Tuesday, February 07, 2006
THE SUBVERSIVES IN OUR MIDST
I have read the Constitution in its entirety and, as far as I can tell, it was not written for the sole purpose of being read and understood by lawyers. The oft-expressed notion that we are a “nation under law” would mean that we are nation at the whim of lawyers and the mumbo-jumbo of legalese. But, as I understand it, we are a nation “of the people, by the people, and for the people” who cause the laws to be made, to be changed, and to be discarded. So it seems to me that what is written is clear enough for the rest of us to manage within the scope of our life experiences. In recent days the matter of the nomination of Judge Alito to fill a vacancy on the Supreme Court has focused considerable attention on the Fourth Amendment to the United States Constitution.
This Fourth Amendment is one of the Ten Amendments to the Constitution that were necessarily included in the Constitution before the delegates attending the Constitutional Convention would agree to accept it. Why they have ever been considered amendments in the sense of being an appendage to the Constitution is a mystery to me, since there would not have been, as far as I understand the history, the Constitution as we know it if they had not been included in its adoption.
It also important to remember that those entitled to adopting and voting and ratifying the Constitution were exclusively propertied (mostly in slaves), moneyed, literate, white, men--- a considerable minority of the population of the United States especially in consideration of the extent of literacy at the time. So if they were ratifying anything at all, it was certainly being ratified for their own benefit.
The historical process, including a civil war, other insurrections and civil disobedience, has transformed that elementary doctrine of substantial self- interest to include a considerable number of the rest of us, if not all of us. An operating proverb for the historical process that might be considered in this regard would be, “What’s good for the goose, is good for the gander” or more broadly, “Do unto others as you would do for yourself”.
So the Fourth Amendment reads, "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.”
As far as I understand the current drift of events, there are overwhelming number of our elected Congress that consider that a SECRET Warrant, supported by a SECRET oath or affirmation for a SECRET search of a SECRET place with the SECRET seizing of SECRET things where a SECRET person is SECRETLY seized and SECRETLY spirited to a SECRET “rendition” site meets the requirements of the Fourth Amendment.
That is what our elected officials did when they passed FISA—the Foreign Intelligence Surveillance Act. The records and files of the cases under FISA are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under FISA warrants, except to a limited degree set by district judges' rulings on motions. There is no provision for the return of each executed warrant to the Foreign Intelligence Surveillance Court much less with an inventory of items taken, nor for certification that the surveillance was conducted according to the warrant and its "minimization" requirements, nor for the revelation of the identity of the person or persons spirited away to some undisclosed “rendition” site.
The rationale offered by the symbol-using lawyering pundits is that the prohibition of “unreasonable searches and seizures” in the Fourth Amendment means that its corollary is that “reasonable searches and seizures” are permissible even though the specific requirements for a search and seizure are delineated in detail in the Amendment---requiring a warrant issued “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The fact is that the FISA Law is the equivalent of an abrogation of the Fourth Amendment. To make the search and seizure of persons, houses, papers, and effects SECRET is the same as granting the government the carte blanche basis for the unreasonable searches and seizures that was the method of the English operation and administration of the Colonial Laws prior to the War of Independence. It was this War that finally culminated in the Constitution of the United States and its Bill of Rights that did away with the onerous, repressive British impositions.
The FISA Law in combination with the Patriot Act resurrects and goes beyond the subversive, discredited and onerous Alien and Sedition Act (which, by the way, caused the arrest of Representative Matthew Lyons of Vermont who was re-elected in jail and rode triumphantly down to Washington to cast the vote in the House of Representatives that made Jefferson President), the McCarren Walter Act of 1924, the Mc Carran Act and the Smith Act of prior generations. These Acts have since been discredited for their violations of and subrogation of the inalienable rights of United States citizens ensconced in the Bill Of Rights established by the first ten amendments to the Constitution.
In the meantime, this new FISA Law and Patriot Act will serve to subvert our liberty and our Bill of Rights where those others succeeded for a while until they failed after a trying period in which their subversive effects on our society and on thousands of our citizens became destructively apparent. These newly resurrected subversive laws need to meet the same ignoble fate as that of their predecessors.
- posted by william @ 8:56 PM