The FISA Amendments Act Is Clearly Unconstitutional; And Congress Doesn't Care

from the but-but-terrorism dept

Fri, Dec 14th 2012 9:00am — Mike Masnick

We've been discussing the now annual rush to re-approve the FISA Amendments Act, despite the fact that the original bill was on shaky constitutional ground, and it's been made much (much, much) worse due to a secret interpretation of what the law means (a secret interpretation that many in Congress apparently have no interest in finding out about). Andrew Napolitano, a former judge, has penned an interesting column laying out many of the reasons why the whole thing is completely unconstitutional. First, he notes that the establishment of FISA itself is likely a violation of the 4th Amendment:

The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard -- thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution -- of probable cause of status. The status was that of an agent of a foreign power. So, under FISA, the feds needed to demonstrate to a secret court only that a non-American physically present in the U.S., perhaps under the guise of a student, diplomat or embassy janitor, was really an agent of a foreign power, and the demonstration of that agency alone was sufficient to authorize a search warrant to listen to the agent's telephone calls or read his mail.

Already troubling enough, but, as Napolitano notes, things weren't just left there. They've continued to stretch and change the conditions, taking it further and further into unconstitutional realms:

Over time, the requirement of status as a foreign agent was modified to status as a foreign person. This, of course, was an even lesser standard and one rarely rejected by the FISA court. In fact, that court has rarely rejected anything, having granted search warrants in well over 97 percent of applications. This is hardly harmless, as foreign persons in the U.S. are frequently talking to Americans in the U.S. Thus, not only did FISA violate the privacy rights of foreigners (the Fourth Amendment protects "people," not just Americans); it violated the rights of those with whom they were communicating, American or non-American.

It gets worse. The Patriot Act, which was enacted in 2001 and permits federal agents to write their own search warrants in violation of the Fourth Amendment, actually amended FISA so as to do away with the FISA-issued search warrant requirement when the foreign person is outside the U.S. This means that if you email or call your cousin in Europe or a business colleague in Asia, the feds are reading or listening, without a warrant, without suspicion, without records and without evidence of anything unlawful.

It's just those Patriot Act amendments (the FISA Amendments Act) that is being debated right now. And given some of the questions being asked by politicians who understand the "secret interpretation" of the FISA Amendments Act, it appears that it actually gives law enforcement the ability to go even further. So it's not even just about emailing or calling your cousin in Europe, but as long as law enforcement (a) claims that it's related to a terrorism investigation and (b) they have no specific knowledge at the time of acquisition only that the communication is domestic -- then they can collect just about anything. So, under that interpretation, it appears that the NSA can just collect well, almost anything, by saying that it's all for the sake of a permanent and all encompassing terrorism investigation, and since they're just collecting absolutely everything, they have no specific knowledge at the time of acquisition that the communication is domestic.

Considering that Napolitano's argument starts from the idea that FISA itself is unconstitutional, looking at where we are now from where we started, we're no longer just in "unconstitutional" mode, in which we've tip toed over the boundary. We're now in a full on, 100% "let's mock the Constitution" mode. And, Napolitano, like many others, wonders why almost no one in Congress is willing to point this out:

Moreover, everyone in Congress has taken an oath to uphold the Constitution, which could not be more clear: "The right of the people to be secure in their persons, houses, papers, and effects..." shall not be violated, except via a warrant issued by a neutral judge upon the judge finding probable cause of crime. If we let Congress, which is a creature of the Constitution, change the Constitution, then no one's liberty or property is safe, and freedom is dependent upon the political needs of those in power.

The President and the leadership of both political parties in both houses of Congress have abandoned their oaths to uphold the Constitution. They have claimed that foreigners and their American communicants are committed to destroying the country and only the invasion of everyone's right to privacy will keep us safe. They are violating the privacy of us all to find the communications of a few. Who will keep us safe from them?

It's no secret that politicians use fear to increase their own power and to cut away at civil liberties. We have plenty of history that demonstrates that. It's just a real shame that so few people seem willing to speak out about this -- or that so few people even seem to care that the government has done this.

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Filed Under: 4th amendment, congress, constitution, fisa, fisa amendments act, privacy, warrants

44 Comments

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Anonymous Coward, 14 Dec 2012 @ 9:07am

Since when has congress given a crap about the rights of their constituents, they solemnly swear to uphold the constitution in their oath of office and then do their best in the opposite direction. Some members of congress do not understand why polls show them with a very low approval rating.

congress is the opposite of progress
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Anonymous Coward, 14 Dec 2012 @ 9:18am

Who has the right to start impeachment proceedings, as from outside it looks like congress if failing imn its duties to the people.
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Rikuo (profile), 14 Dec 2012 @ 9:21am

"Congress is bound by, and cannot change, the Constitution"

I've just read the Wikipedia article on the US Constitution, and the amendments, and correct me please if I'm wrong, but it does say Congress can change the Constitution; it needs to propose it and have the various states ratify it.
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Anonymous Coward, 14 Dec 2012 @ 9:24am

it also goes to show what is basically thought about The Constitution, particularly by Congress, (who should be the greatest upholders of it) that is, of course, until a particular person needs it's protection!
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Anonymous Coward, 14 Dec 2012 @ 9:27am

Re:
Some members of congress do not understand why polls show them with a very low approval rating.

