4th Amendment: RIP
November 21, 2002
By Carol Norris
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4th Amendment, an unwavering champion of our right to privacy,
died on 18 November 2002. The amendment, adopted by the convention
of states on 17 September 1787, was 215. The 4th tirelessly
fought to guarantee that “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 4th has had health issues over the years, struggling
with those that have tried to weaken it. Most recently, it
received a life-threatening blow from the USA Patriot Act.
But lower courts, concerned about possible civil liberties
abuses, tended to the injury by trying to curtail some of
the Act’s power.
On the 18th, the ruling of the lower courts was overridden
by an all but unknown court: the Foreign Intelligence Surveillance
Court of Review, which is the appeals arm of the Foreign Intelligence
Surveillance Court (FISC). The appeals panel includes three
men that were appointed by Chief Justice William Rehnquist.
The courts meet in secret at the Justice Department. Initially,
the FISC ruled the surveillance privileges sought by John
Ashcroft after 9/11 “were not reasonably designed” to ensure
the privacy rights of citizens. It cited many previous abuses
of surveillance laws. But government lawyers sought a review.
And the appeals panel determined the authorized surveillance
measures of the Foreign Intelligence Surveillance Act (FISA)
And so, with the courage characteristic of its life, the
4th succumbed to this ruling at its home in the pages of the
Constitution, surrounded by friends and loved ones.
Ann Beeson of the American Civil Liberties Union, a long-time
supporter of the 4th, stated: “As of today, the attorney general
can suspend the ordinary requirements of the 4th Amendment
in order to listen to phone calls, read e-mails, and conduct
secret searches of Americans’ homes and offices.” Those that
are being monitored won’t know it. So, in essence, there is
no mechanism in place to challenge the surveillance. And currently,
only the government can do that.
John Ashcroft was reportedly seen shortly after the decision
dancing around in circles on tiptoe, hugging himself while
singing, “hot damn, hot damn, hot damn.” On record, he called
the ruling revolutionary and said, “the decision allows the
Department of Justice to free immediately our agents and prosecutors
in the field to work more closely and cooperatively in achieving
our core mission…the mission of preventing terrorists attacks.”
As it stands, the definition of a “terrorist” is broad enough
to include almost anybody.
Even if the ruling had gone the other way, the 4th would’ve
surely lost its life at the hands of the likes of John Poindexter
and his new post-9/11 brainchild: the Information Awareness
Office (IAO), a new Pentagon operation with a $200 million
budget that Poindexter will head. Poindexter, retired rear
admiral and former national security advisor is most remembered
for another of his brainchildren: funding anti-Sandinista
rebels in Nicaragua by selling arms to Iran. He was released
from the jail sentence he was serving for lying about this
to Congress because it was decided his evidence warranted
The premiere program of the IAO will be called the Total
Information Awareness Program. This program, if it so desires,
can develop a dossier on every single American, unearthing
and tracking nearly everything a person does with little or
no need to explain itself and its motivations. This unchecked,
broad-sweeping power is something our dearly departed amendment
would be greatly dismayed to see.
The 4th was loved and respected by the citizens throughout
the US that it protected. “How will I ever feel comfortable
exercising my 1st amendment rights without the protections
of the 4th?” asked one mourner, crying into her copy of the
Constitution. Fearing repercussions, she refused to state
her name. “I always knew I could count on it,” she continued.
“It was always there for me.” Another sobbed, “El Cuarto -
that’s what we used to call it - was such a big part of my
life. It’s what made our country different from those police
states. What are we going to do now?”
What indeed. The 4th Amendment will be sorely missed.
It is survived by 26 sibling amendments. The besieged 1st,
6th, and 14th amendments are also fighting for their lives.
And the 2nd continues to be held hostage by special interests.
The surviving amendments ask that in lieu of flowers, you
send your congressperson(s) your heartfelt sentiments.
Carol Norris is psychotherapist and freelance writer. She
can be contacted at firstname.lastname@example.org.