It made no difference whether their letters, papers and effects came from France, England or

[Uncle Joe]

anywhere else, the Fourth Amendment made no distinction as to whether their communications were domestic or foreign.

http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

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.

That's essentially what the Internet and phone calls are, letters, papers and effects.

The excuse; that because sometimes an American Citizen loses their right to privacy because their communications went through a foreign channel and thus can be monitored, swept up, recorded and kept for posterity without probable cause violates the Constitution.

[grasswire]

1. interesting nt

[questionseverything]

2. it is clearly illegal

http://www.theguardian.com/commentisfree/2014/may/17/government-lies-nsa-justice-department-supreme-court

Here's what the government said in a recent legal brief:

The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.

//////////////////////////////////////////

that is the US govt's legal brief, not some bs from china, iran or the old nazi germany but from the US Department of Justice...i am thoroughly disgusted

[Uncle Joe]

6. That's an excellent analysis, and well worth reading, questioneverything, but the Roberts led S.C.

should have known that whether it was just domestic or domestic to foreign communications was irrelevant in regards to this being a clear 4th Amendment violation.

There is no ambiguity to the 4th Amendment, it's pretty cut and dry.

http://www.theguardian.com/commentisfree/2014/may/17/government-lies-nsa-justice-department-supreme-court

Here's what happened: just before Edward Snowden became a household name, the ACLU argued before the supreme court that the Fisa Amendments Act – one of the two main laws used by the NSA to conduct mass surveillance – was unconstitutional.

In a sharply divided opinion, the supreme court ruled, 5-4, that the case should be dismissed because the plaintiffs didn't have "standing" – in other words, that the ACLU couldn't prove with near-certainty that their clients, which included journalists and human rights advocates, were targets of surveillance, so they couldn't challenge the law. As the New York Times noted this week, the court relied on two claims by the Justice Department to support their ruling: 1) that the NSA would only get the content of Americans' communications without a warrant when they are targeting a foreigner abroad for surveillance, and 2) that the Justice Department would notify criminal defendants who have been spied on under the Fisa Amendments Act, so there exists some way to challenge the law in court.

It turns out that neither of those statements were true – but it took Snowden's historic whistleblowing to prove it.

One of the most explosive Snowden revelations exposed a then-secret technique known as "about" surveillance. As the New York Times first reported, the NSA "is searching the contents of vast amounts of Americans' e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance." In other words, the NSA doesn't just target a contact overseas – it sweeps up everyone's international communications into a dragnet and searches them for keywords.

By using the Robert's Supreme Court logic, anyone's home could be broken into by the government so long as the people didn't know, there would be no violation because the people couldn't prove it.

[questionseverything]

7. i agree uncle joe

we are in this upside down world now.....our own doj is making insane unconstitutional arguments on behave of a sitting democratic president

[sabrina 1]

11. Thanks Uncle Joe. I don't understand the claim that the ACLU 'doesn't have standing'. They are

representing people who DO have standing, aren't they?

And even when they claim to have a warrant, this too is unconstitutional since the 4th Amendment requires that they show probable cause. How can they show probable cause when these warrants are apparently for thousands of people, some kind of collective warrant? Has anyone ever seen the probable cause they have presented?

Good for all those lawyers and organizations who persist in forcing this issue into the public arena, EFF, the ACLU eg.

[Uncle Joe]

13. I agree, sabrina, it's Alice in Wonderland logic.

Kudos to the ACLU, EFF and others fighting against this egregious violation of the American Peoples' civil rights, it seems the Roberts led SC doesn't give a damn.


Peace to you, sabrina.

[sabrina 1]

14. True the Roberts Court is protecting the violators but they're not the only ones, sadly.

I see defenses of the NSA on Dem forums which I never thought I would see back when EVERYONE was outraged over these Constitutional violations, at least on Dem forums.

[Uncle Joe]

17. I have no doubt, it's emotionally difficult to say the least, to oppose someone that you

greatly admire and worked or cheered so hard for to get elected.

