Someone Who Gets It

Ordinarily I wouldn't take the time to read an op-ed piece written by someone described as "the senior judicial analyst at the Fox News Channel," but I was intrigued enough by the subject to read Andrew P. Napolitano's op-ed piece published in yesterday's Los Angeles Times. I'm glad I set aside my prejudices this time, because Mr. Napolitano's comments on the current White House attempt to negate the Fourth Amendment was well worth the read.

Mr. Napolitano provides a very useful history of the FISA legislation and how it morphed into the "Protect America Act of 2007" (how's that for ironic nomenclature --it rates right up there with "The Patriot Act"). Initially, FISA was a response to the egregious domestic spying of the Nixon Administration, spying that the former president justified some years later by stating, "When the president does it, that means that it is not illegal."

Here are some of the key points Mr. Napolitano makes:

The 4th Amendment was written in response to the Colonial experience whereby British soldiers wrote their own search warrants, thus literally authorizing themselves to enter the private property of colonists.

The amendment has been uniformly interpreted by the courts to require a warrant by a judge; and judges can only issue search warrants after government agents, under oath, have convinced the judges that it is more likely than not that the things to be seized are evidence of crimes. This standard of proof is called probable cause of crime. It is one of only two instances in which the founders wrote a rule of criminal procedure into the Constitution itself, surely so that no Congress, president or court could tamper with it. ...

The FISA statute itself significantly -- and, in my opinion, unconstitutionally -- lowered the 4th Amendment bar from probable cause of "crime"to probable cause of "status." However, in order to protect the 4th Amendment rights of the targets of spying, the statute erected a so-called wall between gathering evidence and using evidence. The government cannot constitutionally prosecute someone unless it has evidence against him that was obtained pursuant to probable cause of a crime, a standard not met by a FISA warrant.

Congress changed all that. The Patriot Act passed after 9/11 and its later version not only destroyed the wall between investigation and prosecution,they mandated that investigators who obtained evidence of criminal activity pursuant to FISA warrants share that evidence with prosecutors. They also instructed federal judges that the evidence thus shared is admissible under the Constitution against a defendant in a criminal case. Congress forgot that it cannot tell federal judges what evidence is admissible because judges, not politicians, decide what a jury hears.

Congress "forgot" a lot of things the past 6+ years and nowhere has that been more damaging than in the area of constitutionally guaranteed rights. Mr. Napolitano reminds us of the danger to everyone when that happens:

Those who believe the Constitution means what it says should tremble at every effort to weaken any of its protections. The Constitution protects all "persons" and all "people" implicated by government behavior. So the government should be required, as it was until FISA, to obtain a 4th Amendment warrant to conduct surveillance of anyone, American or not, in the U.S. or not.

This is the kind of "strict constructionism" I can appreciate. Nicely done Mr. Napolitano.