Yet in the 2012 election, 358 incumbents were re-elected to the U.S. House of Representatives �out of 393 incumbents running. That's a 91% reelection rate for incumbents.

Even divided over all 435 contested House seats, the 358 incumbents reelected amount to 82%.

It appears that all the beauty polls showing a 9% or 15% or 16% job approval rating for Congress are absolutely meaningless.

Absolutely meaningless.
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JP, 14 Dec 2012 @ 9:34am

Re:
When con is viewed as an adverb, it might mean the opposite of progress.... However, when thinking of congress, the slang adjective form of con always comes to mind first....

con - adj. - Of, relating to, or involving a swindle or fraud
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Anonymous Coward, 14 Dec 2012 @ 9:36am

Re: Re:
"Oh, but my representative is doing a great job!"
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John Fenderson (profile), 14 Dec 2012 @ 9:38am

Re:
True. A better wording would be something like "Congress cannot unilaterally change the Constitution".
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Anonymous Coward, 14 Dec 2012 @ 9:39am

Re: Re:
actually its a case of "MY rep. is fine, the others are all EVIL-DEVIL-WORSHIPPING-ASSHATS". So they vote for their "special guy" over and over again because he said he done good...

Hell explain the turd in the punch bowl Lugar getting relected over and over for 30+ years to Senate, yet the guy hadn't lived (just owned a home) in the State for 20+ years, right after they changed the state requirements...

Now he is gone, and we got to pick between Shit sammwich one, and Shit sammwich Two... so which shit do you pick?
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Anonymous Coward, 14 Dec 2012 @ 9:43am

Re:
Who has the right to start impeachment proceedings

?

Article I, Section 2.
The House of Representatives ... shall have the sole power of impeachment.

But see Article I, Section 3.
The Senate shall have the sole power to try all impeachments.

I am not sure it has ever been decided whether a Senator or Representative is a �civil officer[] of the United States� within the meaning of Article II, Section 4. The Senators and Representatives are certainly not �other officers of the United States� within the meaning of Article II, Section 2. In any case, the procedure would seems cumbersome compared with the procedure of Article I. Section 5.
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Why impeach and try someone who may �or may not� be a civil officer of the United States, when expulsion is available?
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Anonymous Coward, 14 Dec 2012 @ 9:53am

This gives me absolutely no hope that the next Patriot Act bill extension will be repealed. They're trying to pass this right before Christmas, once again, just like they've done with all such terrible bills in the past, including SOPA (although we managed to stop that one in the nick of time).
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jupiterkansas (profile), 14 Dec 2012 @ 9:56am

Re: Re:
But my incumbent was running against a MORON!

I'd love to vote for someone new but qualified people do not want the job.
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G Thompson (profile), 14 Dec 2012 @ 10:00am

Re: Re:
Are you saying that the US constitution can be changed by just ratification by the States or do the States themselves have a formal procedure they have to impliment before ratification.

mainly I'm asking because to Change the Australian Constitution there has to be a Referendum held which is mandatory for all voting able citizens to vote on - criminally punishable if you do not vote (and the answers are YES or NO on ONE question only) and then for the referendum to pass each state must have an absolute majority of votes in each state. ie: less than 51% in any state means it does not pass and the constitution is not changed.
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Anonymous Coward, 14 Dec 2012 @ 10:20am

Re: Re: Re:
According to Wikipedia, amending the Constitution requires 2/3's of both houses to propose the amendment, and then 3/4 of the states (state legislatures or special state conventions to be specified by Congress) need to approve it. Alternatively, 3/4 of the states can call a constitutional convention. Any amendments proposed must also be ratified by 3/4 of the states.

So no, the US doesn't use popular vote to determine Constitutional Amendments, primarily because it was/is intended to be a representative government of representative governments.
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John Fenderson (profile), 14 Dec 2012 @ 10:25am

Re: Re: Re:
Amending the Constitution is very difficult to do. The way it works is this:

First the amendment is proposed. This is done in one of two ways. Congress can approve the amendment with a 2/3 supermajority vote in both houses, or 2/3rd of the state legislatures can request it.

