The Fourth Amendment Is Worth Protecting

Intelligence Chiefs Testify At House Hearing On National Security Threats

The New York Times recently published an extensive article that attempted to shine a positive light on an appallingly scandalous set of facts.

However, even with its extravagant spin efforts the newspaper could not exclude the information that the FBI employed secret counterintelligence tools to spy on the Trump campaign, including the use of a paid confidential informant who sought to extract damaging information from several people associated with the campaign.

It is a grave situation when, through the use of counterintelligence powers, a presidential administration targets officials associated with the campaign of the opposition party.

The same Obama executive branch engaged in a series of extraordinary actions to step-up government intrusions, including the following:

-The NSA was allowed to obtain private data on American citizens;

-Members of the press were spied upon;

-Hundreds of individuals were “unmasked” by the ambassador to the UN and the national security adviser;

-An unreliable dossier was used to obtain FISA warrants, and the parties submitting the applications failed to disclose key facts to the FISA court.

After all of these expansive actions were taken, the FBI counterintelligence probe, code-named “Crossfire Hurricane,” placed then-presidential candidate Donald Trump under surveillance.

It is the height of irony that in early 2017 President Trump was derided for his tweet that claimed he was being surveilled.

As these and other troubling facts emerged, the mainstream media did their dutifully best to rev up the spin engines.

The New York Times characterized the actions taken by the FBI during the above-referenced period as focused on Russia rather than spying, while the Washington Post attempted to twist the narrative into asserting that the FBI was “protecting” President Trump rather than targeting him.

In an appearance on CNN about the spying on the Trump campaign that had taken place via the hands of the government, former Director of National Intelligence James Clapper channeled Martha Stewart as he indicated how the spying was a “good thing.”

Seemingly lost in the media coverage as well as in the continuing discussion is the damage being done to the fundamental principles of individual privacy rights, which are set forth in the Fourth Amendment of the Constitution.

The Fourth Amendment provides that “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.”

The Framers sought to protect citizens from unreasonable intrusions by the government. It was indeed a breakthrough notion by the Founding Fathers that the privacy of our persons, houses, papers, and effects are off limits to interference by government, unless and until a judge has signed off on a warrant that authorizes a search, seizure, or surveillance.

Judges may only issue warrants after finding probable cause to believe that the invasion of privacy or surveillance will produce evidence of criminal behavior. In addition, the Fourth Amendment requires a warrant to specifically describe what will be seized and where a search will take place.

The norm in the Colonies during the pre-Fourth Amendment era was that warrants were issued in secret by British courts, without the inclusion of probable cause and/or specificity. In other words, the government could conduct a search without any legitimate judicial scrutiny.

It is now known that secret FISA warrants for surveillance on the Trump campaign were issued, based on an unreliable dossier purchased by the Hillary Clinton campaign, and that the FBI failed to disclose key information to the FISA court.

The use of so-called national security letters to gather documents on Trump campaign figures, however, constitutes a whole new level of government action that flies in the face of Fourth Amendment precepts.

According to the New York Times, the FBI “obtained phone records and other documents using national security letters – a secret type of subpoena…”

Several federal statutes allow intelligence officials to request certain business record information using national security letters, which are documents that compel the production of private materials.

National security letters are a type of administrative subpoena, which must be used solely in connection with national security investigations. The documents require individuals or organizations to provide materials that typically involve telephone, email, and/or financial records.

The national security letters include a gag order mandating that those responsible for complying cannot disclose the existence of the document or its content. When used in the manner in which the New York Times describes, national security letters are de facto warrants.

Simply said, phone records and other documents were compelled by a government agency from individuals connected with an opposing political party’s campaign, without a court, probable cause, or any judicial oversight whatsoever.

History demonstrates the danger of granting government agencies the ability to subvert constitutional norms.

Even in cases involving national security, the full requirements of the Fourth Amendment can and should be fulfilled in an expedited fashion, with no intrusions into citizens’ privacy without probable cause that is determined by a court of law, upheld by affirmation or sworn oath, which sets forth precisely what will be confiscated and the location that will be searched.

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