April 18, 2008 - The Fourth Amendment to the Constitution prevents the government from conducting searches, or seizing property without a court ordered search warrant. It is the amendment that led to Miranda warnings; forcing the police to inform suspects of their legal rights at the time they are arrested. And it is the Amendment that prevents the government from tapping your phone or entering your house simply because they THINK you might have committed a crime. But according to a Justice Department memo, the Fourth Amendment can't be enforced when national security is at stake.

The position of the DOJ on the Fourth Amendment was probably never supposed to made public. It only became public because it was referred to in an equally disturbing memo on torture that was recently declassified.

The footnote refers to the government's "War on Terror" and specifically states the DOJ position that "the Fourth Amendment had no application to domestic military operations." This means that if the Administration states that searching a particular person's car, house, office or other private property is necessary for national security purposes, then the Constitution doesn't apply.

That is a very frightening position. This is especially true when one considers that the Bush Administration has actively engaged in domestic spying since before 9/11, and significantly stepped up its efforts since then. The Fourth Amendment specifically states that it is "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But many of the administrations activities have excluded court supervision.

The memo was written at about the same time that President Bush ordered the NSA to begin domestic wiretapping operations that have resulted in the government's ability to monitor virtually all phone calls made in the United States. It should be pointed out that out of the country's major telephone companies, only Qwest refused to participate in the program.

The administration has been pushing Congress to pass new legislation that would provide retroactive immunity to the telecommunications companies that have participated in domestic surveillance. Such legislation would put a halt to several major lawsuits filed against the companies involved. It would also halt any possibility that more information on domestic spying would be made available for public scrutiny. So far, the House of Representatives has refused the administration's requests.

The founders of the United States were very reluctant to give the President unrestrained power. They realized that just as absolute power had led to the rise of political tyrants in Europe, it would eventually lead to their rise here in the United States too. Therefore, they divided power among the various branches of government and specifically limited each branch. The idea was to give the states and local governments, which are most answerable to the people, the bulk of the power. The Federal Government was simply there to provide for services that couldn't be provided at the state level; such as national defense.

Unfortunately, over the past 70 years, the courts have sided much too often with federal legislators at the expense of the states. This is the only reason that the Bush Administration's domestic spying program was able to get off the ground in the first place, and it is some of the best evidence available to show that most of the elected representatives we have in Washington do not feel that they have any accountability to the people of the United States who employ them.

by Jim Malmberg

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