Transcript of the Edward Snowden portion of my show this week

[JDPriestly]

69. The technology today makes the facts very different.

I understand that it is a conflict between Article II and Amendment 4.

The Fourth Amendment should take precedent over Article II. Normally when two laws or two provisions in a Constitution conflict, the most recently adopted prevails. Clearly, the Fourth Amendment was intended to limit the Congress, and the Congress was supposed to be responsible for enacting laws. The President does not have the power to pass laws.

https://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/bill-rights-brief-history

Further, the purpose of the Bill of Rights is to limit government and protect natural rights. Therefore, Article Four limits Article II.

The crux of Snowden's question to the counsel for the NSA was whether an Executive Order may supersede an Act of Congress. The NSA counsel admitted that it does not. The programs or at least some of them are authorized by Executive Order not by an act of Congress. Members of Congress have stated that they did not intend Section 215 of the Patriot Act to widely spy on Americans.

No matter what the Supreme Court has ruled, the president does not have the power to spy on citizens including members of Congress and the Supreme Court without a warrant based on probable cause and specifically describing the items to be searched and, or seized based solely on the alleged threat of terrorism to the extent that it has apparently been doing. The orders the FISA court has been issuing look very much like the general writs of assistance that were one of the major reasons the Americans revolted against the British crown.

Is the executive branch violating the Fourth Amendment for a compelling reason? That is a major question. Because the NSA programs gather so much information and affect the privacy of so many people, if a case finally goes up before the Supreme Court, we may get a very different answer to that question than we have had in the past.

If the Fourth Amendment could be violated for national security, it would not have been added to the Constitution. When did we have less national security than at the time the Bill of Rights was enacted. England and America were not yet at peace. England was a militarily great, if not the militarily greatest country of that time.

I recall the 1960s. The 1970s. The 1980s. The 1990s.

I remember taking a transatlantic trip on the Jordanian Airlines with my children in the early 1980s. We had to be checked for posing a potential terrorism threat. The guys who checked my pre-school children took some of the candy their friends had given them as a going away present. They ate it in front of my children. So terrorists were already a problem then.

The threat of terrorism never ends. Before Al Qaeda it was the threat of Communism although the percentage of Communists in the US was teeny-tiny.

Before that it was Fascism. There has always been an enemy.

And then think back to the time when the Fourth Amendment was added to the Constitution. There has never been a more dangerous time in our history, yet the Founding Fathers felt that the Fourth Amendment was important enough to include in the Constitution.

The NSA programs applied to Americans violate the Constitution and are unnecessary. It's just a matter of time until the Supreme Court takes a well stated case in which the issues are clearly stated, and we will see change. It could take a long time, but it is just a matter of time.

The whole point of the Bill of Rights is to guarantee our natural, human rights and narrow or limit the rights of our government. The NSA surveillance violates that basic concept of our government.

The NSA surveillance within the US also gives too much power to the executive within the US. That is not permitted in Article II. We may have a terrorism problem, but we are not in a state of insurgency. The NSA's programs must be ended. Congress and the courts have to find the courage to end them if the President is unable or afraid to do it.