OpEdNews - Page 2 of Article: Finally! Constitution Wins, GOP Fearmongering Loses In Terror War

But if the GOP's walkout was aimed at bullying their Democratic counterparts, it clearly backfired. Instead, it only hardened the Democrats' resolve, with House Majority Leader Steny Hoyer (D-Maryland) calling the White House's warnings that national security would be damaged if the Protect America Act was allowed to expire "categorically false."

Nothing about the Protect America Act's expiration prevents either law enforcement or intelligence officials from carrying out new surveillance against suspected terrorists. On the contrary, its expiration negates the need to challenge the Protect America Act in court as the blatantly unconstitutional law that it was.

Indeed, many intelligence scholars and analysts outside the government say that Saturday's expiration of the Protect America Act will have little effect on national security. With the Protect America Act now dead, domestic wiretapping rules will revert to the Foreign Intelligence Surveillance Act (FISA).

Passed by Congress in 1978 to enforce the Fourth Amendment, the FISA law requires the government obtain warrants to conduct foreign intelligence surveillance in the United States. The law established the Foreign Intelligence Surveillance Court to issue such warrants in national security cases.

For White House, Telecom Immunity Is Top Priority

Even National Intelligence Director Mike McConnell, in an interview with National Public Radio, acknowledged that "some of the surveillance authorities [under the Protect America Act] would carry over to the August-September time frame." However, McConnell said the real issue over the Protect America Act is not an immediate need to protect America, but to protect the telecoms being sued for assisting in Bush's illegal wiretapping.

Indeed, Bush himself claims that unless the telecoms received assurance that they will not be sued for breaking the law (and therefore be liable for damages), those companies will not agree to enact future wiretaps, therefore undercutting the government's intelligence capabilities:

"If these companies are subjected to lawsuits that could cost them billions of dollars," Bush said. "They won't participate; they won't help us; they won't help protect America."

Yet the bottom line remains the fact that the telecoms violated the law by turning over their customer records to the government without first requiring the government to produce court warrants. This requirement is mandated by the Electronic Communications Privacy Act of 1986.

To reward these telecoms for breaking the law by granting them retroactive immunity from lawsuits is to unconstitutionally deny the American people their First Amendment right to seek redress for the violation of their privacy rights under the law.

War or No War, Government Must Abide By the Constitution

As this blogger wrote back in September, the dangers posed by terrorist organizations such as al-Qaida are very real. But it's time for Bush to be forced to obey the Constitution he is bound by his oath of office to "preserve, protect and defend." The Fourth Amendment clearly mandates the government to obtain warrants for electronic surveillance, regardless of whether America is at peace or at war.

The fact that America is at war -- which Congress, under its exclusive authority under the Constitution, did not declare -- does not give the president the right to spy on Americans without court warrants. Nor does it give him the right to disobey a direct order of the nation's highest court -- handed down 35 years earlier -- that the government must obtain warrants for electronic eavesdropping.

Article VI of the Constitution says quite explicitly:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

"The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."

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