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At the Ron Paul Institute for Peace and Prosperity, Judge Andrew Napolitano details the history of the Fourth Amendment and makes a case against the generalized warrants being utilized by America’s domestic spying agencies via the FISA court. He writes:
After President Richard Nixon resigned the presidency, Congress investigated his abuse of the FBI and CIA as domestic spying agencies. Some of the spying was on political dissenters and some on political opponents. None of it was lawful.
What is lawful domestic spying?
The modern Supreme Court has made it clear that domestic spying is a “search” and the acquisition of data from a search is a “seizure” within the meaning of the Fourth Amendment. That amendment requires a warrant issued by a judge based on probable cause of crime presented under oath to the judge for a search or seizure to be lawful. The amendment also requires that all search warrants specifically describe the place to be searched and the person or thing to be seized.
The language in the Fourth Amendment is the most precise in the Constitution because of the colonial experiences with British general warrants. A general warrant was issued to British agents by a secret court in London and did not require probable cause, only “governmental needs.” That, of course, was no standard whatsoever, as whatever the government wants it will claim that it needs.
General warrants did not specify what was to be searched or seized. Rather, they authorized the bearers to search wherever they wished and to seize whatever they found — stated differently, to engage in fishing expeditions.
When Congress learned of Nixon’s excesses, it enacted FISA, which required that all domestic spying be authorized by the new and secret FISA Court. Congress then lowered the probable cause of crime standard for the FISA Court to probable cause of being a foreign agent, and it permitted the FISA Court to issue general warrants.
How can Congress, which is itself a creature of the Constitution, change standards established by the Constitution? It cannot legally or constitutionally do so. But it did so nevertheless.
Read more here.
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