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How Do You Cancel The Fourth Amendment? By Congressional Approval

Saturday, February 18, 2006

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.
~ Amendment IV, The Constitution of the United States of America
Government shall not violate the right that you and I have to be secure from unreasonable searches and seizures. The pivotal word for me is 'unreasonable'. What is considered 'unreasonable' and who gets to decide? In my opinion, we Americans are completely secure from unreasonable searches and seizures. If an agent of government wants to go through my things, he must go to a judge and explain the circumstances. If the judge, being an impartial third party, decides that his suspicions are founded on fact, he issues a warrant allowing that agent permission to conduct a search of my property. This is how the search and seizure moves from unreasonable to reasonable.
Let's look at this a different way. Power and authority resides in you and I as individuals. If we individually are also members of a larger community, we can decide to form a governing body for our community. At that point, each individual must vest in that governing body a portion of our power and authority so that the governing body can act on our behalf. This is where phrases like 'By the power vested in me' comes from. Original power and authority always resides in each of us. So, when questions arise asking whether a particular activity can or cannot be done, we need to ask ourselves whether we have the authority as individuals to carry out that action on our neighbors. If we do not have the power and authority as individuals, we certainly wouldn't have it as a group or government. That would be mob-rule, and it would be wrong. We must remember that an individual's rights are always paramount. The acts of searches and seizures are part of the police powers of the state. We grant these powers to government, and therefore government cannot have any more power than what each of us has individually.
Can you go to your neighbor's house and rifle through his belongings while he's at work? Absolutely not! That would be a violation of his right to privacy as well as his right to be secure from unreasonable searches and seizures, not to mention trespassing. If I cannot do it as an individual, can I do it if ninety-nine of my best buddies and I decide that it is in our best interests to see what you've got locked up in your home? Or if we decide that we want to read your mail to see who your corresponding with? Or to listen in on your phone calls to see who you're talking to and what you're discussing? The answer to each and every one of these questions is no. Your "right to be secure from harm" does not and can never trump someone else's right to privacy or to be secure from search and seizure without cause. It doesn't hold that a larger group of individuals claiming rights outweighs a smaller group claiming rights. Individual's rights can never be canceled out by the will of the majority. There is no greater manmade authority that will change this fact.
Let's presume that there is no governing body for a moment. Speaking as an individual, let me ask you what you would consider appropriate for me to do in the following case. How could I search my neighbor's belongings if I suspected that he were in violation of some law? The first rule is probable cause. This basically means that I have made a reasonable determination that my neighbor is violating the law. To support this, I would need to have some type of evidence. I must always back up my suspicions with evidence. I simply cannot get a "bad feeling" about a guy and then rummage through his things to see if my intuition was correct. To better illustrate this, let us look at what is practiced in the realm of science. When a scientist begins to form a hypothesis about observable events, he has to move from hypothesis to theory being supported by facts. Hypotheses are derived from assumptions while theories are supported by facts. Back to our case, lets say I observe my neighbor hauling black plastic bags out of his house and then placing them in the trunk of his car. As he carries them out, I can see red liquid dripping from holes in the bottom of the bags. In addition to this, I haven't seen his wife for a couple of days and I usually see her coming and going everyday. Do I have probable cause to believe that my neighbor has killed and dismembered his wife and that I have observed him attempting to dispose of the body? Any reasonable person would have to agree that this was the case. I would have probable cause, supported by fact, to then search his property to see if he committed a crime.
Here's something we need to understand about our little scenario. If my neighbor comes home while I'm rummaging through his stuff, he has every right to accuse me of trespassing and violating his right to privacy as well as violating his right to be secure from unreasonable searches and seizures. I would be bound to make my case before an impartial third party as to why I felt I had to violate his various rights. If my case doesn't hold water, I should be charged, period. If I lived on an island all alone, I wouldn't need to worry about any of this, but I don't. If I lived in a community which was made up of just two individuals--me and the other guy--we'd have to settle these matters between us. But I don't. I live in a community of hundreds, and therefore I am answerable to that community for my actions. I am expected by my community to be civil and I expect others in my community to be civil, too. When someone runs afoul of those expectations, he must answer for his actions. This is done by bringing all the affected parties before an impartial third party (a judge) to make their arguments.
