FOX News' Top Law Analyst Says Protect America Act Unconstitutional

By Cernig

Andrew P. Napolitano, "a New Jersey Superior Court judge from 1987 to 1995, is the senior judicial analyst at the Fox News Channel" and has written that FISA and warrantless seraches of all kinds are unconstitutional and that eforts to weaken Fourth Amendment protection still further ammount to an "Invasion of America" by UnAmerican idealogues.

Of course, he hasn't done so for FOX, but rather for the LA Times in an op-ed yesterday:

The FISA statute itself significantly -- and, in my opinion, unconstitutionally -- lowered the 4th Amendment bar from probable cause of "crime"to probable cause of "status." However, in order to protect the 4th Amendment rights of the targets of spying, the statute erected a so-called wall between gathering evidence and using evidence. The government cannot constitutionally prosecute someone unless it has evidence against him that was obtained pursuant to probable cause of a crime, a standard not met by a FISA warrant.

Congress changed all that. The Patriot Act passed after 9/11 and its later version not only destroyed the wall between investigation and prosecution,they mandated that investigators who obtained evidence of criminal activity pursuant to FISA warrants share that evidence with prosecutors. They also instructed federal judges that the evidence thus shared is admissible under the Constitution against a defendant in a criminal case. Congress forgot that it cannot tell federal judges what evidence is admissible because judges, not politicians, decide what a jury hears.

Then the Bush administration and Congress went even further. The administration wanted, and Congress has begrudgingly given it, the authority to conduct electronic surveillance of foreigners and Americans without even a FISA warrant -- without any warrant whatsoever. The so-called Protect America Act of 2007, which expired at the end of last week, gave the government carte blanche to spy on foreign persons outside the U.S., even if Americans in the United States with whom they may be communicating are spied on -- illegally -- in the process. Director of National Intelligence J. Michael McConnell told the House Judiciary Committee last year that hundreds of unsuspecting Americans' conversations and e-mails are spied on annually as a consequence of the warrantless surveillance of foreigners outside the United States.

So where does all this leave us? Even though, since 1978, the government has gotten more than 99% of its FISA applications approved, the administration wants to do away with FISA altogether if at least one of the people whose conversations or e-mails it wishes to monitor is not in the U.S. and is not an American.

Those who believe the Constitution means what it says should tremble at every effort to weaken any of its protections. The Constitution protects all "persons" and all "people" implicated by government behavior. So the government should be required, as it was until FISA, to obtain a 4th Amendment warrant to conduct surveillance of anyone, American or not, in the U.S. or not.

If we lower constitutional protections for foreigners and their American correspondents, for whom will we lower them next?

And then they came for the dissenters.