Unreasonable Search and Seizure: Democracy and The Fall of the 4th Amendement

from Malcontends.blogspot.com

In the name of security the NSA continues to collect Americans' phone and email data. Please read what the Fourth Amendment says. Is there "probable cause" that ALL of us are terrorists? Of course not, and ex-president Jimmy Carter, in between hurling diatribes at Israel and supporting (at one time, democratically elected) radical Islamists in Egypt, complains that something has been lost.

Former U.S. President Jimmy Carter … in the wake of the NSA spying scandal criticized the American political system. “America has no functioning democracy,” Carter said Tuesday [July 16, 2013] at a meeting of the “Atlantic Bridge” in Atlanta.(link here or  here)

 As usual, Carter isn't quite correct, but this time he is heading in the right direction. As shown by the writings of Aristotle and the actions of Robespierre, a democracy can be a tyranny. A constitutional republic, however, protects minorities from being trampled by the majority. We are not a democracy; we are a constitutional republic. For example, Congress could easily pass a law restricting the free speech of racists, terrorists, and communists, but the courts would not allow it (I hope). The Bill of Rights, that is, our Constitution, protects everyone's liberties, even the liberties of those that are unpopular, and protects those liberties despite the votes of the majority. Does our democracy function? Yes. Is it able to check the power of the NSA? Currently, no! That is what Carter is really saying. How did this come to pass?

Every three months a secret court approves the NSA's searching of American citizens. The (July 7, 2013) New York Times explains:

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said....In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said. The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said. (link here)

Don't worry. Everything is perfectly legal. Justice was executed in exact accordance with the law in Imperial Rome, Communist Russia, and Nazi Germany too, by the way. You have almost no rights against the NSA's unlawful search and seizure because a secret court,  far removed from any democratic accountability, transparency, and checks and balances, broadened a narrow Supreme Court ruling in order to completely gut the Fourth Amendment. The FISA judges may say that NSA's data mining of millions of innocent Americans does not run afoul of the Fourth Amendment. I believe that our constitutionally accountable John G. Roberts' judicial branch should give an opinion.

If a 2016 presidential candidate comes out strongly against this abuse of federal power (like, ironically, the 2008 Obama), he or she will get a lot of support, especially from Jimmy Carter.

Postscript July 26, 2013: The Obama administration fights a Congressional  amendment to cut the NSA's budget. Unfortunately, the pro-NSA forces won in Congress, though the vote was close. Could this scandal create a left-right alliance? (links here and here) See also how Obama resembles Bush here in W's Apprentice here John Roberts himself picks the FISA judges (link here).