Domestic Surveillance vs. Rights To Privacy

by Techniguy 12-26-2005

I find it amazing that anyone would be shocked and surprised that our electronic messaging such as phone and email conversations may be subject to monitoring these days. All this does not come as news to me, it has been rumored on the internet for years as far back as October of 2001. Able Danger supercomputers have been doing this since the 90s under the Clinton Administration, or were until some traitor exposed them. The press media seems to think that 1st amendment rights to freedom of the press also gives them the right to publish classified national security secrets, I don't agree.

Since when does individual "right to privacy" trump national security as the Left wants you to believe in their attempts to attack our president and accuse him of committing crimes? They point to the 4th Amendment of the Constitution which states:

"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".

Ok, that's fair enough, but where in this amendment does it say surveillance of electronic communications without a warrant is prohibited? It doesn't. Of course there were no electronic communications when this amendment was written so some just assume that it should be covered by the amendment and read that into it. Why should anyone be reading anything into the Constitution that isn't there? The answer to that is simple... they shouldn't be.

The 4th amendment is not a guarantee of a "right to privacy", it's a guarantee against unreasonable search and seizures of homes and personal property without a warrant. You pretty much give up that right when you put your personal information out on the public internet or over a public telecommunications media where it can be intercepted not only by government, but by anyone with the technical ability to do so. No one should assume that the privacy of such communications will never be compromised. There is quite frankly, no "right to privacy" on communications, just as there is no "wall of separation between church and state" guaranteed by the Constitution.

The Left is claiming that our president is violating our constitutional rights and in doing so, is violating constitutional law. Some are even claiming he should be impeached for it, but then the Left is always looking for an excuse to claim that. The truth is that the president's foremost and primary sworn constitutional responsibility is to defend our country from foreign threats and to protect our citizens through any legal means necessary. There are laws on the books that permit the president to conduct electronic surveillance in times of war without a warrant in the interest of national security, and congress has given him that power in their war resolution on terrorism. The president is acting under authority of certain laws outside of, but authorized by, the FISA act under certain circumstances that now exist, the Left is sighting certain other laws within FISA that would prohibit it. The debate now is simply over which law trumps which law. I think most Americans would be on the side of protecting and defending America first.

The Left accused the president of not doing enough to 'connect the dots' before the 911 attacks but somehow avoided mentioning the previous administration in these charges. Now, they are accusing him of doing too much in order to connect those dots and prevent another attack. If we were attacked again, the Left would then do another 180 and accuse him of not detecting it in time to prevent it, and would suddenly have another memory failure regarding their attempts to restrict the current wiretaps. The Left will never be satisfied with anything this president does because their only agenda is to oppose and discredit him. The Congressional majority needs to realize that the Left has made themselves irrelevant in the war on terror and stop trying to compromise with them. It does no good and only weakens the country and our national defenses.

Former Senate Majority Leader Tom Daschle has recently come out of the woodwork to support the failing Democrats assertions. In an article printed Friday on the op-ed page of The Washington Post, Daschle wrote:

The use of warrantless wiretaps on American citizens was never discussed when Congress authorized the White House to use force against al-Qaida after the Sept. 11 attacks.” This last-minute change would have given the president broad authority to exercise expansive powers not just overseas ... but right here in the United States, potentially against American citizens. The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress _ but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language.”

Daschle has a right to publish his opinions in the Washington post, even if they’re wrong. The language of the rejected wording was not to conduct wiretaps on American citizens, but rather to conduct wiretaps on persons within our country, the 911 hijackers, for example. The president was also not asking Daschle and his cohorts for permission to conduct wiretaps (he knew he already had the authority), he was asking them to come onboard with the program, just as he asked the UN to come onboard in the invasion of Iraq. In both cases, approval was not necessary for the president to do what was necessary to protect our country. Democrats who believe protecting the rights of terrorists is more important than protecting our country from attack were simply overruled by presidential authority. Thank God for that, and for the framers of the Constitution for foreseeing the necessity of this power.

Rights to privacy is assured by telecommunications companies and internet service providers, not by the federal government. Private organizations such as the Online Privacy Alliance (OPA) establish privacy policy with regulations such as:

“Organizations creating, maintaining, using or disseminating individually identifiable information should take appropriate measures to assure its reliability and should take reasonable precautions to protect it from loss, misuse or alteration. They should take reasonable steps to assure that third parties to which they transfer such information are aware of these security practices, and that the third parties also take reasonable precautions to protect any transferred information.”

Media tells us that surveillance under FISA law allows for warrants to be issued up to 3 days after the surveillance. But what they seldom tell us is that FISA also requires agents to get approval for that warrant from a FISA judge by phone before the surveillance can be initiated. There is no "hotline" to the FISA judges and locating them for approval can take many hours. Obviously, if an agent has a hot call on the line, there is no time to contact the judge before intercepting the call.

Then there is also the problem of presenting "probable cause" for the warrant. The 'probable cause' requirement comes from criminal investigations with physical evidence to support the surveillance. In the case of investigating suspected terrorism, no such evidence is likely to exist until after the surveillance or after an attack if the surveillance is not successful. Intelligence agents cannot be restricted and limited only to terrorist links they can prove to a judge before initiating wiretaps, they need to act on anything they have reason to believe looks suspicious, even if it involves only a hunch, which would not qualify as "probable cause" for a warrant. But this is the only way they will be able to gather this kind of information to connect the dots before it's too late. We are at war against a very sneaky enemy who may be hiding within our country. This war requires some extraordinary steps to derail surprise attacks on our cities that could kill millions of Americans.

Consider also, that the critics of the President are not condemning him for authorizing these wiretaps so much now, as they are criticizing him for doing it without a warrant. In this respect, they have changed their tune as the public becomes more aware of the President's authority to order this surveillance. They are still making the misleading claim that "the President is spying on American citizens", but now they're adding that he's doing it without a warrant and somehow that is a "violation of citizen rights to privacy". How would getting a warrant make wiretaps any less a violation of privacy? So now the argument has been reduced to a procedural issue and suddenly the Left is overly concerned with procedures being more important than our national security? Where are their priorities now? I should also point out that it is not the President who is doing the spying (as it was with Nixon) but rather the National Security Agency who’s job it is to spy on our enemies.

As I've already mentioned, any constitutional "right to privacy" is as vague or nonexistent as the mythical "wall of separation between church and state". In fact, you're going to have a hard time finding any right to privacy anywhere in the law. To find it, you're going to have to look into individual state laws and agencies such as State Public Utility Commission regulations although you may find something in individual state constitutions as well. It is generally the telecommunications companies and internet providers who assure your privacy, not the federal government. There may be something in the FCC rules and regulations on this but you'd have to be a lawyer to find it. I tried, but only found myself tangled up in numerous court cases that made my head spin. I have been unable to find any one specific law that guarantees you the right to privacy in phone or email communications.

In the final analysis, which is more important to innocent American citizens; living with the possibility of having a phone conversation accidentally monitored and an email possibly checked for terrorist connections, or preventing another 911 type attack on America or worse? Is any individual's vague right to privacy more important than our national security? If we don't give top priority to our national security, you won't have to worry much longer about your right to privacy because you won't have any while living in a public shelter after your city has been destroyed, assuming you survive.

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