They also have a mental balancing act of wanting to defend the Obama Administration against relentless and many times unwarranted Republican attacks, so I imagine this can be somewhat overwhelming for them.

I try to take the long view, I know Obama won't be in power past 2016, if this mass surveillance stands when the Republicans come to power (and they will at some point in the future) there will be a great gnashing of teeth, but it will be too late.

If things don't change dramatically for the better, I see our nation going past a perilous point of no return.

[sabrina 1]

18. I understand that, as it was difficult for me to acknowledge a lot of what I could not ignore, as

I did eg, with Clinton. I defended him relentlessly and in the process ignored and/or was unaware of some of the legislation he was passing and was not happy with anyone who tried to get my attention on that subject. I have learned, seeing the consequences of some of that legislation, to never again become so defensive of ANY politician, to focus on the issues and of course support those who most represent Democratic values and hope we are not going to be disappointed, again.

But this is an issue that cannot be ignored, not now with all the info available to people.

I agree that if it isn't settled NOW, when Repubs get the chance, they will only enhance further what Dems let slide over the past number of years. This was our chance, the astounding victory in 2008 but we appear to have blown it. I WILL remind anyone who now defends the NSA of that fact if I see any gnashing of their teeth should Repubs win and continue what started with Bush, was not addressed over the past number of years, and will definitely continue and get worse thanks to the unwillingness of our Reps to try at least, to stop it.

[Uncle Joe]

19. I hope it doesn't come to that gnashing of teeth point.

Peace to you, sabrina.

[TheKentuckian]

49. Hell, some of the traitors actually consider the threat as something of a feature

GOTV or the Republicans will be unleashed!

[woo me with science]

50. Thanks for this link. nt

[rosesaylavee]

3. Thank you!

[Uncle Joe]

21. rosesaylavee, I haven't seen you in a while.

Thanks for the thanks, I hope you are doing well.

[rosesaylavee]

37. I am doing well

... busy 'trying to save the planet' as my rw aunt says when we speak.

I always enjoy your posts but sometimes don't take the time to respond.

[Uncle Joe]

38. Well, I'm glad you did.

Keep saving the planet.

[rosesaylavee]

39. Will post again when it is saved.

[Uncle Joe]

41. I hope so, that would be a great post!

[RufusTFirefly]

4. And yet Gen. Hayden insisted that the amendment doesn't include the phrase "probable cause"

It was one of the most bizarre and disturbing exchanges I've seen in years

For those who don't recall, Hayden was the former head of NSA.

After stubbornly and repeatedly insisting that a phrase that is clearly in there isn't, he had the temerity to contribute this little tidbit: "...believe me, if there's any amendment to the US Constitution that employees of the National Security Agency are familiar with it's the Fourth."

[Uncle Joe]

8. Perhaps Hayden was thinking of China or Russia's Constitution?

It's scary that someone could be so high up the power chain and be so ignorant or willfully ignorant about the Prime Directive Document that he swore to uphold and defend.

Thanks for the video, RufusTFirefly.

[sabrina 1]

15. And to think he took an oath to 'defend and protect the US Constitution from all enemies, both

foreign and domestic'. It is simply stunning that he made that statement and that there was no outrage over a man in such a trusted position, not even knowing what it is he swore to protect.

[Ichingcarpenter]

27. What's scary is the overt display now

of a runaway national security state, which is above the constitution, courts, legislative oversight, and even the president who may be trying to do some oversight but ends up being a spokesman for them.

God forbid of McCain or Romney had been elected they would have been even bigger tools and fools for the runaway national security state

We have witnessed just how bad it is with the Obama/ Merkel phone call where she knew about the CIA spy and he didn't that Obama is out of the loop. Let alone the previous revelation of wire tapping on her phone . Just how much more is there under this iceberg? .......Well I think we can see a small piece of it with Justice not pursuing the spying on the Senate in the CIA torture tape case. I'm betting the NSA had stuff that they shared with the CIA. Senator Feinstein is not clean in her financial holdings as are some of the others that do oversight.. Now the report is delayed, again, which the CIA showed they hold the cards yet again and not the President.

