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FOX News Doesn't Like The Fourth Amendment

Reported by Ellen - May 12, 2006 -

It was pretty clear last night (5/11/06) that when CEO Roger Ailes claims that what distinguishes FOX News is “we like America,” he doesn’t mean the Fourth Amendment to the U.S. Constitution. First, FOX News buried a discussion about the uproar over the NSA’s secret collection of phone call records of tens of millions of Americans into the second half-hour of Hannity & Colmes (after a double segment about the Duke rape case). Then it provided conservative Republican Newt Gingrich as the only guest, with no civil liberties expert as balance. So when Gingrich, who also happens to be a FOX News employee, dismissed search warrants as legal technicalities – well, one began to get the message. And that’s not counting the false, misleading information given by Sean Hannity.

Gingrich started by agreeing with Alan Colmes that the Bush Administration has not leveled with the American people over what kind of domestic spying is going on. But, Gingrich quickly added, “I’m prepared to defend a very aggressive anti-terrorist campaign. And I’m prepared to defend the idea that the government ought to know who’s making the calls as long as that information is only used against terrorists and as long as the congress knows that it’s underway.” As he later elaborated, respecting the Fourth Amendment was optional.

Sean Hannity defended the Bush administration by attacking and misrepresenting those who care about American civil liberties. First, he put up the straw man argument that liberals keep calling the program wiretapping when there’s no wiretapping. “All we’re looking at is patterns to find the enemy. We’re not looking at the content, we’re not listening to people’s calls.”

Maybe not in the most recently revealed program, but in the program revealed on December 16, 2005 by the New York Times, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States.”

Next, Hannity falsely characterized the Echelon program under President Clinton. “Under the Echelon program, our government had the ability to monitor both the substance and the content of phone calls, emails and faxes… before 9/11. Under this program, the NSA is not collecting substance, they’re not listening to the content of anybody’s call, it’s far less intrusive than anything under the Echelon program and I think that this is being made into a political program by people that supported a far more intrusive program.”

But Hannity neglected to mention that under the Echelon program, warrants were obtained from a FISA court before eavesdropping on conversations in the United States. As Think Progress reported, George Tenet, then-director of the CIA, testified in 2000, “We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department.”

Therefore, Hannity was either lying or speaking ignorantly as he continued, “I am really bothered that there’s a false impression out there that George Bush – his government – is now listening to the phone conversations and looking in and monitoring what the American people are doing at home… People need to understand that what happened in the 90’s were far more intrusive.” Hannity also made the dubious statement, “The Supreme Court has ruled extensively on the issue.”

Alan Colmes was the lone member of the group giving any consideration to the Fourth Amendment. “The FISA law says the exclusive means by which they can do electronic surveillance is the FISA law. It doesn’t say eavesdropping. It says electronic surveillance.” Colmes added that Michael Hayden, Bush’s nominee to head the CIA and who, as head of the NSA from March 1999 to April 2005 would have overseen both forms of domestic surveillance, said he didn’t go to the FISA court because he didn’t think he’d get permission. “So they know they’re on slippery territory here.”

Gingrich replied, “I believe the administration would be better off to go to the American people and change the law.”

“Wouldn’t they also have to change the Constitution? The Fourth Amendment – probable cause – you need a warrant.”

Gingrich then overtly admitted that in his view, the Fourth Amendment is expendable. “Look, Abraham Lincoln fought a civil war in which at one point he suspended habeas corpus because it was the price of sustaining the union. In the Second World War, we did the things we had to do to win and a US Supreme Court Justice said the constitution is not a suicide pact.”

Colmes persisted. “The Fourth Amendment says you have to have probable cause and you need a warrant. And there has to be probable cause. Now, I don’t know how you get around that unless you change the Fourth Amendment.”

Finally, Gingrich revealed that to him, the Fourth Amendment was little more than a legal technicality. “I suspect you can clearly define an ability to look which then leads to probable cause that gets you a warrant in real time if you think through how to do it. But there’s no requirement that says the United States has to lose a city to a nuclear attack or lose 5 million people to a biological attack because we can’t get the lawyers to talk to each other. And I think most Americans would agree that there’s a practical issue of national security that transcends the lawyers.”