It's Official, The Fourth Amendment Is DeadSubmitted by emalvini on Thu, 02/28/2013 - 13:19
by Mike Masnick | TechDirt
from the but-but-terrorism dept
We've been discussing the now annual rush to re-approve the FISA Amendments Act, despite the fact that the original bill was on shaky constitutional ground, and it's been made much (much, much) worse due to a secret interpretation of what the law means (a secret interpretation that many in Congress apparently have no interest in finding out about). Andrew Napolitano, a former judge, has penned an interesting column laying out many of the reasons why the whole thing is completely unconstitutional.
First, he notes that the establishment of FISA itself is likely a violation of the 4th Amendment:
The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard -- thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution -- of probable cause of status. The status was that of an agent of a foreign power. So, under FISA, the feds needed to demonstrate to a secret court only that a non-American physically present in the U.S., perhaps under the guise of a student, diplomat or embassy janitor, was really an agent of a foreign power, and the demonstration of that agency alone was sufficient to authorize a search warrant to listen to the agent's telephone calls or read his mail.