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).

Obama Miscalculates on Recess Appointments

President Obama has badly miscalculated the public's reaction to his "recess" appointments of Richard Cordray as director of a new consumer protection agency and appointments to fill three labor board vacancies. The move is blatantly unconstitutional. The Senate is still in session based on Obama's own Justice Department calculations. Additionally, the Clinton White House considered the Senate in session if they met once every three days, which the Senate did. According to John Boehner (R), the Speaker of the House (link):

This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department.  The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our constitution.

The White House disagrees, saying the Senate wasn't really in session. They were not conducting business so they did not really meet.

Jay Carney, the White House press secretary, said White House lawyers were confident Mr. Obama had the authority to make the appointment. “When pro forma sessions are simply used as an attempt to stop the president from making an appointment,” he said, then the president is within his rights to move ahead. (link)

Pro forma sessions are still sessions. The courts will decide whether Obama can make recess appointments any time he likes.

The Republicans refused to grant Obama his appointments because they ideologically oppose the creation of a new consumer protection agency, and they wish to keep Obama from claiming any "victories" in an election year. Obama probably felt that these Republican positions were politically unpopular, and he could weather any political storm by calling up his new-found Theodore Roosevelt-style philosophy of increased regulation of business. Indeed, he may win back some liberals that had lost faith in him. Thus a fight with Congress made sense.

Obama said that he just lost patience with Congress stonewalling him: “I refuse to take ‘no’ for an answer. I am not going to stand by while a minority in the Senate puts party ideology ahead of the people we were elected to serve” (link above). Do not let Obama's words enter your mind. This was a cold political calculation, earning political points by using Congress as the whipping boy. How do we know? The following headline says it all:  "Dem NLRB ‘recess’ appointments rushed, don’t appear on White House nominee list"  (link here).

However, he gravely miscalculated the political fallout from a court decision that goes against him. And that is probable. If the courts rule that Obama's recess appointments are illegal and did usurp Congress' power, not only does he lose the appointments, but he comes off appearing like a frightening authoritarian to the moderate voters.

Since Congress was doing a great job of being unpopular without any help from Obama, this fight can only damage Obama in the polls. It is a miscalculation similar to Franklin Roosevelt's court packing bill of 1937. During the Great Depression the American people recoiled from the idea of an imperial White House, able to rule without checks from the other branches. They will react similarly now.

January 25, 2013 and July 17, 2013 update:
I was wrong on the public's reaction but correct on the appointments' unconstitutionality. See Obama recess appointments unconstitutional here. A third district appeals court overturned Obama's appointment here. This court looked at the history and Founders' intentions for recess appointments, and concluded that recess appointments may be made only when Congress adjourns for a long time. Next up, Supreme Court. To be continued...
June 26, 2014 update:
In a unanimous decision the Supreme Court viewed the recess appointments as unconstitutional. While the ruling was not as strong as the lower court ruling against recess appointments, the message was clear.