September 13, 2012
On Wednesday, the House of Representatives voted to extend amendments added in 2008 to the Foreign Intelligence Surveillance Act. The Foreign Intelligence Surveillance Act’s Amendments Act (FAA) in essence reduces the Fourth Amendment to a nullity.
The unconstitutional extension passed by a vote of 301 to 118. 111 Democrats and seven Republicans voted no.
The amendments allow the government to electronically intercept domestic phone calls, emails and other communications without going to a court and obtaining a search warrant.
The Fourth Amendment states: “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 government exploited fear over cyber attacks to reauthorize the amendments. “Foreign nations continue to spy on America to plot cyber-attacks and attempt to steal sensitive information from our military and private sector industries,” said Rep. Lamar Smith of Texas who sponsored this bill and an earlier one, the internet censorship bill SOPA.
Smith said Congress has “a solemn responsibility to ensure that the intelligence community can gather the information” necessary to prevent espionage, theft and terrorism.
Rep. Trey Gowdy, a Republican congressman from South Carolina, said the attack on September 11, 2001, justifies violating the constitutional rights of millions of Americans. “If we could come together to remember 9/11, surely we can come together to prevent another one,” he said.
“This is about foreigners on foreign soil. It’s not a dragnet,” said Rep. Mike Rogers, R-Mich., chairman of the House Intelligence Committee.
Dan Lungren, a Republican from California, said reauthorizing the FAA is “critical to the protection of the American people” from the likes of al-Qaeda.
According to David Kris, a former top anti-terrorism attorney at the Justice Department, the government can ignore the Fourth Amendment if the subject of a wiretap or eavesdropping is al-Qaeda.
“For example, an authorization targeting ‘al Qaeda’ – which is a non-U.S. person located abroad – could allow the government to wiretap any telephone that it believes will yield information from or about al Qaeda, either because the telephone is registered to a person whom the government believes is affiliated with al Qaeda, or because the government believes that the person communicates with others who are affiliated with al Qaeda, regardless of the location of the telephone,” Kris writes in the 2012 edition of National Security Investigations and Prosecutions.
If we are to accept Kris’ argument, millions of Americans have communicated with al-Qaeda.
For more than a decade, the government, with the eager assistance of the telecommunications industry, has conducted a massive and unprecedented dragnet surveillance operation in direct violation of the Constitution.
In August, a federal appeals court ruled that the government can spy on Americans and violate their constitutional rights without fear of being sued.
“This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the executive branch responsible for intercepting telephone conversations without judicial authorization,” a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled.
The case concerned the government illegally spying on the now-defunct al-Haramain Islamic Foundation.
The amendments may face opposition in the Senate. Ron Wyden, a Democrat senator for Oregon, has used a procedural tactic to prevent a vote.