Then to be ratified, 3/4 of the state legislatures have to approve it.
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richard (profile), 14 Dec 2012 @ 10:30am

Personally I think it is time to Tear the government down and rebuild it is a bloated wasteful government that only cares about it's self
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Anonymous Coward, 14 Dec 2012 @ 10:35am

Re: Re: Re:
... just ratification by the States or do the States themselves have a formal procedure...

Article V (annotated):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;...

The Congress,
� whenever two thirds of both Houses shall deem it necessary,

�shall propose Amendments to this Constitution, or,
� on the Application of the Legislatures of two thirds of the several States,

�shall call a Convention for proposing Amendments

which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified

� by the legislatures of three fourths of the several states, or
� by conventions in three fourths thereof
as the one or the other Mode of Ratification may be proposed by the Congress
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Anonymous Coward, 14 Dec 2012 @ 10:43am

Re: Re:
Comment understood - single digit approval rating retains meaning.

There were several, possibly the worst, who did get the boot and this is good. Maybe it was due to the enormous coverage in msm, comedy and general conversation.

Eligible voters need to actually vote and be well informed in their decisions - this is the biggest hurdle.

Many states have stupid voting laws which intensionally impede the voting process, this needs to be fixed. One can not claim (without being laughed at) that this country is a representative form of government when less than half of the eligible voters cast their votes and those elected re-write their platform after taking office.
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Anonymous Coward, 14 Dec 2012 @ 10:49am

Re:
Or, they can do whatever they please and not be held accountable for their actions ... interesting how easy this has become if you are too big to prosecute.
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John Fenderson (profile), 14 Dec 2012 @ 10:53am

Re: Re: Re:
It's been apparent to me for decades now: you have to be stupid, crazy, or corrupt to want to hold (let alone run for) a national political office. There have been exceptions over the years (that I can count on one hand), but as a rule of thumb, it holds.
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Anonymous Coward, 14 Dec 2012 @ 10:54am

Re:
this is a very bad idea
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technomage (profile), 14 Dec 2012 @ 10:57am

Re: Re: Re:
actually its a case of "MY rep. is fine, the others are all EVIL-DEVIL-WORSHIPPING-ASSHATS"

Hey, leave the "devil-worshipers" out of this...

"money-worshipers" fits so much better, as we all know there is a separation of church and state!
/s

Besides, the very bad visual of seeing all the congress critters dressed (or undressed) for a LaVeyian Black Mass is downright scary and repulsive.
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technomage (profile), 14 Dec 2012 @ 10:59am

Re: Re:
and keeping things the way they are isn't a bad idea?
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FarSide (profile), 14 Dec 2012 @ 11:01am

Re: Re: Re:
Let's not exaggerate here, they aren't that similar.

Everyone knows you get to pick between a turd sandwich and a giant douche-bag.
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Mr. Applegate, 14 Dec 2012 @ 11:04am

Re: Re: Re:
This is one of the MANY reasons there should be term limits on ALL political offices. I say 6 years (3 Terms) in House, 12 in Senate (2 Terms), 8 years (2 Terms)for president.

The problem is the people in these offices have lost all touch with what real people have to deal with. They just know to survive the next election they have to bow to the wants of their party leaders to get the party to support their next election bid.

Holding political office should never be a career plan.
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Ed C., 14 Dec 2012 @ 11:06am

Re: Re:
Yes, that would be a painful solution, but I only hope we can steer our government back on course before it becomes the only viable solution.
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Anonymous Coward, 14 Dec 2012 @ 11:17am

Re: Re: Re: Re:
Then to be ratified, 3/4 of the state legislatures have to approve it.

You omitted the possibility of ratification �by conventions in three fourths thereof� �as the one or the other Mode of Ratification may be proposed by the Congress�.

In United States v Sprague (1931), the court read the Constitution to say:

The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress.

That does not answer the questions that might attend the procedures of ratification conventions in the several states. May the Congress, in proposing ratification by conventions, also make rules governing their composition and for ordering the conventions' proceedings?
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Anonymous Coward, 14 Dec 2012 @ 11:23am

How come many here look at only a few aspects of what the government does and claim these actions to be unconstitutional?

If you look at what the constitution says, most of the actions of government are against what it allows.
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Anonymous Coward, 14 Dec 2012 @ 11:33am

Re: Re:
The politicians have convinced voters that they should vote for the party whose policies they want, and that a vote for an independent or smaller party is a wasted vote because they cannot influence policy. This make reform from the outside difficult, while the way parties are run make reform from the inside difficult.
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Anonymous Coward, 14 Dec 2012 @ 11:36am

Re: Re:
So elections are about the only way of replacing politicians, where the party system largely ensures candidates with similar views and attitudes. That could make changing things difficult.
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Anonymous Coward, 14 Dec 2012 @ 12:13pm

Re:
That is going to be increasingly difficult, as the security services have access to the information that would allow them to influence election results, by attacking by various means candidates that threatened their power.
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Anonymous Coward, 14 Dec 2012 @ 12:16pm

Re: Re: Re:
That could make changing things difficult.

