The US Constitution and the principle that no one is above the law suffered a numbing setback, Tuesday, when every Republican Senator, Independent Joe Lieberman and 18 faux Democrats voted to gut the Constitution's Fourth Amendment, one of the most important bulwarks again tyrannical government since 1789. The Senate voted 68 - 29 to ratify the President's massive illegal spying program and provide immunity for the telecoms who invaded the privacy of millions of innocent Americans.
The Fourth Amendment has been handed down to us unchanged for over two centuries:
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.
Almost none of that is left if today's bill stands. In an age in which "bipartisan" has come to mean weak Democrats joining unanimous Republicans to vote against the Constitution, the Fourth Amendment would be eviscerated by a bill that provides a virtual blank check for the executive to invade the privacy of Americans:
-- The President can direct US spy agencies to intercept every e-mail, telephone or internet communication of every American and anyone legally in the US with only the most minimal safeguards. Although the bill was supposed to deal with exclusively "foreign" communications, the techniques it sanctions will in fact sweep up domestic and foreign combined.
-- Acting without individual or particularized warrants from any court, spy agencies can sweep up millions of communications without differentiating between those warranting surveillance and those not. Procedures for separating out totally innocent persons or communications that have nothing to do with foreign intelligence or any security threat to the US are minimal to non-existent. Procedures allowing a secret court to review such procedures have been weakened, along with measures to correct violations of even these limited procedures.
-- Persons spied upon have no ability to determine what information the government has collected, or to affect what the government does with the information. Americans will never know which persons or government agencies were shown private information about them, and if restrictions are placed on their activities or travel because of this secret information, it will be impossible for victims to determine why or to challenge the information.
-- Telecommunication companies who participated in government's illegal spying activities, and those who ordered this, would be forever immune from any consequences for their actions and cannot be required to disclose what they did.
-- As bad as the Senate Bill is, the Senate rejected an effort to make the bill the exclusive means by which surveillance can be authorized. So the President arguably can conduct further spying on Americans even without the minimal protections left in the Bill.
There were courageous efforts by Senators Dodd and Feingold and about 29 other genuine Democrats to stop or mitigate the damage, but those 31 or so votes define the limits of the Constitutional Wing of the Democratic Party. As important as the Presidential election is, increasing these numbers has to be an ongoing priority. We need more people like this (h/t Matt Stoller).
Not one of the 49 Senate Republicans stood up for the Fourth Amendment. And there are nearly 20 weak Democrats who simply cannot be relied upon to stand against the Republicans when fundamental rights are at stake.
These Democratic Senators will forever be remembered as having failed their oaths to preserve and protect the Constitution on one or more key votes. Bayh, Inouye, Johnson, Landrieu, McCaskill, Ben Nelson, Bill Nelson, Stabenow, Feinstein, Kohl, Pryor, Rockefeller, Salazar, Carper, Mikulski, Conrad, Webb, and Lincoln. Whitehouse voted to mitigate the worst provisions, but ultimately voted for the Bill; Feinstein voted against stripping immunity but then voted for the bill.
Obama voted for the Constitution in early votes [update: and against cloture]; he was not present for the final vote; we will need more "yes we can." Clinton chose to be somewhere else. I assume we will not again hear campaign arguments about voting "present."
As Jane said yesterday, it's up to the House to stop this disgraceful bill. Sign the petition to tell them not to cave like the Senate did.
More from C&L, emptywheel, Glenn Greenwald, ACLU, and two Constitutional heroes, Feingold and Dodd.
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