Last week, Rep. Justin Amash, R-Mich., introduced an amendment to the Defense Appropriations Bill. It required the NSA and other government agencies merely to obey the Patriot Act, not the Fourth Amendment. That the data to be collected are \u201crelevant to an ongoing national security investigation\u201d doesn\u2019t mean that there is probable cause that the person whose records are collected has committed a crime.<\/p>\n
The language was taken from Sec. 214 of the Patriot Act, which amended Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842).<\/p>\n
Amash\u2019s amendment did not attempt to enforce the standard set in the Fourth Amendment, which requires \u201cprobable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\u201d That the data to be collected is merely relevant to an ongoing national security investigation doesn\u2019t necessarily mean that there is probable cause that the person whose records are collected has committed a crime.<\/p>\n
That means the Patriot Act is unconstitutional, according to any reasonable interpretation of the Fourth Amendment.<\/p>\n
The NSA\u2019s activities do not even meet the lower standards set by the Patriot Act. They are illegal even under an unconstitutional law.<\/p>\n
It is important to remember the difference between \u201cconstitutional\u201d and \u201clegal.\u201d Legal means the activity in question complies with existing law passed by a legislative body. Constitutional means the legislative body had been given the power to pass the law in the first place.<\/p>\n
The U.S. Congress not only wasn\u2019t given the power to pass the Patriot Act, it was strictly prohibited from doing so by the Fourth Amendment. Congress passed the legislation anyway. The NSA hasn\u2019t even complied with that.<\/p>\n
Not only was Amash\u2019s amendment defeated, but its sponsors were met with a backlash of scorn and ridicule from Governor Chris Christie and other defenders of the national security apparatus, citing the need to protect Americans from terrorism, regardless of the legal and constitutional issues.<\/p>\n