Executive Repeal of the 4th Amendment
by
Matt Giwer (c) 1995 <2/25>

      On the 9th of February 1995, President Clinton signed and Executive Order permitting, he imagines, a direct violation of the 4th amendment to the US Constitution. While it is questionable that if emplemented and challenged it could pass muster before the Supreme Court in itself it is of serious interest to the citizens of this country. The first paragraph contains the clear violation of the 4th amendement.

      Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

The 4th Amendment reads

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.

      The procedures in the 4th clearly refer to a warrant issued by the court and the first section of the Executive Order (EO) clearly acknowledges that requirment by waiving it. Now this is not the secret wiretaps of a bygone era. These are, as is spelled clearly spelled out, physical searches. These are the tear the place apart and trash it kind of searches.
      Wiretaps by anyone who felt like it were bad enough. Secret court orders were bad enough. Now the government dispensing with the need for judicial review and vesting the power to violate the 4th amendment in the Attorney General, a political appointee.
      If this is not bad enough, what is foreign intelligence and why would anyone expect to find any in this country? I will grant we have some very intelligent foreigners in this country and well as some intelligent citizens. But even if foreign intelligence is to be found in this country, I have a question.
      The Cold War is over. What foreign country is this addressing? Lebenon, Rwanda, England, Mexico, Canada?
      And as with any writer I will not leave you guessing, the answer is yes. You see, foreign intelligence is a term different from national security intelligence. As any intelligence officer will tell you, all information is valuable and you never know when a connection will be made between something trivial and something important.
      Thus in authorizing these physical searches, there are no bounds or limits should a person be suspected of having a laundry ticket from a shop in Pua Pua. That would legitimately be considered foreign intelligence. Who knows? It might be a secret message to a Pua Puan spy.
      Now we move on to Section 2

Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.

      This papagraph brings up more questions than it answers. In Section 1 we find the political appointed Attorney General can approve these "trash the place" searches. Now we discover she can also apply to the Foreign Intelligence Surveillance Court to obtain such orders. Pardon me. What is a Foreign Intelligence Surveillance Court?
      Is this court in the phone book? When was it established and by whom? Where does it meet? Who are its members? How are members appointed to the court? When does the Senate Judiciary Committee hold hearings on the nominations? What is their chain of command to the Supreme Court? What are its powers (other than issuing secret physical search warrants)? Is anyone tried by this court? Over what laws does it have jurisdiction?
      More succintly, that in the hell is this thing? Does anyone know for certain?
      Don't worry, it gets worse. We find in Section 3

Sec. 3. Pursuant to section 303(a)(7) of the Act, the following officials, each of whom is employed in the area of national security or defense, is designated to make the certifications required by section 303(a)(7) of the Act in support of applications to conduct physical searches:

(a) Secretary of State;
(b) Secretary of Defense;
(c) Director of Central Intelligence;
(d) Director of the Federal Bureau of Investigation;
(e) Deputy Secretary of State;
(f) Deputy Secretary of Defense; and
(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President, by and with the advice and consent of the Senate.

      Now, a, b, and c are high ranking officials but it does make one thing very apparent, this is not about national security. The Department of State is not involved in national security intelligence but rather in all forms of intelligence about a country other than the US.
      The Secretary of Defense and the Director of the CIA do have legitimate interests in national security matters and therefore intelligence related to national security but nothing more. In fact the CIA is specifically excluded from operations within the US so why is the CIA being given the power to search? I doubt that applies only to other countries as neither the AG nor this mysterious court would have jurisdiction in other countries.
      Now it does sound rather impressive to have the Director of the FBI on the list, we know they are great at catching spies, save we must ignore this EO is not limited to espionage matters. We also note that the Director of the FBI reports to the Attorney General. That is his boss. If there were a better example of lacking independence, it is difficult to find one.
      Note that for e, f, and g the words Secretary and Director are in the singular. Surprise folks the correct usage of the terms would be plurals. There are a passle of them. I can remember at least five Deputy Secretaries of Defense off of the top of my head and it has been years since I was in that business. There are at least two Deputy Directors of the CIA and lord knows how many running loose in the State Department.
      So what started as a narrow list of seven people has grown to an unknown number that legally includes by failure to exclude Deputies in charge of Personnel. The only saving grace in this is the last paragraph that prohibits temporary appointees from getting permission for these warrants until sanctioned by Congress.
      Now lets take a better look at this. This is the same Attorney General who, based upon her own fantasy life, authorized the murderous attack on Waco. And you will all remember, even though she is known to have flat out lied to the nation on television, she has not been investigated for her complicity in in seventy some deaths.
      Now that gives me a real fuzzy, warm feeling this power will not be abused. And after all, Waco itself was only a physical search warrant. This would be easier though. Many of the Davidians were foreign nationals. Obviously they possessed some form of foreign intelligence.
      Not in my America!