Lets say my neighbor was arrested by the police because they believed he murdered his wife. Let's also say that the police arrived at their conclusion because I discovered evidence that he dismembered his wife after I searched this guy's home. He has every right to question my method of obtaining that evidence because he has the right to privacy, as well as the right to be secure from unreasonable searches and seizures. Remember what I said before? One right doesn't trump another. All rights are to be respected under law. I better have all my evidence ready for inspection by the defense because I essentially violated this guy's rights. If he is convicted of murder and ends up being executed or imprisoned for life as punishment, I have a responsibility to him and my community to make sure my evidence is solid.
This leads us to ask the question: At what point does our neighbor's right to be secure from being searched or having his property seized or having his privacy violated become suspended? This question is actually a lot easier to answer than most people realize. These rights we are discussing are no more nor are any less important than say his right to life or his right to practice a religion or his right to defend his property from thieves. The point where he loses his claim on these specific rights is the moment he violates his wife's right to life. Until that event happened, his rights were perfect under law. More to the point, it would take evidence supporting a claim that he violated his wife's rights to cause the suspension of him being able to claim the right to privacy or to be free from search and seizure under law. This is why all searches must be supported by oath or affirmation and must describe in detail the facts surrounding the violation. And this all must be presented before an impartial third party to prevent bias or prejudice against any parties involved. To restate this position for clarity, it takes evidence of a violation of another's rights to cause your rights to be suspended.
Over the years, actors within our government have worked tirelessly to erode our rights of privacy and to create special rules allowing government agents to conduct warrantless searches of our possessions as well as illegal seizures of our property. All of these erosions have been made possible by interpretations of our laws by various courts. Unfortunately for individuals, we are not always the prevailing party when it comes down to whom has supremacy under law. When it's a contest between an individual's rights versus a governing body, the governing body will usually be victorious. People erroneously think that our government's primary duty is to enforce the will of the masses. Governments are first and foremost instituted to secure and protect the rights of the individual not to enforce the arbitrary will of the majority. To think that our government was created for this purpose is a perversion perpetuated by the ignorant masses assuming that we all live under a form of democracy where the majority rules supreme. This is simply not the case. Our form of government, from it's inception, was always meant to be a republic. As a matter of fact, the drafters of the Constitution of the United States of America specifically "guaranteed to every State of this Union a Republican Form of Government." (Art. IV, Sec. 4) When asked by a lady in the crowd, about the kind of government the Constitutional Convention created, Benjamin Franklin, responded to her by saying, "A republic, madam, if you can keep it!"
Knowing all this, you can now understand why I was so upset to learn that the President of the United States had authorized what he called warrantless eavesdropping on communications of suspected al Qaeda operatives. He claimed that he authorized the National Security Agency to eavesdrop on communications originating outside of the United States by known al Qaeda operatives coming into the United States. The rub was that the person at the other end of the communications link would most likely be an American citizen. All Americans are protected by a compact with their government to be free from unreasonable searches and seizures. In order for the President or the Attorney General to be able to listen in on these communications, they must go before an impartial third party and present their evidence supporting their claim that the American citizen has violated the law. It is the exclusive duty of the third party alone to authorize any suspension of that American's right of privacy or that American's right to be free from an unreasonable search or that American's right to have his property seized by his government based on the facts and details submitted to him, supported by sworn statement. Agents of our government have neither the power nor the authority to arbitrarily ignore or side-step these rules.
When I heard that Congress was upset with the President and his administration and that they were going to look into his secret spy program, I was happy. There could have been no clearer case of abuse by government officials than this example of a blatant disregard for our laws. One only needs to read the Fourth Amendment to the Constitution and Title 50, Chapter 36, of the United States Code to see that their actions were in direct violation of all accepted and understood practices. I thought my elected representatives would stand up for my rights and impeach anyone caught in this web of deceit perpetrated against the American citizens. I discovered I was wrong. I discovered that members of Congress knew about the program the whole time. I discovered that they gave the President a pass to conduct their warrantless surveillance operations of American citizens. I discovered I had been betrayed by my government.
