While the political commentators in the nation’s capital are wrapped up in the debate over what to do about ISIS, and as one third of the Senate and nearly all members of the House campaign for re-election, the president’s spies continue to capture massive amounts of personal information about hundreds of millions of us and lie about it.
The president continues to dispatch his National Security Agency spies as if he were a law unto himself, and Congress — which is also being spied upon — has done nothing to protect the right to privacy that the Fourth Amendment was written to ensure. Congress has taken an oath to uphold the Constitution; yet it has failed miserably to do so. But the spying is now so entrenched in government that a sinister and largely unnoticed problem lurks beneath the surface.
NSA documents released by Edward Snowden show that the feds seriously deceived Congress and the courts in an effort to spy upon all of us and to use the gathered materials in criminal prosecutions, even though they told federal judges they would not. Among the more nefarious procedures the feds have engaged in is something called “parallel reconstruction.” This procedure seeks to hide the true and original source of information about a criminal defendant when it was obtained unlawfully.
For example, if the NSA, while unconstitutionally listening to the conversations of Americans hoping to hear about plots to harm other Americans (it has revealed no such plots from among the trillions of private conversations it has monitored since 2005), comes across evidence of a bank robbery, the NSA will pass that evidence on to the Department of Justice. The NSA routinely does this notwithstanding representations to the FISA court that authorizes its spying that it is not in the business of gathering evidence in criminal cases.
It makes those claims because the George W. Bush and Barack Obama DOJs have argued to the public and to the FISA court that the Fourth Amendment, which prohibits all searches and seizures without a warrant, somehow applies only to criminal investigations and not to domestic spying. No Supreme Court decision has ever stood for that proposition, and the plain language of the Fourth Amendment makes no distinction between intelligence gathering and evidence gathering.
Rather, the language of the amendment is so broad and sweeping (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated” except by a search warrant issued by a judge upon probable cause.) that for 230 years it has been held to restrain and regulate all government efforts to gather private information — no matter their purposes.
Nevertheless, the NSA’s agents and lawyers felt it necessary to concoct this groundless, disingenuous, and fictional legal distinction in order to persuade the FISA court that it is legally acceptable to permit untethered spying so long as the fruits of that spying are not used in criminal prosecutions. Curiously and naively, judges of the FISA court bought that argument.
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This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom