stopping this bill have made this a priority. Small, vocal, passionate minorities in the Senate -- backed up by vocal, passionate and engaged citizens -- can do much to prevent a bill's quick and painless passage. Dodd's speech can be seen and/or read here.

As salon commenter Wabanatta put it:

"Damn, a speech like that reminds me of when actual patriots roamed the halls of congress."

Cross-posted at Blue in the Bluegrass.

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Nothing to Hide? Then Show Me Your Guns

Glenn Greenwald has a superb post on Salon about the invasive and pervasive American surveillance state.

Read the whole thing, but don't miss the comments, in which we find a few extremely useful gems.

Dan of Steele wrote:

I've done nothing wrong and have nothing to hide.
You can't imagine how many times I hear this.

Glenn responds:

Ask those people, then, if they would let you set up a camera in their bedroom and a constantly running recording device on their phones, and ask them to give you all the passwords to their email accounts and bank and phone records.

Pedinska adds another pertinent question.

...how many, and what kind of, guns they own.

At that point, the cognitive dissonance sets in so rapidly and violently that it either shuts their brains down completely or creates imminent stroke conditions.

And Magritte's pipe reminds us of a pertinent quote.

A suitable response to those people would be a quote that another reader posted a few days ago:

"If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged" -Cardinal Richelieu

If those same people heard about the same pervasive surveillance happening in, oh, let's say, Iran, China or Russia, I'm willing to bet lots that they would be outraged.

And when all else fails, memorize and recite the bottom fucking line:

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.

Cross-posted at BlueGrassRoots.

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Rockefeller And Senate Leadership Are Traitors To The Constitution And Country

Senate Democrats have decided to sell out their country and Constitution by collaborating with George Bush and Republican leadership to allow wholesale privacy invasions in violation of the Fourth Amendment and to grant blanket immunity to telcom companies for their participation in the illegal and unconstitutional domestic surveillance programs of the Bush Administration. In terms of honoring and upholding the Constitutional principles this country was founded upon, and grounded in ever since, there arguably has never been a lower and more pathetic time in our history. Fresh off the Washington Post:

Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government's domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources.

Disclosure of the deal followed a decision by House Democratic leaders to pull a competing version of the measure from the floor because they lacked the votes to prevail over Republican opponents and GOP parliamentary maneuvers.

The collapse marked the first time since Democrats took control of the chamber that a major bill was withdrawn from consideration before a scheduled vote. It was a victory for President Bush, whose aides lobbied heavily against the Democrats' bill, and an embarrassment for House Speaker Nancy Pelosi (D-Calif.), who had pushed for the measure's passage.

The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.

The Fourth Amendment has been under attack by the authoritarian Republicans and their insidious hatchet groups like the Federalist Society for over twenty five years now. It began with the characterization of hideous and substantive Fourth Amendment violations of fundamental search and seizure law under the Fourth Amendment as "mere technicalities". Soon conservative authoritarian politicians andprosecutors started shading their duties and principles under the law to find creative ways around Constitutional protections in order to further their oppressive and often racially tinged agenda. Then the authoritarians proudly proclaimed how they had protected the "law and order for the citizens" by "clamping down on criminals" and "elimianting the criminal's use of technicalities". The more they talked the talk, the more they belligerently walked the walk.

The sad result over time is the situation we now find ourselves in where the Fourth Amendment to the Constitution be damned, the government and justice system is to be used as just another partisan tool for monitoring and controlling the citizenry. The Last Attorney General, Alberto Gonzales, dismissively branded the Geneva Conventions as "quaint" and inconsequential. George Bush has belligerently said of the Constitution that "it's just a damn piece of paper". The Executive Branch acts, and thinks, like Article II of the Constitution (the one delineating and defining the Executive Branch) is the only portion that exists or matters. This is what happens when political goals of the few in power trump adherence to the due process principles of the system.

Well, today, the evisceration of the Fourth Amendment is just about complete.  If the terms of this agreement that Rockefeller and Democratic leadership have entered into with Bush and the Republicans becomes law, you can also pretty much write off any thought of accountability on the part of the Bush Administration for any of it's sins.  Passage of this bill by the Democrats is nothing short of implicit ratification and approval of the criminal behavior of the Bush/Cheney Administration; ballgame over.

The atomic clock for due process and privacy is about to strike midnight. Time is fleeting fast; but there is still time. Place phone calls to the critical Senators. If any of them have an office in your town, go to their offices and demand to make a personal statement to the highest ranking soul in the building. Cause a ruckus, make a scene, take a stand; then do it again. This is incredibly important to the integrity of our Constitution and right to privacy; leave no card on the table and no ounce of effort unspent. This post from FireDogLake contains all the contact information necessary for the battle. Step up to the plate. Make it count!