Both Kennedy and Eisenhower tried to reign in these agencies after having the national security state run their agenda over the oversight of the executive. Ike and the U2 flights which caused him later to warn the nation of the danger of the MIC and Kennedy on the bay of pigs and assassination of South Vietnam's president, Ngo Dinh Diem. Well Kennedy was soon assassinated himself and the CIA will not release those files on their part or knowledge of that history either which have been promised to historians for years.

There is a shadow government that Snowden and others ie. Sen. Frank Church, over the years have revealed and its not pretty, comfortable and hard to acknowledge because it breaks the paradigm of what we believe our reality is.

Anyway I agree about the fourth.

[Uncle Joe]

30. Thanks, Ichingcarpenter, I agree Feinstein is most troublesome in all this.

Peace to you.

[truebrit71]

40. But it's okay if 'our guy' does it because 'our guy' wouldn't ever use it for evil, only good...

....or something...

The refusal from the worshippers to see the long game, that at some point, someone who is NOT 'our guy', and NOT on 'our side' will be in office, and by then it'll be too late to get the toothpaste back into the tube...

This should not be a partisan issue, this should be an Us v. Them issue...a Right v. Wrong issue, and right now 'Wrong' is winning going away...

[sabrina 1]

12. That's amazing, I had not seen that. I just mentioned that phrase above because it's clear that

the secret warrants on thousands of people cannot possibly have shown probable cause on each one. Or are they claiming that tens of thousands of Americans are collectively guilty of something? I can't believe they have managed to get away with this in a so-called Democracy for so long.

[Vincardog]

42. It is not "tens of thousands of Americans" it is EVERYONE hundreds of millions of Americans and

they are recording and keeping EVERYTHING that passes their scope.
Every word, written or spoken, every email, every tweet, post or IM.
These religious zealots worshipping at the altar of MONEY are sacrificing our Privacy for
imagined "security" from exaggerated threats.

[sabrina 1]

43. Yes, I know and I share your anger at all of it. I was talking specifically about their

defense which is 'we got a warrant'. My question has always been 'how do you get a group warrant on millions of people'. But this is the law they got passed which is clearly anti-Constitutional and I was commenting on the link above where it appears I am not the only one questioning the legitimacy of such a law.

[Vincardog]

44. We have been living in a lawless state for decades, it is only now the "average man" is starting to

notice.

[WillyT]

5. HUGE K & R !!! - Thank You !!!

[Uncle Joe]

9. Thank you, WillyT.

[cantbeserious]

10. Too Sad That More Americans Are Unfamiliar With The Fourth Amendment - Thank You For Sharing

eom

[Uncle Joe]

20. Thanks for the thanks, cantbeserious. n/t

[suffragette]

16. Glad to recommend this!

And a hearty kick, too

[Uncle Joe]

24. Thanks, suffragette, it's good to see you here.

Peace to you.

[suffragette]

35. Thurgood Marshall saw much of this coming when he dissented in the Maryland case.

Of course he did not foresee the systems, such as use of the internet and 'the cloud' that relay our information and store it globally, but he did note that use of technology provided by businesses should not mean that people give up their rights to privacy generally.

He and the other most liberal members of the SCOTUS of the time understood that and dissented from the conservative decision. And I think it's important that view and note that difference, just as we do now with current decisions.

Please forgive the self-referenced links, but it' s the easiest way to include the info I researched earlier here.

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=3006821

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=3008053

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=3010982


Always glad to see your posts and Peace to you as well.

