Fearmongering and our Constitutional protections

Protecting our freedoms is not a partisan political issue but that's never stopped politicians from making it one. A recent confrontation between the President and the House of Representatives has caused an anti-terrorism bill that contained some good—and some not so good—parts to fail. As a result House Democrats are being blamed by Republicans from the White House on down for jeopardizing America's safety by insisting on anti-terrorist legislation that Democrats believe does not erode our Constitutional rights. Democrats are claiming the President is just protecting big business from being sued for breaking the law.

The whole issue of partisanship seems ironic because the 2005 Montana Legislature passed a resolution (SJ 19) by a wide and bipartisan margin calling on Congress to put an end to some of these same unconstitutional provisions on domestic spying then contained in the Patriot Act. If the Montana Legislature can be bi-partisan on fighting terrorism and still protecting the Constitution, you'd think Washington, D.C. could, too.

The recent fracas concerned the FISA Amendments Act of 2007 (FISA stands for the Foreign Intelligence and Surveillance Act, originally passed in 1978) and a provision in it to extend immunity from prosecution to telecommunication providers who had "cooperated" with the Feds. This cooperation consisted of handing over millions and millions of records of the private telephone conversations of law-abiding American citizens without a court order. The President wanted it, the Democrats didn't, so by standing firm on the issue of immunity and causing the bill to fail by missing a deadline, the president got needed political cover.

The politics of it boil down to this: if the President had to veto a national security measure because it did not contain a key provision favored by his administration it would give the Democrats the ability to gain an upper hand in the "who is tougher on terrorism" propaganda war. By causing an impasse, the president gets to blame the Democrats for failing to pass an anti-terrorism bill.

The very question of telecommunication companies needing immunity is a curious one. Is the Federal government admitting that what they asked, and are still asking the telecoms to do is illegal?

Mike McConnell, the Director of National Intelligence, writing in the Washington Post, cites a study performed by the Senate Select Committee on Intelligence which says that without immunity "the private sector may be unwilling to cooperate with lawful government requests in the future…." More to the point; they may be unwilling to cooperate with un-lawful requests by the federal government. And, quite frankly, they weren't asked to cooperate, they were compelled to cooperate. Only gutsy Qwest had the backbone to refuse.

There is a perfectly good—and for what it's worth—Constitutional way for the federal government to eavesdrop on phone conversations that they have probable cause to believe are suspect; get permission from a Court of Law, in this case the FISA Court. The term "probable cause" in that last sentence is important because it is the Constitutional standard by which such things are judged. It means that there has to be an actual reason and not just a strong desire, before government is allowed to invade the personal privacy of American citizens. It's in Amendment IV of the United States Constitution, a document I, and every elected person in America has sworn to uphold.

There is a reason for the Fourth Amendment. Before the American Revolution a British officer or agent could enter anyone's home or business and seize possessions and documents without any "probable cause". The power that gave them this ability was a blanket search warrant called a "general writ of assistance", and it was the extraordinary abuse of that power, in part, that caused the Revolution and placed that protection in the Bill of Rights.

If the federal government finds it has the power to nullify our Fourth Amendment protections, what assurance do we have that they won't use that power to nullify the entire Bill of Rights—including the Second Amendment?

We are being taught to fear the threat from foreign terrorists so greatly so that we will willingly agree to place our Constitutional rights in the hands of the federal government. That is exactly the wrong place in which to place them. The Bill of Rights is the law of the land because the framers of the Constitution wanted to limit the powers of government, not to expand them.

If you have to give up your freedom to protect it, you don't have very much left to protect, do you?