Proposing the Evisceration of the Fourth Amendment
The Administration, after violating FISA for years while claiming the President as Commander in Chief during Wartime is a King, now wants the Congress to codify violations of the Fourth Amendment:
The Bush administration yesterday asked Congress to make more non-citizens subject to intelligence surveillance and to authorize the interception of foreign communications routed through the United States. Currently, under the 1978 Foreign Intelligence Surveillance Act, individuals have to be associated with a foreign terrorism suspect or a foreign power to fall under the auspices of the FISA court, which can grant the authority to institute federal surveillance. . . . The proposed revisions to FISA would also allow the government to keep information obtained "unintentionally," unrelated to the purpose of the surveillance, if it "contains significant foreign intelligence." Currently such information is destroyed unless it indicates threat of death or serious bodily harm.
This would run afoul of the Fourth Amendment. In U.S. v. Duggan the Second Circuit explained why FISA as currently written is constitutional:
We regard the procedures fashioned in FISA as a constitutionally adequate balancing of the individual's Fourth Amendment rights against the nation's need to obtain foreign intelligence information. The governmental concerns are detailed in the passages quoted above from Keith and the legislative history of FISA, and those concerns make reasonable the adoption of prerequisites to surveillance that are less stringent than those precedent to the issuance of a warrant for a criminal investigation. See generally United States v. Belfield, 223 U.S. App. D.C. 417,692 F.2d 141, 148 (D.C. Cir. 1982) (examining in camera review procedures of FISA (see Part II. B. 2., infra)). Against this background, the Act requires that the FISA Judge find probable cause to believe that the target is a foreign power or an agent of a foreign power, and that the place at which the electronic surveillance is to be directed is being used or is about to be used by a foreign power or an agent of a foreign power; and it requires him to find that the application meets the requirements of the Act. These requirements make it reasonable to dispense with a requirement that the FISA Judge find probable cause to believe that surveillance will in fact lead to the gathering of foreign intelligence information.*fn5 Further, if the target is a United States person, the Act requires the FISA Judge to determine that the executive branch's certifications pursuant to 1804(a)(7) are not clearly erroneous in light of the application as a whole, and to find that the application properly proposes, as required by 1801(h), to minimize the intrusion upon the target's privacy. We conclude that these requirements provide an appropriate balance between the individual's interest in privacy and the government's need to obtain foreign intelligence information, and that FISA does not violate the probable cause requirement of the Fourth Amendment.
The Administration' proposals take away the basis for the Second Circuit's finding that FISA does not violate the Fourth Amendment. The Administration's proposal would remove the nexus to a foreign agent requirement and the minimization requirement.
It is patently unconstitutional.
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