Gotta love the loopholes.

The FISA bill that the President will soon sign is a terrible idea. By protecting the telecom companies from civil lawsuits, it sends the clear message that the President of the United States is above the law. Considering that most of the big wigs at the Dept. of Justice sit at the pleasure of the President, it’s hard to say that he isn’t. But there is one argument against this bill that I’m not sure I buy.

I was watching Countdown via msnbc.com last night and one of the guests made the argument that the FISA bill shreads the 4th amendment. I’m not sure I agree. As a refresher, the 4th amendment is:

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.

As I understand it, the FISA bill legalizes and/or excuses the government spying on American citizens without a warrant. I haven’t read the bill, so I’m probably missing a lot of the details, but that is how it has been presented so that is what I will argue against.

The government listening in on your phone calls doesn’t violate the exact wording of the forth amendment. The spirit of it, heck yes, but the law is rarely concerned with the spirit. That’s the difference between Law and Justice. Verbal communication doesn’t fall under persons, houses, papers, or effects and the amendment only requires a warrant for those specific things. All four of those categories refer to physical objects, not information. “Persons” means the government can’t search your physical body or clothing. “Houses” is self explanatory. “Papers” refer to your personal records in an era when writing something down was the only way to record anything. “Effects” refer to your physical property such as the contents of your briefcase (In that era, this probably covered your slaves as well).

The big question is: Do spoken words fall under any of these categories? Houses: no. Person, not really because your words can’t be found by a physical search of your person. Papers, possibly, but the Administration’s argument will be that if it isn’t written down, it doesn’t count. Effects, that’s doubtful because you don’t own your words. Something I heard over and over again in school was how once something is said, it’s not private anymore. Under that logic, listening to someone’s phone call is not a search of their private records because words are definitively not private. (OK, yeah, I know that’s a load of rubbish, but that is what my generation was taught to believe in the post-columbine world.)

So the biggest sticker is in papers. If the government or their tele-toadies RECORD the call and play it back, then it becomes a “paper” under this amendment. So all they have to do is listen to the calls live and then prosecute under the 1st grader laws of evidence, “Teacher! Teacher! Johnny said a bad word!” (and yes, that’s the same Johnny who can’t read. What a little brat!) In the days of “You’re an enemy combatant because I said so. Off to Gitmo with ya!” this isn’t as crazy as it sounds.

It all comes down to the fact that we are using a 16th century rule book for a 21st century game. Therefore, the constitution ranks right up there with the Bible as a document that can be interpreted as just about anything. In today’s world, information is as tangible a commodity as bread or rice, something the founding fathers never could have imagined and hence did not plan for.

So the Bush administration is showing uncharacteristic intelligence by working their way around a constitutional loophole. That doesn’t change the fact that George W. Bush is a criminal and deserves to be hauled off to jail for the dozens of felonies he has, or has ordered, committed.