I know of no safe repository of the ultimate power of society but the people. And if we think them not enlightened enough, the remedy is not to take power from them, but to inform them by education.

�� Thomas Jefferson, at Monticello, Sept. 28, 1820
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Wally (profile), 14 Dec 2012 @ 1:30pm

Re: Re: Re:
You just cited Senator Byrd of West Virginia...
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Anonymous, 14 Dec 2012 @ 1:39pm

Re:
And what gave us this government? The constitution, of course.
You don't need to be an anarchist to see through the lies and evil of government or break free from the illusions the constitution-worshippers hold...but it helps.
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nasch (profile), 14 Dec 2012 @ 4:21pm

Re: Re:
That is going to be increasingly difficult, as the security services have access to the information that would allow them to influence election results, by attacking by various means candidates that threatened their power.

I don't think he's talking about elections.
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nasch (profile), 14 Dec 2012 @ 4:22pm

Re:
If you look at what the constitution says, most of the actions of government are against what it allows.

Well Mike only has so much time to write about these things. ;-) Seriously though, if the government followed the Constitution it would look very, very, different. Just obeying the interstate commerce clause alone would be a massive shakeup.
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Disgusted, 14 Dec 2012 @ 4:54pm

Our Wonderful Gummint
Originally Posted: Jul 9th, 2012 @ 10:08pm
Let's step back a bit and look at a few things.

Federal Oath Of Office -

"The current oath was enacted in 1884:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

Each and every one of our esteemed congresscritters, and the members of the Executive branch, are blatantly violating their oaths of office. In most cases, they are also violating the duties of their offices. They are sworn to uphold and protect the Constitution. Instead, they are attacking it at every turn.

They are sworn to "well and faithfully discharge the duties of the office on which I am about to enter". Instead, they ignore or directly violate those duties with impunity. They seem to regard Federal service as license to print money, curry favor with the rich and powerful, and directly ignore the reason they were elected or appointed.

Somebody needs to grab them by the scruff of the neck and shake them up a little. Some prison time wouldn't hurt.

I don't know, yet, what to do about it. They're pretty deeply entrenched. But there must be an answer somewhere.

====
Follow the money. Self-interest rules this earth despite all differing claims.
====
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Mike Brown (profile), 14 Dec 2012 @ 6:59pm

Re: Re: Re:
Year after year, voters do the same dumb stuff. We spend all year pissed off at what's going on, and then we vote for incumbents because we don't know any better.

If you don't follow politics, it's okay not to vote. I'd rather have abysmal numbers at the polls, as long as those who DID vote, knew what the heck they were doing.

Pro tip: If you have no other clue who to vote for, choose the candidates you've never heard of. Odds are good it's because they're not as deeply indebted to special interests.
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Anonymous Coward, 14 Dec 2012 @ 7:11pm

Re: Re: Re: Re:
Pro tip

You're a professional? A professional voter? Really?

How �� interesting. �� Wow. �� I've never actually had a chance to chat with a �professional voter�. At least, not anyone who admitted it. �� Before now.

How did you get started?
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G Thompson (profile), 14 Dec 2012 @ 8:27pm

Re: Re: Re: Re:
So basically what you are all saying in reply to me is that In America there are once the politicians are elected to office there are no actual in practice checks or balances to stop them changing your constitution, unlike with us in Australia the actual people have to choose independently of any election or what the actual 'powers that be' want.

WoW!
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Anonymous Coward, 15 Dec 2012 @ 3:30am

Once congress fails to follow the Constitution that they are sworn to uphold, America becomes an Authoritartian Dictatorship. That means our elected leaders are only 'pretending' that America is still a Democracy.

The Nation Defense Authorization Act (NDAA) of 2012 also violates American citizen's 5th and 14th Constitutional rights, because it grants the Government the authority to detain US Citizens indefinitely, without so much as a trial. The US Government is currently violating at least 3 Constitutional Rights. The 4th, 5th and 14th Amendments, maybe even more. So that's at least 3, count'em 3, Constitutional Rights that the US Government is currently in violation of.
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Anonymous Coward, 15 Dec 2012 @ 9:08am

Re: Re: Re: Re: Re:
Why would they bother, they simply ignore it as though it were not there.
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vet1370, 17 Dec 2012 @ 7:26am

Re:
Actually, a "Constatutional Congress" has to be called. Its seperate and then 3/4ths of the state legislatures have to approve the ammendment.
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William, 19 Dec 2012 @ 5:58am

Cover-up
Stand by, hear comes the cover-up and you will drink it up like cool-aid.
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