Thursday, February 28, 2013

Real Assault on Our Rights

For all the palaver about assaults on our Constitutional rights with regard to the Second Amendment, let's take a moment to consider a recent decision affecting our Fourth Amendment rights. During his administration, President Bush appointed two justices to the Supreme Court. One of those appointees, Justice Samuel Alito, joined by the other four Conservative appointees, just issued the ruling in Clapper v. Amnesty International. For those who claim to be concerned about threats to our Constitutional rights, this is a real and actual matter of concern.

In a nutshell, Justice Alito, joined by C.J. Roberts and Justices Scalia, Kennedy, and Thomas, has placed warrentless wiretapping in a nifty (for the Government) Catch-22 - in order to bring a suit for damages arising from an unconstitutional search and seizure with respect to a warrentless wiretap of your communications, you have to prove first that you are in fact one of the individuals the government has wiretapped and are in their database. The rub is that the government holds no requirement to disclose the individuals who are the targets of the wiretapping.

As Glenn Greenwald notes, "a law without a remedy is worthless," as he quoted Alexander Hamilton in Federalist 15 - "It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation." This shameful tactic of removing standing to shield the law from Judicial review is one that President Bush used with FISA; it's doubly shameful that President Obama has continued the tack.

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