Constitution Day?

Two hundred and twenty years ago tomorrow, on September 17, 1787, the Constitution of the United States of America was signed at Philadelphia by thirty-nine brave men who changed the course of history.

It was later ratified by conventions in each state in the name of "the people," but only after a national debate on the need for a Bill of Rights which was later adopted as the first Ten Amendments. The Bill of Rights sets out our basic rights as citizens and the limits of government power over us.

Notwithstanding the many deviations by activist judges who attempt to legislate from the bench in recent times, the Constitution was intended to be the supreme law of the United States.

It provides the framework for the organization of the United States government and of the Union of States. The document defines the three main branches of the government: the legislative branch with a bicameral Congress, an executive branch led by the President, and a judicial branch headed by the Supreme Court.

In addition to the organization of these branches, the Constitution outlines which powers each branch may exercise. It also reserves numerous rights to the individual States and to the people, thereby establishing the federal system of government. It is now the world's oldest federal constitution.

Mass Ignorance

Yet, if you have ever watched Jay Leno's "Man in the Street" TV interviews, on questions regarding the Constitution and American history, far too many Americans are ignorant of both.

In 2005, Congress passed legislation mandating that educational institutions that receive federal funds must hold an educational program relating to the U.S. Constitution on or around September 17, the date it was signed in 1787. Tomorrow, Constitution Day, is a time for us to review and consider the legacy of the Founding Fathers of America, to understand better the Constitution, and to promote good citizenship in new generations of Americans.

Amendment IV

One of the most important protections for individuals in the Bill of Rights is contained in the Fourth Amendment.

Amendment IV guards against unreasonable official searches, arrests, and seizures of property without a specific warrant based on a "probable cause" to believe a crime has been committed. Some rights to privacy have been inferred from this amendment and others by the Supreme Court. When police conduct a search, the amendment requires them to have probable cause to believe that the search will uncover criminal activity or contraband. In other words, they must have legally sufficient reasons to believe a search is necessary

Writs of Assistance

The Fourth Amendment had a specific historic cause.

It was designed by the Founders as a response to the controversial British "writs of assistance," a type of general search warrants which were a significant factor in causing the American Revolution. The King's colonial agents used these writs to harass thousands of American colonists, especially for tax collection purposes, and were bitterly opposed.

John Adams, viewed these writs "as the spark in which originated the American Revolution." Seeing the danger general warrants presented, the Virginia Declaration of Rights explicitly forbid the use of general warrants, as did the laws of many colonies, laws which the King's agents ignored..

To block such highhanded official conduct, the Amendment specifies that judicially sanctioned search and arrest warrants must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court.

Up until the adoption of the PATRIOT Act in 2001, only a judge or official magistrate could issue such search warrants.

FBI Repeals Amendment IV

It is therefore highly ironic that a few days before Constitution Day, the Federal Bureau of Investigation, announced new rules governing FBI agents which, in my opinion as an attorney, in effect abolishes the Fourth Amendment.

The new rules will do away with Amendment IV's requirement of probable cause, giving the FBI's more than 12,000 agents the ability to conduct physical surveillance, solicit informants and interview friends of people they are investigating without the approval of a bureau supervisor and certainly without the approval of a judge or the issuance of a search warrant.

Such techniques unconstitutional police state techniques have been called as "fishing expeditions" in which police cast a wide net without a specific suspect or crime having been shown.

And this new investigative power will allow FBI agents to pursue leads not just on national security or foreign intelligence, as in the past, but will allow them to go after even ordinary criminal cases.

Bad Past Record

In 2007 the U.S. Justice Department's inspector general issued a scathing report criticizing how the FBI had abused a form of administrative subpoena called "security letters" to obtain thousands of telephone, business and financial records in secret without prior judicial approval. The report said that the FBI lacked sufficient controls to make sure the subpoenas, which don't require a judge's prior approval, are properly issued. According to this report, the FBI doesn't even follow the rules it does have. The head of the FBI later admitted these charges were true and apologized, promising things would change.

Under the U.S. PATRIOT Act the bureau has issued more than 20,000 of these "national security letters," far more then previously admitted, and the DOJ report concluded that the program lacked effective management, monitoring and reporting procedures.

But even with this proven evidence of wholesale violations of the Fourth Amendment by the FBI, the Bush Justice Department is going right ahead and giving the same FBI sanction for the past unconstitutional acts and new authority to continue their unlawful conduct.

Is This Constitutional?

Over more than two centuries, scores of U.S. Supreme Court cases have defined the constitutional rights embodied in the Fourth Amendment that prohibits government searches without a warrant and without a prior showing of probable cause.

The truth is that the government really doesn't need these greatly expanded police powers. It already has authority to prosecute anyone it has probable cause to believe has committed, or is planning to commit, a crime. It also has the authority to engage in surveillance of anyone whom it has probable cause to believe represents a foreign power or is a spy, whether or not the person is suspected of any crime. All they need is probable cause and a valid warrant.

In my opinion, while destroying our liberty and privacy, these broad police powers have not increased measurably our national security or safety.

Perhaps the Justice Department and the FBI should be forced to observe Constitution Day by reading that once sacred document and following its clear dictates. Or may be the Congress should repeal the Amendment and allow general writs of assistance to be issued by the latest King George.

I wonder how many American would even care?

* In the aftermath of the 9/11 tragedy, the PATRIOT Act became law with great haste . I call this law the "greatest single assault on personal and financial privacy in U.S. history." To learn about this far-reaching privacy invasion—and what you can do about it, click here.