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Verizon Communications and Blatant Disregard for the Fourth Amendment

Executives from Verizon Communications, admitted to congressional investigators that they had willingly turned over the telephone records of their customers to federal authorities hundreds of times since 2005 without so much as asking to see a warrant or a court order.

The executives maintain that it is not their place to determine the legality or necessity of the requests because “to do so would slow efforts to save lives in criminal investigations.”

The company also revealed that the FBI, through the use of “National Security Letters” sought multiple generations of customer information. They sought, and received, not merely the customers call records, but the records of every person they called and all of the people they called as well. When it comes to information about our private lives, the government is a voracious beast, and Verizon seems all too willing to load up it’s plate in the buffet line.

The disclosures, in a letter from Verizon to three Democrats on the House Energy and Commerce Committee investigating the carriers' participation in government surveillance programs, demonstrated the willingness of telecom companies to comply with government requests for data, even, at times, without traditional legal supporting documents. The committee members also got letters from AT&T and Qwest Communications International, but those letters did not provide details on customer data given to the government. None of the three carriers gave details on any classified government surveillance program.

From January 2005 to September 2007, Verizon provided data to federal authorities on an emergency basis 720 times, it said in the letter. The records included Internet protocol addresses as well as phone data. In that period, Verizon turned over information a total of 94,000 times to federal authorities armed with a subpoena or court order, the letter said. The information was used for a range of criminal investigations, including kidnapping and child-predator cases and counter-terrorism investigations.

Verizon and AT&T said it was not their role to second-guess the legitimacy of emergency government requests. (emphasis added)

The letters were released earlier in the week as Congress deliberated whether or not to grant immunity to telecommunications companies for their complicity and willingness to assist the government in spying on Americans. The incumbent executive, the companies, and their Republican cronies in Congress want the companies to be granted immunity in cases where they are sued by customers, pissed off about the invasion of their privacy. House Democrats refuse to consider such immunity without first learning just exactly how complicit the companies and the government are in these breaches of privacy.

"The responses from these telecommunications companies highlight the need of Congress to continue pressing the Bush administration for answers. The water is as murky as ever on this issue, and it's past time for the administration to come clean," said Rep. Edward J. Markey (D-Mass.), who, along with Chairman John D. Dingell (D-Mich.) and Rep. Bart Stupak (D-Mich.)launched the investigation.

…[The]13-page Verizon letter indicated that the requests went further than previously known. Verizon said it had received FBI administrative subpoenas, called national security letters, requesting data that would "identify a calling circle" for subscribers' telephone numbers, including people contacted by the people contacted by the subscriber. Verizon said it does not keep such information.

"The privacy concerns are exponential each generation you go away from the suspect's number," said Kurt Opsahl, senior staff attorney with the EFF. "This shows that further investigation by Congress and the inspector general is critical."

Earlier this year, the Justice Department's inspector general found that the FBI may have improperly obtained phone, bank and other records of thousands of people inside the United States since 2003 by using national security letters and exigent letters, or emergency demands for records.

Michael Kortan, an FBI spokesman, said the bureau has suspended use of community-of-interest data "while an appropriate oversight and approval policy" is developed. He added that the inspector general is reviewing the use of those data.

Democrats have seen their efforts to force the Bush administration to admit the scope and breadth of the domestic spying it has engaged in since September 11, 2001. What revelations have come to light have been unmasked via press reports, FOIA lawsuits filed by advocacy groups, and Inspector General’s reports.

Verizon is certainly a company I would drop like a bad habit if I had any services through them. Fortunately, I don’t.

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The Fourth Amendment wins another round

U.S. District Judge Ann Aiken ruled Wednesday that two provisions of the USA Patriot Act - secret searches and wiretaps to gather criminal evidence instead if intelligence gathering - are unconstitutional. "For over 200 years, this nation has adhered to the rule of law - with unparalleled success," the judge wrote in her ruling. "A shift to a nation based on extra-constitutional authority is prohibited, as well as ill-advised."

It all started with a misidentified fingerprint in the wake of the Madrid train bombings in 2004, which led investigators to Brandon Mayfield, an attorney in Portland, Oregon and a convert to Islam. The FBI secretly searched his home and his office, and both were bugged.

Mayfield was wrongfully detained for two weeks. Eventually, the FBI apologized to the Portland man for their grievous error and settled the lawsuit he brought fir $2 million dollars. But Mayfield wasn't done. He challenged the act that authorized the searches and surveillance on the grounds that it violated civil liberties of Americans. The U.S. Attorney General's office asked that Mayfield's challenge be dismissed.

