Turning in Their Graves
A Look at EO 12949
by Gary Hunt
A few people have questioned what, exactly, was intended by the proclamation made by Bill Clinton in Executive Order 12949, titled "Foreign Intelligence Physical Searches" (entire text follows). We may never know what Bill had in mind, but we can look at the wording of the EO and see what might be created as a result of this "Executive Order" .
The foundation or justification, of the Order is the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801) and it"s subsequent amendment by Public Law 103-359. I have not reviewed these "laws", but it is clear by the first paragraph of the Executive Order that the President may authorize physical searches for foreign intelligence purposes, which method appears to be defined by this document.
Section 1 of Executive Order 12949 provides that "The Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information..." This seems pretty basic, a delegation to the Attorney General a power which displaces the courts authority, to whom she should be subject. Now, the Order clearly says "foreign intelligence information", so, we might wonder what, exactly, that is. Without going into detail, consider that being a Citizen of a state which is a part of the Union instead of a US citizen, might be considered "foreign" to the US government. This recognition exists in certain legal decisions. How else might this be used? Without requiring the affidavit necessary for a proper search warrant, perhaps a mere suggestion might make you "guilty" of speaking with a known foreign agent. This sounds much cleaner than planting drugs in the house of someone known not to do drugs. No affidavit, no warrant all together this puts a lot of faith in the integrity and honesty of government, and I have trouble with that.
Section 2 gives the authority to approve application to the Foreign Surveillance Intelligence Court [which, apparently, is created by the "Act"]. Surely not an Article III (Constitutional) court, but, more likely an administrative agency tribunal, much like tax courts and traffic courts. If it were a real court, there would be no problem "issuing" warrants, which are what the Executive Order circumvents.
Section 3 determines who may make certifications in support of the applications. State and Defense Departments, the CIA and the FBI, because of their alleged relationship to national security or defense, are included. Rather ominous is the fact that these agencies appear to be subordinate to the Attorney General.
The final paragraph in the Order does bring the Senate into the crime of this violation of the Fourth Amendment by assuring that they were party to the selection of the players. This might make it very difficult for any member of the Senate to ever take a position contrary to the Act, (say in support of the Constitution), because it would be pointed out that he is already party to the Order.
Probably most important, however, is, "does EO 12949 apply to me?" Some have suggested that it only applies to federal employees, or, that it would never be applied to "us little folks". Under the Constitution, this is probably true. Under the state of emergency we have been in since 1933, the ramifications of this Act should be looked at in a different light.
Income tax was only applicable to federal subjects (employees and creations) until after 1933. Social Security established an account number, and by World War II, the Liberty Tax was implemented. Now, income tax applies to all who do not stand against this usurpation. Federal jurisdiction, under the Constitution, is extremely limited. Gordon Kahl, Randy Weaver and David Koresh were just "little people" until they became headlines. We have Supreme Court decisions which establish that "All laws which are repugnant to the Constitution are null and void." [Marbury v. Madison, 5 U.S. (2 Cranch) 137, 174, 176 (1803)]. This means little, however, when the guns come to town.
The problem with acts such as EO 12949 is whether they apply to us, or not. The government (at least the employees with the guns) believe that it applies to us. When they come to your door, as they did in Waco, are you going to stand in the doorway and say, "Hey! There are women and children in here. And, besides, the Constitution doesn"t allow you to come on my property"?
Let"s go a bit further, though, and look at what has happened since the House Republicans signed their new "Contract with America". We have GATT, which is in conflict with the Constitution. We have HR-97 which creates a 2500 man "hit team", much like the 1000 who assaulted that little church in Waco. And, we have HR 666 which allows any fruits of a search, whether they are the object of the warrant, or not, to be used as evidence against you.
The Fourth Amendment protection, which was codified as the "exclusionary rule", will no longer protect you if the officer making the search believes that he was acting within the law. The decision, then, is not of a judge, rather of a street cop, a member of the Rapid Deployment Strike Force, or a member of a team which is looking for proof of foreign intelligence under the authority of EO 12949. The fruits of his search may then be used against you if he believes that he was within the law. The only difference between the three examples is that in the latter one, there is NO warrant. There is no need to find a judge, or magistrate willing to stick his neck out, as Walter Smith and Dennis Greene did in Waco. Those who suggest this Order cannot operate against us are right only if they recognize that it may become necessary to defend right over government, perhaps with their very lives. The encroachment on our lives has been a slow and continual process. Let us not sleep while other means are created to undermine the remainder of the Constitution.
If EO 12949 does not operate on you now, it is only a matter of time. Just as HR-666 has made law what some judges have practiced for many years, it amounts to an accumulation of small events that, when put in proper perspective, have the result of denying us exactly what the Constitution was instituted to protect.
If we look at the transgressions of authority, the usurpation of power over the past two centuries, especially the past 60 years, we see a pattern which might be described as "a long train of abuses". It might well be compared to boiling a frog. However, if we wish to not look at what is happening, if we choose to cast aside these clear deviations from the Constitution, and we place ourselves in the position of wondering why we didn"t see the problem in time to stop it. We can explain to our children, and their children, that the enemy was far more clever than we. We tried, but we didn"t see the signs in time. When it became clear, it was too late. But, then, perhaps we can get them to dream of a different world -- as was described in the "old" history books.
Executive Order 12949
of February 9,1995
Foreign Intelligence Physical Searches
By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("ACT") (50 U.S.C. 1801, et seq.), as amended by Public Law 103-359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:
Section 1. Pursuant to section 302(a) (1) of the Act, the Attorney General is authorized to approve physical searches without a court order-, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.
Section 2. Pursuant to Section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.
Section 3. Pursuant to section 303(a) (7) of the Act, the following officials, each of whom is employed in the area of national security or defense is designated to make the certifications required by section 303(a) (7) of the Act in support of applications to conduct physical searches: (a)Secretary of State;
(b)Secretary of Defense;
(c)Director of Central Intelligence;
(d)Director of the Federal Bureau of Investigation;
[e)Deputy Secretary of State;
(f)Deputy Secretary of Defense, and
(g)Deputy Director of Central Intelligence.
None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President, by and with the advise and consent of the Senate.
<signature of the President>
The White House. February 9, 1993
[This EO was published in the Federal Register on February 13, 1995, at page 8169.]
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