[Uncle Joe]

36. That was a great dissent by Marshall and Brennan.

Applying the standards set forth in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring), the Court first determines that telephone subscribers have no subjective expectations of privacy concerning the numbers they dial. To reach this conclusion, the Court posits that individuals somehow infer from the long-distance listings on their phone bills, and from the cryptic assurances of "help" in tracing obscene calls included in "most" phone books, that pen registers are regularly used for recording local calls. See ante, at 742-743. But even assuming, as I do not, that individuals "typically know" that a phone company monitors calls for internal reasons, ante, at 743, 1 it does not follow that they expect this information to be made available to the public in general or the government in particular. Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes. See California Bankers Assn. v. Shultz, supra, at 95-96 (MARSHALL, J., dissenting).

The crux of the Court's holding, however, is that whatever expectation of privacy petitioner may in fact have entertained regarding his calls, it is not one "society is prepared to recognize as `reasonable.'" Ante, at 743. In so ruling, the Court determines that individuals who convey information to third parties have "assumed the risk" of disclosure to the government. Ante, at 744, 745. This analysis is misconceived in two critical respects.

Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications. See, e. g., Lopez v. United States, 373 U.S. 427, 439 (1963); Hoffa v. United States, 385 U.S. 293, 302 -303 (1966); United States v. White, supra, at 751-752 (plurality opinion). By contrast here, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance. Cf. Lopez v. United States, supra, at 465-466 (BRENNAN, J., dissenting). It is idle to speak of "assuming" risks in contexts where, as a practical mater, individuals have no realistic alternative.

(snip)

In my view, whether privacy expectations are legitimate within the meaning of Katz depends not on the risks an individual can be presumed to accept when imparting information to third parties, but on the risks he should be forced to assume in a free and open society. By its terms, the constitutional prohibition of unreasonable searches and seizures assigns to the judiciary some prescriptive responsibility. As Mr. Justice Harlan, who formulated the standard the Court applies today, himself recognized: "ince it is the task of the law to form and project, as well as mirror and reflect, we should not . . . merely recite . . . risks without examining the desirability of saddling them upon society." United States v. White, supra, at 786 (dissenting opinion). In making this assessment, courts must evaluate the "intrinsic character" of investigative practices with reference to the basic values underlying the Fourth Amendment. California Bankers Assn. v. Shultz, 416 U.S., at 95 (MARSHALL, J., dissenting). And for those "extensive intrusions that significantly jeopardize sense of security . . ., more than self-restraint by law enforcement officials is required." United States v. White, 401 U.S., at 786 (Harlan, J., dissenting).

Thanks for sharing, suffragette.

[suffragette]

47. Yes, and this bears repeating:

"Privacy is not a discrete commodity, possessed absolutely or not at all."

[Uncle Joe]

48. That was a great quote, Marshall saw the writing on the wall.

[DeSwiss]

22. Sorry Joe....

- If rights aren't inherent to the system and have to be written down, then they can also be erased. Like they do now......

K&R

In the Bill of Rights of the United States, there is an attempt to secure certain freedoms and protections by way of mere text on paper. Now while I understand the value of this document and the temporal brilliance of it in the context of the period of its creation, that does not excuse the fact that it is a product of social inefficiency and nothing more.

In other words, declarations of laws and rights are actually an acknowledgment of the failures of the social design. There is no such thing as 'rights' - as the reference can be altered at will. The fourth amendment is an attempt to protect against state power abuse, that is clear. But it avoids the real issue, and that is: Why would the state have an interest to search and seize to begin with? How do you remove the mechanisms that generate such behavior? We need to focus on the real cause.

We have to understand that government as we know it today, is not in place for the well being of the public, but rather for the perpetuation of their establishment and their power. Just like every other institution within a monetary system. Government is a monetary invention for the sake of economic and social control and its methods are based upon self-preservation, first and foremost. All a government can really do is to create laws to compensate for an inherent lack of integrity within the social order.

In society today the public is essentially kept distracted and uninformed. This is the way that governments maintain control. If you review history, power is maintained through ignorance.

