What part of “Shall Not Be Violated” do they not understand? Oh, probably the same part as that part in the 2nd Amendment that says “Shall Not Be Infringed.”
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.
There is much angst and consternation and scrambling to right-justify the extraordinary measures taken by the Federal Government, primarily in the person of the National Security Agency, to collect information stealthily through the devices and platforms and services citizens use to communicate and socialize with one another, either directly or by obtaining them from the service providers.
The perennial question rears its ugly head once again in this debate – ‘Do you want to be free from government intrusion, or do you want to be safe?” Meaning do you want to go along with government surveillance and data collecting in hopes that the bad guys, the terrorists, will be brought to heel because of it.
We submit that is a good question for debate in a moot court or at whatever society debates these things, but the simple fact is, if you are a constitutionalist and you believe in what the words mean, and you apply those words to the modern era, it means that the government has intruded on not only your privacy, but your property – things that belong to you; YOUR devices and platforms.
Google, Apple, Verizon and all the rest have no more business sharing information about you than does your lawyer, or your doctor. Now, some argue that by using a public service, one has no expectation of privacy. That is false. All of the social media, personal communication and internet services are analogous to the US Postal Service. Hacking into them is a crime, as is tampering with the US Mail. And if there is any question of the Fourth Amendment’s provisions not applying to modern-day technology, note that the Amendment specifies that a specific warrant must be issued supported by probable cause, regardless of the items seized. In other words, just because clever Americans invented new ways of doing things, it doesn’t mean that the intent of the 4th Amendment is null and void. (That was for Andy McCarthy, in the highly unlikely event he reads this dispatch.)
All this is being broadcast and explained in the media venues as we speak, with more clarity and authority than we can offer. But the real takeaway from the whole episode should be this: A gargantuan, multi-faceted government enterprise, with near unlimited funds and technological resources at its disposal, able to obtain and compile and analyze the vast amounts of data being talked about here, on hundreds of millions of law abiding citizens, should be able to keep the bastards out of the country in the first place. And further, they had the data, they had the goods, they had probable cause and input from multiple sources, and they still failed to stop Major Hasan and the Tsarnev Brothers.
They didn’t stop them because they didn’t have the will to stop them. Major Hasan should have been in Leavenworth and the Tsarnev brothers, at a minimum, should have been deported. So when your government tells you they have to have these vital tools to stop terrorist attacks, understand that they have had beyond probable cause to intervene to stop attacks and have not done so. Hasan and the Tsarnev’s didn’t have to assert their 4th Amendment rights in order to keep the feds off their backs. The feds, in SOP politically correct mode, didn’t want to touch them with a ten-foot pole. And dozens are dead, maimed and disabled for life because of it.
There is no expiration date on the Constitution of the United States, or any one of its Articles or Amendments. Barack Obama saying “it’s the right thing to do”, or “We need to do this to keep the country safe” doesn’t override the Supreme Law of the Land. And a couple of Republicans echoing his sentiments, like Peter King and Mike Rogers, doesn’t cut it either. And a congressperson or administration spokesman testifying that there is an instance of a terror plot being foiled because of massive data mining is not a defense. A single good outcome, even if it could be verified, does not justify the means in a nation where The People are Sovereign.
When one considers all the consternation surrounding and following the Viet Nam War, and the legislation that followed, specifically the War Powers Act, one has to ask this simple question: Constitution aside for the moment, if the Commander in Chief and the head of the Executive Branch is prohibited by law from engaging those who explicitly engage in hostility against America and its citizens in an open ended, unlimited fashion, what earthly justification can there be for any agency of the US government to engage in open-ended, warrantless, unlimited duration espionage against law-abiding US citizens? The President cannot unilaterally commit US Forces to the defense of the United States beyond certain time and situational limits, but he can commit US agencies to unlimited seizure of private communications data belonging to US citizens? We beg to disagree.
One more thing – Some would argue that the existence of the FISA (Foreign Intelligence Surveillance Act) Court renders compliance with the 4th Amendment’s strictures. Rubbish. The 4th Amendment, as all the other Bill of Rights amendments, protects INDIVIDUALS. The notion of the existence of a special court to rubberstamp a blanket fishing expedition into the records of an entire class of people (Verizon customers, iPad owners, AOL subscribers….
Jews)) and thereby nullifying the concept of individual rights is an absurdity and those who wrote the law, or amended it in succeeding iterations over the years, would be disingenuous if they said any such thing was or is the intent of the law.
Finally, there is this: Without the Constitution and its carefully considered, considerably debated provisions, voted upon and ratified in multiple jurisdictions, the United States of America does not exist. Whatever is done in the name of “national security” has no purpose as far as the preservation of our nation is concerned if it does not preserve the reason for its being in the first place.
Crossposted at Grumpy Opinions