4th Amendment, Ha Ha Ha

Ann Schneider Apr 4, 2006

The ironies of the wiretapping scandal are almost too many to count. First, even Colin Powell said Bush should have
requested a Foreign Intelligence Surveillance Act (FISA) court warrant, since the law gives him three days to seek retroactive approval. Less well known is the fact that FISA gives the President 15 days following the declaration of war
to seek either a warrant from the court or a change in law from Congress.

The fact that the spying disclosures came as Congress was debating extension of the PATRIOT Act begged the question: How could the administration insist it needed legal authorization from the PATRIOT Act to fight terrorism when it had authority under the FISA it wasn’t bothering to invoke? And never mind the irony of the New York Times’ self-censorship in waiting a year at the behest of the administration to reveal the surveillance to the public.

The greatest irony is that Bush simply admitted that he violated the FISA statute, becoming the first sitting President to admit an impeachable offense.

In so doing, Bush farcically repeated the history of the Nixon administration. In his autobiography, the late Arthur Kinoy tells the story of Detroit antiwar activists being spied upon illegally. When it came to light, the Rehnquist Justice Department asserted that it had the right to conduct illegal activities in defense of national security.

The Supreme Court thought otherwise, however, unanimously rejecting this proposition in no uncertain terms. Apparently Bush’s sycophant legal advisors forgot to tell him about this binding precedent.

“We conclude that the Government’s concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of lawabiding citizens cannot occur.”

As Dick Cheney puts it in a recent interview with the Wall Street Journal, “In the aftermath of Vietnam and Watergate, there was a concerted effort to place limits and restrictions on presidential authority.” Former Watergate co-conspirator John Dean tells of an interview Cheney gave to NPR, in which the Veep actually cited his own dissent published in the Iran-Contra report, which was the result of an 11-month congressional investigation into CIA coke- and gun-running in Nicaragua. Cheney, who was vice-chair of the investigating committee, authored a minority
report that said that the Reagan administration’s failures to abide by the law were simply “mistakes in judgment and nothing more.” Sounds like “Trust us. We’re protecting you.”

Handschu Update
The NYPD is sparing no effort to gut the warrant requirements of the Handschu consent decree, which prohibited police from spying on political groups. One year after agreeing to respect demonstrators’ First and Fourth Amendment rights, the NYPD unilaterally issued Rule 47, saying it can photograph and videotape public demonstrations and retain the footage indefinitely “for training purposes.” The cops say they need this surveillance only for that limited purpose, but in their legal briefs, they argue that the Constitution does not prohibit the police collecting information at demonstrations.

National Lawyers Guild attorneys say it looks like the NYPD wants no restrictions on its activities, and each time the City comes back with arguments like this, the more it proves our contentions. Come to court on Tuesday March
28 at 10:00 a.m., 500 Pearl St, courtroom 17-C to see how this battle develops.

The People’s Lawyer is a project of the New York
chapter of the National Lawyers Guild.

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