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Mr Obama’s pre-vacation press conference made one thing clear: The NSA will continue to snoop on your private communications and mine. Black Jesus, as his staffers call him, has never yet honored his oath to uphold the Constitution. He does not propose to start now.
He has a bogus birth certificate on the White House website, raising serious questions that no one wants to ask about whether he is a natural-born citizen, as the Constitution requires. He wants to circumscribe the right to bear arms, which the Second Amendment guarantees. Now he wants to go on secretly monitoring your personal communications. That is against the Constitution, too.
The Fourth Amendment is entirely clear: “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.”
Every time any agency of your federal or state administrations wants to search or seize your property, including your phone calls, mail and emails, it has to have probable cause that you have done something wrong; it must attest to that probable cause in court; and it must describe which place it intends to search and which things it wants to search. No ifs. No buts. No exceptions. That is the law.
Under the Fourth Amendment, the NSA has absolutely no right to exercise blanket surveillance over the communications of every U.S. citizen. That is against the law.
The Fifth Amendment is also entirely clear: “No person … shall be deprived of … property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Your communications are your private property. The NSA is helping itself to them without due process of law. And when did you last get a fat check from Uncle Sam in return for helping himself to your most intimate secrets? Taking your private property without a court order and without payment is twice against the law. Send the NSA an invoice.
The infamous Section 215 of the Patriot Act flagrantly defies the Constitution. The act establishes a secret court that flouts the principles of natural justice by not meeting in public and not hearing both sides of the case before rubber-stamping demands by the NSA, and heaven knows how many other busybody agencies intrude upon your privacy and help themselves to your property. Only the government’s case is heard. No one speaks for you and me.
Section 215 gives this gruesome, Soviet-style Foreign Intelligence Surveillance Court the power to tell anyone to hand over “any tangible things,” including details of your phone calls and emails, provided that they are “relevant to an authorized investigation” into terrorism or foreign intelligence-gathering.
It seems the NSA has convinced the kangaroo court that everything you or I say or write is “relevant.” No doubt its argument ran something like this:
“If our computers and analysts had been able to study every pattern of communication and monitor every phone call or email or item of mail, we might have been able to prevent 9/11. So anything we want to see is relevant. It saves lives. Hand it over, or else. Privacy kills.”
Whereupon some overpaid, cobweb-infested judge reached out a trembling, arthritic, liver-spotted hand for the rubber stamp.
The NSA has a point, though. The late R.V. Jones, who advised Churchill that the Germans had radar too and later became director of scientific intelligence, once told me that every telephone call in Britain had been listened to before World War II, so that every German spy in our islands was rounded up as soon as war was declared.
Though he did not know it, he was not quite correct. One day during the war a very highly placed Nazi spy in the Air Ministry countermanded Jones’ order to send up aircraft equipped to bend the X-beams that guided the German bombers to their targets. That was why Coventry was bombed. That undetected spy killed thousands. His telephone calls had not been listened to because he was too senior.
Intelligence is about saving lives like those of the innocents massacred in Coventry or New York. So the NSA, CIA and FBI should be allowed to do all the snooping they want, right?
Wrong. Very wrong.
One of the central objectives of most terrorist organizations is to bomb the victim country into taking away from its citizens the very freedoms the activities of our security services are supposed to defend. The Patriot Act was precisely the kind of knee-jerk, freedom-destroying over-reaction that the terrorists had hoped for. It turned America from a free country into a police state, overnight.
So what should have happened?
Before the Patriot Act was enacted, there should have been – and must now be – a debate about whether and how to amend the numerous provisions of your Constitution with which the act manifestly and grievously conflicts.
As things stand, Section 215 is contrary to the Fourth and Fifth Amendments. What is more, in not allowing those subject to the kangaroo court’s orders even to mention the existence of the orders, it is also contrary to the free-speech provision of the First Amendment. The Patriot Act stands in direct, material, manifest conflict with at least 30 percent of the Bill of Rights.
At the very least, the custard-faced judges should be obliged to publish their reasons every time they grant the NSA and other agencies powers that flagrantly flout the Constitution. And some public-spirited citizen should take the kangaroo court to the real courts for acting unconstitutionally.
Any law – such as the Patriot Act – is invalid and unlawful insofar as it is contrary to the Constitution. A real court would have known that. The kangaroo court did not know that. Or, worse, if it knew, it did not care.