Judge Aiken declined the request, averring that the use of the Patriot Act to authorize secret searches and wiretaps to gather criminal evidence is in direct violation against the Fourth Amendment, which protects against unreasonable searches and seizures. She rebuked the U.S. Attorney, stating that the governments request amounted to "asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so."

(keep reading)

Mayfield's attorney, Elden Rosenthal, issued a statement on his behalf, praising Judge Aiken. In his statement, Mayfield said Judge Aiken "has upheld both the tradition of judicial independence, and our nation's most cherished principle of the right to be secure in one's own home."

A spokesman for the Justice Department would only say that the agency was reviewing the decision and declined further comment.

Garrett Epps, a Constitutional Law expert at the University of Oregon said that the Mayfield case shows that pushing the Partiot Act to the limit may backfire on the Bush administration.
"They've been so aggressive in their assertions of statutory and constitutional authority that it has alienated courts," Epps said. "Judges just don't trust them. The Bush administration has shot itself in the foot."

The ruling is not expected to have any immediate effect on enforcement, but if the Justice Department appeals, and the ruling is upheld, the impact could be far-reaching. Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland called Aikin's analysis of the law "extraordinarily sound" and said that the governments bungling of the investigation that focused on Mayfield had opened the door for the challenge to the law by illustrating that the government is using the FISA court to bypass the Constitution.

Although the ruling was not expected to have any immediate effect on enforcement under the Patriot Act, it could have a major impact if it is appealed and upheld, said director of the Center for Health and Homeland Security at the University of Maryland."The high irony of this is that, if the government had never heard of Brandon Mayfield, they would not have this ruling today," Greenberger said. "They essentially got caught with their pants down."

Yesterdays ruling was the second major legal setback the administration has been dealt this month. In a New York court, the ACLU won a Patriot Act challenge on behalf of an internet service provider that received a "National Security Letter" demanding customer phone and computer records. The judge in that case ruled that the FBI must justify to a court the need for secrecy for "more than a brief and reasonable period of time."

One would think that the Justice Department wishes they had never heard of Brandon Mayfield. His case has been a humiliating embarrassment for the feds. Last year, the Justice Department's internal monitoring body chided the FBI for sloppy work in the case, citing the FBI's leap to judgment in connecting Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents "had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield."

The Patriot Act was passed with little debate in the fervor and fear that gripped many in America and virtually everyone in Washington D.C. after the terrorist attacks of September 11, 2001. The law gave the feds the authority to search phone records, read email and expand the Treasury Departments regulation of financial transactions involving foreign nationals. The saw was renewed in 2005, and in August of this year, the Bush administration, by use of lies and manipulation, convinced a feckless congress to expand their specious powers further, allowign the government to listen in on foreign communications even when an American was a party. The expanded powers sunset next year - BUT - and this is the part they don't tell you, any investigations underway at the time of the sunset will continue for a full year after the law expires. As citizens call bullshit, Congress is said to be taking a closer look at the law and many, mostly Democrats, want to rein in the language that many consider casts too wide a net.

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Score one for the Fourth Amendment!

Attention all in need of a little GOOD news...

Earlier today, U.S. District Judge Victor Marrero struck down the National Security Letters provision of [that apostasy known as] the 'Patriot' Act. The NSL provision has been abused by the FBI practically since before the ink was dry in the Resident's signature on the revised legislation.

In his ruling, Judge Marrero stated that investigators must have the approval of a court before ordering Internet service providers to turn over customer records without informing the customers.

Judge Marrero found that the government orders must be subject to "meaningful judicial review" and that the revised 'Patriot' Act "offends the fundamental constitutional principles of checks and balances and separation of powers."

The challenge to the law was brought by the American Civil Liberties Union, which argued that the provision allowed the FBI to demand sensitive personal information on American citizens without the sort of court order and oversight required for other types of Government searches.

Since Judge Marrero is a Clinton appointee who understands that the entire Constitution applies to every American, not just the Third Amendment, which says we don't have to quarter soldiers in our homes - (the only part of the Constitution, it seems, that the Bushies have left unmolested) - brace yourselves for the right wing to commence with the "activist judge" venom in 5...4...3...2...1

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White House Continues to Stall on Subpoenas

Just three days before the latest deadline, the Bush administration asked the Senate Judiciary Committee for more time to produce subpoenaed information about Bush's warrant-less domestic spying program.

Committee Chair Patrick Leahy had set Monday as the deadline to provide the documents and testimony the committee had subpoenaed June 27th. Leahy had agreed to postpone the original July 18th deadline until August 20th at the request of the White House.

Subpoenas had been sent to the Justice Department, National Security Council and the offices of the president and vice president for documents relating to the legal justification for the warrantless wiretapping program.

