Wednesday, April 2, 2008

Bush Administration Spies On Its Citizens, Avoids Constitution

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For almost two years following the terror attacks of September 11, 2001 the Bush administration believed that the fourth amendment of the United States Constitution, which prohibits warrantless "searches and seizures," apparently did not apply to them.

Here is the text of the fourth amendment:

"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."

The opinion that the Bush administration did not have to obey the U,S. Constitution on the matter of warrants was expressed in a secret memo of October 23, 2001 by then-deputy assistant Attorney General, John Yoo.

The existence of Mr. Yoo's secret memo was disclosed this week in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit

The footnote states that "Our office (The Department of Justice) recently concluded that the Fourth Amendment had no application to domestic military operations," referring, of course, to Mr. Yoo's secret memo of 2001, which has not yet been released.

This comes as the Department of Defense is being sued for illegally using the FBI to conduct warrantless domestic searches on its behalf. These searches were given the green-light to go following Mr. Yoo's memo which said that warrants were not needed by the government to search the emails and calls of American citizens, even though the U.S. Constitution clearly states otherwise.

We conservatives should be concerned that Department of Defense has illegally used the FBI to conduct domestice military operations involving un-constitutional searches and seizures which have unlawfully invaded the privacy of many American citizens, a practice that could have led to bad results, indeed.

Last June, in the case of Warshak v. United States, the Sixth U.S. Circuit Court of Appeals ruled that the Federal government, in all matter of seizures and searches, "must be in subordination to the great principle (forbidding warrantless searches and seizures) embodied in the fourth amendment of the Constitution."

Thankfully, in this matter, we have the judiciary doing precisely what it was intended to do, that is, interpreting the Constitution, in this case, the 4th amendment. Those who do not follow our laws know no limitations.

18 comments:

DCassidy said...

Thanks for the excellent post on an issue that needs far more attention than it has received from Congress and the media. Laurence Tribe wrote several years ago: "Even if Congress were to repeal the laws securing telephone privacy, or if phone companies found loopholes to slip through when pressured by government, the Constitution's Fourth Amendment shield for ''the right of the people to be secure" from ''unreasonable searches" is a shield for all seasons, one that a lawless president, a spineless Congress, and a complacent majority of citizens -- who are conditioned to a government operating under a shroud of secrecy while individuals live out their lives in fishbowls -- cannot be permitted to destroy, for the rest of us and our children."

RICH said...

Can you list all those people that have been subverted? Can you list all the seizures? I would love to meet all these people the government has put away.

Peter said...

The government does not keeps "lists" when it does something illegal.

Anonymous said...

who's side are all you whiners on, someone identify an actual case for me where a search was "unreasonable" and I may reconsider my opinion you are all traiters...

Peter said...

The "traitors" are the ones who are ignoring the 4th amendment of our Constitution. Google "Warshak v. United States" and you'll find what you're looking for.

Anonymous said...

There is no expectation of privacy for calls across our borders, just as the courts have ruled for personal travel across borders, no warrant required.

Anonymous said...

Just wait until it's a Democratic admistration doing the spying. The howls of protest on the right will be deafening.

mike volpe said...

The fourth amendment applies to search and seizure during a criminal investigation. It does NOT apply to investigating an act of war that hasn't even happened yet. You cannot apply criminal law to warfare.

Presidents have since the beginning of our republic spied on our enemies during wartime and none of them have ever asked for permission from a judge before doing so. Here is how I wrote about it...

http://theeprovocateur.blogspot.com/2008/02/revisiting-fisa.html

Peter said...

That's ludicrous. Read the constitution.

Peter said...

Btw, there's no such thing as an "act of war that hasn't even happened yet." An act of war either happens or it doesn't.

RememberSekhmet said...

Problem is, a call from Foreign Country A to Foreign Country B that gets routed through the United States would need a warrant. Better hope they aren't planning to blow *your* city up.

Peter said...

If the government doesn't want to follow the 4th amendment, then they should change the constitution. Don't you understand that if the government chooses not to obey one amendment, it can choose not to obey any amendment?

How would you like the Bush government ignoring the second amendment taking away privately-owned firearms in the name of "national security" like they are doing now with the fourth amendment?

Laws are made to be followed, not ignored. That's when tyranny starts to set in if you've read your history, instead of listening to pundits brainwash you all day.

StormWarning said...

I don't see a problem with the Spy Satellite program. The NAO will save lives.

DR said...

Peter,

This is one of the best posts I have read all year. If we had more men like you our Republic would be a lot better off.

Peter said...

8:27,

Would you still support the government if it starting taking privately-owned guns in order to "save lives?"

Stormwarning said...

The question of taking rpviately owned guns as you put it is totally not related to the question of surveillance security. To answer the question, though, no, I would not support such an action by the government.

However, I believe that your concerns are overblown. What are the NAO satellites going to be doing that will infringe on your life or your rights?

Now, as for your reference to Warshak v US, I sumit to you that if you go beyond the EFF, you will find that legal minds do not always think alike. Thus, you have this: http://volokh.com/posts/1176832897.shtml

None of my rights have been violated or infringed since Sept. 11th (or frankly before that either). I've been photographed at college demonstrations back in the late 60's, and still can get into certian federal buildings. My rights have not been infringed by the Patriot Act(s) and they will not be infringed by FISA or its expansion.

The rights of nearly 3000 people were infringed on the morning of Sept. 11th. This we can debate until we are both dead and gone. Privacy is not something that is guaranteed.

Anonymous said...

How would you like an FBI agent reading your emails and bugging your phone without a warrant? Wouldn't you be mad?

Now imagine that the FBI branched out beyond the 4th amendment and started taking people's guns and arresting them indefinitely?

This surveillance stuff may not seem like much to you, but once the government starts ignoring the constitution there'll be no stopping them.

Stormwarning said...

To start with, posting as "anonymous" takes my purposeful anonymity at least one step beyond. Secondly, why would an FBI agent be looking at my emails?

Did you bother to read the Volokh post?

Thankfully, I am not a lawyer. But I repeat, search and seizure debates aside, there is no Constitutionally guaranteed right to privacy.

Why would the FBI be bugging my phone?

Thus, you are opposed, are you not, to surveilling suspected terrorists? Or perhaps in your anonymity, you are a target of FISA?