Subverting the Constitution
Government agencies can bypass the Constitution's guarantee against unwarranted search and seizure.
Surprise!  It's happening NOW.








Subverting the Constitution

Under the 1947 UKUSA Agreement, each of the signatory nations granted each of the other nations permission to monitor themselves.  We monitor them and they monitor us.  Actually, we could not stop them from monitoring us if we wanted to.  But that is not the end of it.

Each of the five nations involved in ECHELON have either laws or a Constitutional Amendment prohibiting unreasonable searches and seizures.  In the USA, it is the 4th Amendment that guarantees us protection "against unreasonable searches and seizures" and further requires that "no warrants shall issue, but upon probable cause."  The Supreme Court has ruled repeatedly that your electronic communications, whether voice, fax or email are protected under the 4th Amendment.  What this means is that if any government agency wants to monitor your electronic communications, they must first show "probable cause" to a judge that you are breaking a specific law.

To get around our 4th Amendment protections, US law enforcement officials have taken to using surrogates.  The FDIC recently tried to enact a rule requiring banks to profile all of their customers and report those who deviate from an accepted profile (see "Bank Spying").  If government officers went into the bank and did that themselves, it would most certainly be ruled illegal search and seizure.  But, by making the bank their surrogate, they thought that they could skirt the 4th Amendment.

The same type of thing is occurring with ECHELON, but at an enormously greater level.  It is not illegal for Communications Intelligence (COMINT) authorities in Great Britain, for example, to indiscriminately and randomly monitor US civilian communications, just as it is not illegal for the NSA to indiscriminately and randomly monitor British civilian communications.  So, under UKUSA, COMINT agents in each of the UKUSA partner nations monitor each other's domestic communications and pass suspect communications on to the authorities in the other country.  Each nation becomes a surrogate spy for the other.  Although there are technically no laws broken in either country, each country's government has subverted its own laws to achieve the goal of monitoring its own citizens.

US authorities can take your private conversation, recorded legally by a British COMINT agency, to the US Foreign Intelligence Surveillance Court (FISC), which considers surveillance and physical search orders from the Department of Justice and US intelligence agencies, and truthfully tell the court that the evidence was stumbled upon by a friendly foreign government in the process of another investigation.  In any other court, you would expect that the judge would want to know more about how the evidence was obtained.  But the FISC judge, who is effectively a part of the US intelligence community, does not want to know more.  Since the FISC was created over 20 years ago, as a part of the Foreign Intelligence Surveillance Act (FISA) in 1978, the court has heard well over 10,000 applications for covert surveillance and physical searches. To date, not a single application has been denied.  I challenge anyone to show me an example of any other court in the USA that has such a record for complacency in the issuing of warrants.  It is an absolute certainty that the US agency involved will get a court order to place a legal tap on all of your electronic communications.

Our government, through the NSA and ECHELON, with the cooperation of the FISC has quite effectively subverted the 4th Amendment.

Copyright 2002 John Gaver - All rights reserved.