In an August 8th note to the White House counsel, Leahy said he was setting a new deadline of Aug. 20 because he could not wait any longer.

"You have rejected every proposal, produced none of the responsive documents, provided no basis for any claim of privilege and no accompanying log of withheld documents," wrote Leahy, D-Vt.

But White House Counsel Fred Fielding Friday asked for another extension until after Labor Day:

In a letter to Leahy, White House counsel Fred Fielding argued that the subpoenas called for the production of "extraordinarily sensitive national security information," and he said much of the information — if not all — could be subject to a claim of executive privilege.

Fielding's response to Leahy said that while the White House had identified a core group of documents in response to the subpoenas, the work is "by no means complete" and could not be completed by Monday.

He suggested further conversations with the panel, saying the White House did not want the issue to interfere with the administration's desire to make more permanent the new powers Congress just gave NSA to monitor communications entering the United States involving foreigners who are the subjects of a national security investigation.

In response, Leahy spokeswoman Erica Chabot said:

"In requesting that last extension, the White House counsel suggested that the administration would be ready to respond by Aug. 1. The new deadline is three weeks past the time the White House counsel had estimated was needed. The committee looks forward to the administration complying with the subpoenas."

Of course, the "new powers Congress just gave NSA" are not limited to monitoring "communications entering the United States involving foreigners who are the subjects of a national security investigation."

The "Protect America Act" (sic) excludes from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

There is no requirement that the surveillance be conducted outside the U.S.; that the surveillance be "directed at" a person in any way connected to terrorism or other wrongdoing; or that the surveillance excludes communications of U.S. citizens. In fact, the new law excludes from FISA any surveillance that is "directed at" persons overseas or "directed at" persons in the U.S.

The key term is "directed at." The law includes no definition of it.

The president now has the authority to spy on you at any time, in any place, for any reason. And now he doesn't want to explain the legal justification for this power.

Add to this the announcement Wednesday that the Department of Homeland Security is set to begin using spy satellites for domestic surveillance, turning its "eyes in sky" inward. The plotline of the Will Smith/Gene Hackman movie Enemy of the State no longer seems fictional, or even outlandish.

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California Supreme Court gives Fourth Amendment a whack

California drivers suspected of DUI will no longer be “secure in their homes” after the court ruled their homes could be searched without a warrant.

Ridiculous. Where’s the probable cause even to do this with a warrant? There is none.

And, to do so without a warrant requires “exigent” needs, such as “hot pursuit.” There’s none of that, either.

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Repeat After Me: Bush Killed the Fourth Amendment

UPDATE Below

No surprise Senate Minority Leader Mitch McConnell, R-KY, is parroting the maladministration's lies on the Gut FISA And The Fourth Amendment For Good Measure Act, but for the record:

Speaking to the national Fraternal Order of Police conference (in Louisville Monday), the Kentucky Republican hailed the update to the Foreign Intelligence Surveillance Act, saying "we're safer for it."

"Now to me, the idea that we were supposed to extend the Bill of Rights to a bunch of noncitizens overseas, let alone terrorists, wasn't only dangerous, it was the height of stupidity," McConnell said, drawing applause from the police group.

Remind me not to donate to the FOP this year.

To the Courier-Journal's minimal credit, they did indulge in some he-said-she-said stenography:

Civil liberties groups and some Democrats have said the measure went too far, and could enable the government to wiretap U.S. residents communicating with people overseas without adequate oversight from courts or Congress.

"This law has basically given the government the right to scoop up those communications without a warrant," Caroline Fredrickson, legislative director of the national American Civil Liberties Union, said in a phone interview Monday.

How much do we regret not strangling in the cradle the "Iraq (hearts) Al Qaeda" meme and the "Mushroom Cloud" meme and the "Liberals Want Us To Lose In Iraq" meme and all the other lies we let slide because we couldn't believe anybody with the brains FSM gave a walnut would believe them?

We have to put a stop to this "We're Only Spying on Terrorists" meme right now this instant.

It's not going to be easy. I spent my lunch hour today explaining to a highly intelligent, well-informed, very liberal co-worker that the "FISA revision" was actually the removal of privacy rights for American citizens. This co-worker hates Smirky, hates repugs, hates the war, would vote for Satan if he ran as a Democrat. But he couldn't believe that Congress would actually approve a bill that gave the president - any president - the right to spy on U.S. citizens without a warrant.

He did make one good point - people don't believe their rights have been removed until that removal affects their lives directly.

So how do we bring this home to people? How do we make them believe their lives, their fortunes, their sacred honor are once again on the line?

UPDATE 7:20 p.m.: Always read the blog first. Looks like Gadfly may have discovered exactly the issue we need to bring this home to people.

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