I read in an article that Congress had decided not to investigate the administration. Senate Republicans had decided to block the proposed investigation because the chairman of the Senate Select Committee on Intelligence said he had reached an agreement with the White House to pursue legislation that would clarify rules surrounding the controversial National Security Agency surveillance program. Senator Pat Roberts, a Republican from Kansas, said the vote was put off because the White House had "committed to legislation and had agreed to brief more Intelligence Committee members on the nature of the surveillance program." Let me be clear. I don't care if every single member of Congress is privy to the inner-workings of the President's secret surveillance program. He has circumvented the Forth Amendment requirement to present evidence of a crime before an impartial third party, in this case the FISA Court, and therefore is in violation of the supreme law of the land. Why, dear reader, is this concept so hard for them to understand?
The White House responded to these events by stating, "We maintain that the president does not need additional congressional authority." Dana Perino, a White House spokeswoman, went on to say that the Bush administration would be willing to discuss a GOP proposal that contains "some good legislative concepts that would not undermine the president's ability to protect Americans." Senator Mike DeWine, an Ohio Republican, offered up a proposal that would specifically authorize the NSA to eavesdrop on international calls involving U.S. residents and suspected terrorists overseas without first obtaining a court warrant. I hope you had to re-read that last sentence, too. If Congress is guided by the same set of rules as the rest of our government, rules established in our Constitution, then how can Congress "specifically authorize the NSA" to violate our rights? They can't and Mike DeWine knows it! He should be thrown out on his rear for even making such a claim. But, how do I know that he knows the President's program is unconstitutional? Because, he told me... on Fox News.
You see, Mike DeWine sat down with Jim Angle of Fox News to discuss his proposal. His new legislation would exempt the President's program from FISA, which is the law that governs domestic surveillance, but would add additional congressional oversight. He says that when a known terrorist outside the United States communicates with someone inside the United States, the President would be allowed to eavesdrop on this without needing a warrant, regardless of whether the recipient was an American citizen or not. The President could do this because the Congress would "authorize" his surveillance program. Mr. DeWine continues by directly addressing whether his proposed program is legal or not. He states, "You know, there's been some controversy about whether this program is legal or is not legal. I think we need to get beyond that and the vast majority of the American people think these calls need to be listened to. But, we don't want to have any kind of debate about whether it's Constitutional or is not Constitutional. So, I think we need to put that beyond this." Mr. DeWine is attempting to cleverly disguise this clear violation of our Constitution by stamping it with Congressional approval. However, his new proposal doesn't change the fact that the Fourth Amendment still requires a legally obtained warrant in order for them to suspend an American citizen's rights. He basically told Americans that if they wanted to have a discussion on whether or not the President violated our Constitution, we could just shut the hell up, because Congress wasn't interested in listening.
I got news for you, Mr. DeWine. I don't care how much lipstick you put on this pig, it still doesn't change the fact that the President and all his henchmen that participated in his program are guilty of violating our Constitution. Furthermore, Mr. DeWine, by deliberately abstaining from your duty to bring charges against them, your just as guilty as they are.


Blogger Mark said...

Can you go to your neighbor's house and rifle through his belongings while he's at work? Absolutely not! That would be a violation of his right to privacy as well as his right to be secure from unreasonable searches and seizures, not to mention trespassing.

Though I certainly agree that Bush is violating our rights, your statement is not quite accurate. I don't have a constitutional right to be secure from unreasonable searches by you. I have the right to exclude you from my property. The right to be secure from unreasonable searches is a limitation placed on government activity and not individual acts. Just a little quibble.


3:51 PM  
Blogger Don Bangert said...

Mark, when I posed the question of searching your neighbor's house, I never intended that it be confined to Constitutional limitations. I understand that the Constitution doesn't protect me from you. It only protects me from government's actions. Having said that, I still don't believe anyone has the right to invade the privacy of another man's home... unless he has a pretty damned good reason for doing it! You or I may not have a "Constitutional" right to be secure from unreasonable searches, but we most certainly have an inherent right.

4:41 PM  

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