~Peter Joseph

[Uncle Joe]

23. Thanks for the kick and rec, DeSwiss and while I agree with some of what Peter Joseph states there,

what would be the alternative?

I view our rights being written down because of the human condition and to my knowledge there is no cure for that, what the Founders faced, lust for power, greed etc. etc. we face to this day.

While there is the danger that rights can be erased or diminished, they can also be enhanced and new ones can be written as well, I don't view the Bill of Rights or the Constitution in general as static, it will be a forever going battle.

Who knows maybe one day in the distant future, our society will evolve or become enlightened to the point of perfecting the balance, but I also know we have a long way to go, until that day happens we must fight tooth and nail for those written rights.

[DeSwiss]

25. What would be the alternative?

What was it before this? We thought of something new, didn't we?

If the right of privacy is inherent there is no need to write it down. If it is written down, it is a failure of the social design we've created. It's broken and will never work as intended. To know this and continue to use a broken tool is irrational.

The Constitution and the Bill of Rights were steps to get to where we are now. I once ate my meals in a highchair but I've grown up. So have we.

Time is an illusion. The future is right now. The knowledge of our design's flaws exist -- right now. The truth of its failure is known to us -- right now. We can either pursue it and the truth, or not.

- That is the choice of us all -- right now.

[center][/center]

[Uncle Joe]

28. How do you regulate and/or enforce law without a social contract?

Where does the right to privacy end when it comes to police investigation of criminal activity, ie Jeffrey Dahmer and multitudes of other murderers, rapists, robbers etc etc.

Is the right to privacy absolute?

If I buy a house or car, I want it on contract, I want receipts for pretty much everything else in case something is defective.

Not needing a social contract sounds good but if a society doesn't have something down on paper to serve as basic guidelines even if at times, it's abused, wouldn't that create chaos?

The Constitution has changed since the days of the Founders, empowering many people that weren't, so to my way of thinking we're not "doing the same thing over and over and expecting different results."

At one time we didn't have direct elections of our Senators, slavery was outlawed, women and African Americans gained the right to vote, Prohibition of alcohol came and went.

The Constitution is not easy to change, but it's not static either.

[DeSwiss]

31. I didn't say it would be easy Joe.

- If it was easy, anybody with an opposable-thumb could do it. All the documents we now revere as ''the social contract'' -- had their genesis in something that came before it. From the Code of Hammurabi, to the Fourth Amendment is quite a leap. But that was 238 years ago. Before electricity. And before the Federal Reserve rendering everything moot anyway.

When you realize that the only reason we accept the system we have is because it was the one that was here when we got here, it really doesn't make any sense to continue this carnage.

There is enough here for us all to live together in peace.....




In the end, no one ''owns'' anything. We're all just renters during our stay here......

[Uncle Joe]

32. But it's not the same document, it has been altered and it will continue to be. I believe we

can strengthen and clarify it if need be.

This current NSA crisis may very well be the catalyst that motivates enough of us to do so.

It's true our lives are very temporary, but our legacy can live on long past our departure.

Peace to you my friend, I'm going to bed.

[DeSwiss]

33. Nite....

[riderinthestorm]

26. I've seen the excuse put forward on DU that its just too hard to separate out the illegal stuff

From the legal stuff so we just have to let the NSA keep on acting illegally. "Meh, no biggie".

That's when they're not insisting its ALL legal anyway doncha know. ..

Great OP!

[Uncle Joe]

29. Thank you, riderinthestorm, for a nation that sent humans to the moon, robots to Mars

has the power wipe out life as we know it, at times our government acts like elephants afraid of mice.

I believe the U.S. government needs to have more faith in the American People and respect for the Bill of Rights and everything else will work out okay.

Peace to you.

[xchrom]

34. du rec.

[woo me with science]

45. K&R Important post. Thank you.

[Uncle Joe]

46. It seems pretty cut and dry to me.

Thanks for thanks, woo me with science.