...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 an Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched.
So says the 4th Amendment to the Constitution of the United States of America, ratified in 1791.
For about 210 years of our nation's history, the 4th Amendment meant pretty much what it said: the people are protected from unreasonable government prying into their personal effects without a court-ordered warrant authorizing a search.
For the last five or six years, however, the 4th Amendment has been undercut, trampled on, or simply ignored - and today it seems as if these once hallowed words have little to no meaning.
Two stories this week bring the current government's abandonment of the 4th amendment to the fore.
First, the dazzling downfall of former New York Governor Eliot Spitzer. Although I don't think it need be said, let me say it anyway: Spitzer's conduct was unjustifiable, it was unquestionably wrong, and it was inexcusable. I do NOT defend him. He broke the public trust and clearly broke the law. His resignation was inevitable and justified.
I am not, however, writing about Spitzer's conduct. Instead, a part of the story that has been lost in the salaciousness is how our government "stumbled" upon the scandal.
According to two sources ... Spitzer hit the federal radar when a bank reported to the Internal Revenue Service that a significant amount of money had been suspiciously transferred from one account to another.
The IRS, upon investigating the matter late last year, found that the accounts were connected to Spitzer, the sources said. The IRS contacted the FBI, which joined the case to investigate the possibility of government corruption.
New "counter-terrorism" banking laws require banks to report certain account activity to the government - specifically the IRS:
Federal law requires a banking institution to file a Suspicious Activity Report when the institution suspects a transaction is linked to a federal crime.
More specifically, the banks are required to report to the IRS any transactions totaling $5,000 or more if the transactions "involve potential money laundering or a violation of the Bank Secrecy Act." The act requires businesses to keep documents that are useful for identifying and investigating money laundering.
Ummm...does anyone else but me recognize something incredibly important missing in those sentences? How about a warrant? These laws REQUIRE financial institutions to report activity that no one has probable cause to get a search warrant to look at. Yet, no one seems to be remotely concerned.
Sources said Spitzer allegedly was moving money between several of his own accounts, and investigators think he may have been shuffling money to hide his behavior from his wife.
US law requires banks to report an individual moving money between several of his own accounts, without a warrant, and somehow that is supposed to not be a violation of the 4th amendment. This is appalling. What about this: a private citizen moves money around between several of her/his own accounts because she/he was hiding from their spouse the fact that they were surreptitiously participating in - - - a fantasy baseball league that they didn't want to tell their spouse about.* The bank would be forced to give that information to the government. No probable cause, no laws broken, no description of place person or thing to be searched - nothing. How can anyone argue that that is reasonable, or that our government is respecting our right to be secure in our person, houses, papers, and effects?**
Secondly, President Bush continues to expressly mislead the American people about the new FISA (Foreign Intelligence Surveillance Act) legislation:
[President] Bush appeared on the White House's South Lawn yesterday to demand House passage of the Senate legislation, warning lawmakers that "voting for this bill would make our country less safe. . . . The American people understand the stakes in this struggle. They want their children to be safe from terror."
Balderdash. Ridiculousness. Rubbish.
The conflict about passage of this bill centers primarily on granting retroactive immunity to telecommunications companies that turned over private user information to the government without warrant. This is not the primary focus of my post, but it simply underlines the point I am trying to make. Some of these companies looked at the government request and said - "that's nice, if you can get us a warrant, we'll get you the information." Others simply turned over the data without a warrant. Those companies now face lawsuits seeking to enjoin further activity without warrant. It seems only common sense to allow these companies to make their arguments and let a Court decide if they - or the government - broke the law in turning over such information without a warrant.
Just as important, if not more so, is the fact that in fighting on this new FISA legislation, what the Bush Administration is attempting to do is be able to look at my (and your) private information without our authorization, and without a warrant. Could there be a more clear violation of our 4th amendment rights? It is patently unreasonable to garner the private data of hundreds of thousands of law-abiding citizens without probable cause. In addition, the FISA courts are - as they absolutely should be - essentially rubber-stamp courts. If the government as any information that remotely indicates probable cause, the FISA courts will authorize warrant. That is the way it should be. I am not arguing that the FISA judges should not grant warrants...my argument is that our government should not be allowed to randomly search our private effects without probable cause.
I am outraged that this government is so cavalierly throwing the basic rights of the people out the window - and all the while arguing that we are in mortal danger if we don't allow it. The Bush government says "If we can't monitor your bank records, the terrorists will get you...if we can't monitor your communications, the terrorists will attack."
Well, I for one reject that unconstitutional fear-mongering, and more and more law-abiding American citizens have to start recognizing when our rights are being stripped away.
If our Constitution and the 4th amendment mean anything anymore, then these types of unreasonable government searches without probable cause have to be eliminated.
* - due credit for this example goes to the movie "Knocked Up." I didn't particularly care for this movie as a whole (although it seems to be quite popular), but the side story about the marriage of the sister-in-law of the main character was really, really good. To me, the unquestionably funniest (and frankly, truest) part of the movie was when the sister-in-law became convinced that her husband was cheating. She follows him out one night when he said he would be working. Instead, she follows him to another person's home. She bursts into the house searching for him and whomever he was cheating with and what does she find --- he's at a fantasy baseball draft!!! Essentially, he plays fantasy baseball but he knew that his wife would think that so juvenile and would be unhappy with him spending time away from her and the kids for a fantasy draft, so instead he told her he was working. Classic.
** - I recognize that a statutory exception might be possible for public officials in order to fend off corruption/bribes/etc. Such a statutory exception would indeed be reasonable as a limited and specifically identified target of the searches with some probable cause about the use of funds by a public official. As far as I am aware, no such statutory exception exists.