Where does this President think he gets the right to repeal the 4th Amendment to the Constitution by secret executive order?
One of the things that I dislike about 2-minute news bytes is that they provide a superficial account of an issue that neglects the foundation of principles and values that lie underneath.
President Bush acknowledged that he signed a secret order authorizing the National Security Council to spy on American citizens without any court review or any warrant. He considered judicial review to be inconvenient and cumbersome. He claims that, as a result of these secret powers, his administration broke up several terrorist attacks, including one to bring down the Brooklyn Bridge with a blowtorch. There have been others. Bush praises his own actions on the grounds that he has saved American lives.
This sounds wonderful, doesn't it? And it all fits into a two-minute news broadcast.
Repeal the 4th Amendment
In fact, it is so wonderful that perhaps we should repeal the 4th Amendment to the Constitution. This is the Amendment that says:
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.
We can write it like the 21st Amendment (which repealed the 18th Amendment) so that it states, “The fourth article of amendment to the Constitution of the United States is hereby repealed.”
Except, that takes a lot of time and effort to go through the Amendment process. America was under attack, and we did not have time to amend the Constitution. It was time for a decisive President to make snap decision and suspend the 4th Amendment by executive order. When President Bush signed his secret order that allowed the NSA to spy on American citizens with no judicial overview, he made a secret decision to allow searches of American citizens without any warrant at all. So, it would be hard to make the case that he did not violate the Constitution.
But, maybe that's not such a bad thing. The Founding Fathers were human. They were capable of mistakes. They refused to outlaw slavery, for example. Perhaps another of those mistakes was their decision to put limits on government searches and seizures.
Where are the Terrorists?
Let’s turn to another news item that came out this week. Lisa Myers reported at MSNBC that it has acquired a secret Pentagon report identifying groups and activities that it had investigated over a 10-month period. In this case, the Pentagon seems to be operating on the principle that any group that takes a stand against the Iraq War is a legitimate target for surveillance.
The NBC report focuses on a group of 20 Quakers meeting in Florida -- a meeting found on the Pentagon's list of "suspicious incidents" and identified as a "threat". The article states, "A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a ‘threat’ and one of more than 1,500 ‘suspicious incidents’ across the country over a recent 10-month period."
So now we see that nearly anybody who opposes the Bush policy with respect to the Iraq War or his terrorist policy can be identified as a threat, and subject to government surveillance.
One implication of all of this is quite clear. If you are a part of an organization that disapproves of the Administration policies, and you have included some mention of the Iraq War as one of the things that you do not like, there is a far greater chance that a government agent is watching you than if you are not such a person.
In other words, President Bush has created a society in which outspoken supporters of his Administration supporters can rest comfortably that they are “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” However, outspoken critics of his administration have reason to suspect that they do not have as much reason to be “secure in their persons, houses, papers, and effects.”
It is as if the Constitution only applies to what a Republican may do to another Republican in good standing.
Unreasonable Searches and Seizures
There is, of course, this matter that searches and seizures are prohibited only if they are “unreasonable”. This concept of “unreasonableness” leaves a lot of room for interpretation. This makes it easy for Bush to simply assume that any search and seizure he authorizes would be "constitutional". Naturally, he is going to think that any search he authorizes is going to be "reasonable".
However, Congress used a different standard when it passed the Foreign Intelligence Surveillance Act. Passed after it was discovered that the Nixon Administration had been spying on Americans, it requires judicial review for these types of activities. It is good and right for us to require judicial review. The very purpose of that review is to help ensure that any searches meet this criterion of “reasonableness.”’
It is important to note that this is an enabling statute for the U.S. Constitution. It is a procedure that Congress enacted to give the 4th Amendment some force. Therefore, violating this law is, in effect a violation of the 4th Amendment as set down by Congress.
We can expect that even the most abusive tyrant can convince himself that his searches and seizures are “reasonable”. Certainly, such a tyrant is not going to have his agents waste their time on completely useless searches. He has to expect some return from his investment. If this is his criterion for “reasonableness”, he can easily convince himself that all of his searches and seizures are reasonable.
Yet, this is clearly not the standard of reasonableness written into the Constitution. The Constitution appeals to an objective standard – a standard that Congress can strive for but not arbitrarily dictate. It appeals to a moral standard. It appeals to a standard that says that the conclusion that these people are worth spying on must be a reasonable conclusion that follows from evidence, and that the purpose of the spying is to be found in the morally legitimate aims and goals of the state.
If even the worst tyrants can pass President Bush’s test for reasonable searches and seizures, then there is something dreadfully wrong with those standards.
“I Will Do Everything In My Power”
President Bush has defended his actions, claiming that “The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do, so long as I'm the president of the United States.”
Everything in his power.
The first problem is that Bush seems to think that he and his appointed allies get to decide what the Constitution and the laws require. The very act of bypassing judicial review is an act of circumventing outside review of his decisions. We have already seen the Bush Administration’s ability to come up with a twisted interpretation of the law to claim that torture was legal.
The second problem is that this is a very vague standard. Could this mean spying on anybody who protests the Patriot Act so that the Administration can disrupt their political aims? This could be grounded on an argument that weakening this legislation or allowing it to expire will weaken his ability to fight terrorists.
Could this mean spying on anybody who protests the Administration’s use of torture? After all, Bush could easily convince himself that torture is providing useful information in the war on terror, so anybody who is against its use is weakening America.
Could this mean spying on anybody who protests the Bush Administration’s economic policies, such as its tax cuts? I think it is quite possible for Bush to convince himself that those who would allow those tax cuts to expire would be hurting America’s economy, lowering our economic standing, thereby making us more vulnerable to terrorists.
Could this mean spying on anybody caught saying unkind things about the President? We have already heard claim that anybody who criticizes him are giving aid and comfort to the terrorists by giving them reason to question our resolve in Iraq. So, clearly, doing “everything in my power” has to include silencing critics.
Ultimately, could there be anything that Bush wants to do that could not be justified on the basis of “doing everything in my power” to fight the terrorists? Could he not establish a tyranny, and claim that it is necessary to fight the terrorists?
The Final Solution
This is the type of situation that the 4th Amendment was designed to protect us from – a situation where the government views its own people as a hostile opponent to be spied upon, manipulated, and controlled.
This is why the 4th Amendment in the Bill of Rights is important. As Bush brushes aside the 4th Amendment and the rest of the Constitution allegedly to defend us from terrorists, wants to protect us from terrorists, we may well discover that we have lost the best weapon we have ever had for defending ourselves from tyrants.