The Invasion of America

I've just read an opinion piece in the LATimes that brings home how deeply our Constitution has been comprimised from Nixon to Bush. The fact that the piece was written by Andrew P. Napolitano, senior judicial analyst at the Fox News Channel, makes it doubly alarming, for if someone associated with Fox News thinks we're in danger of a dictatorship, then we really are!

The original essay is at this link:
http://www.latimes.com/news/opinion/la-oe-napolitano18feb18,0,1665050.story

Please read it. It is very chilling. Here is a summary:

The 4th Amendment has been uniformly interpreted as prohibiting the government from conducting electronic surveillance of anyone without a search warrant issued by a judge based on probable cause of a crime. The courts have held that that requires a warrant by a judge, and only after government agents, under oath, have convinced the judge that there is probable cause of a crime. The 4th Amendment is one of only two instances in which the founders wrote a rule of criminal procedure into the Constitution itself, so that no Congress, president, or court could tamper with it.

In 1978, in response to Nixon's abuses, Congress passed the Foreign Intelligence Surveillance Act, or FISA, which looks like a reaffirmation of the 4th Amendment, providing that no electronic surveillance may occur by anyone in the government at any time under any circumstances for any reason other than in accordance with law, and no such surveillance may occur within the U.S. of an American other than in accordance with the 4th Amendment.

But FISA allows federal agents to appear in front of a secret court and to get a warrant based only on the target of surveillance being an agent of a foreign government, even a friendly government, and no illegal behavior need be shown. Later amendments removed the "agency" requirement, requiring only that the target be someone physically present in the U.S. who was not born here and is not an American citizen, and eliminated the 4th Amendment standard of probable cause. The amended FISA left one safeguard for the 4th Amendment: The target of spying could not be tried on the basis of FISA evidence, but only on evidence obtained pursuant to probable cause of a crime (that is, through a constitutional method).

That changed with the Patriot Act, passed after 9/11, and its later versions. These laws allow FISA evidence to be used to prosecute and instruct federal judges that the evidence is admissible under the Constitution -- ignorning the fact that Congress can't decide what is constitutional and can't tell federal judges what evidence is admissible--only judges can do that.

Then the Bush administration demanded, and Congress gave, the authority to conduct electronic surveillance of foreigners and Americans with no warrant, even though more than 99% of all FISA applications are approved. The so-called "Protect America Act of 2007" (which expired at the end of last week), gave the government carte blanche to spy on foreign persons outside the U.S., even if Americans in the United States with whom they may be communicating are illegally spied on in the process. Director of National Intelligence J. Michael McConnell told the House Judiciary Committee last year that hundreds of Americans' conversations and e-mails are spied on annually as a consequence of the warrantless surveillance of foreigners outside the United States.

We should all tremble at this frontal assault on our rights. The Constitution protects all persons. The government should be required, as it was until FISA, to obtain a 4th Amendment warrant to conduct surveillance of anyone, American or not, in the U.S. or not. If we lower constitutional protections for foreigners and their American associates, for whom will we lower them next?