I tend to think of myself as generally reasonable, not alarmist, and not prone to hyperbole.
And I think if, as the government would have us believe, the goal of the terrorists is to undermine the United States of America, the terrorists might have won.
This was the founding idea of the United States of America:
When the government stops securing our basic rights, it cannot derive just power from the consent of the governed, and the political bands connecting the state are dissolved. At that point, “it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” (Declaration of Independence.)
The Fourth Amendment to the United States Constitution is not ambiguous. It describes a clear boundary or relationship between the individual citizen and the government, establishing the basic right that the government will not come intruding into your life, your things, your property, without a good, lawful reason.
As everyone knows, the first ten amendments (changes, additions) were added to get more voters to approve of the Constitution – the original document had nothing about individual rights and freedoms and a lot of people were not willing to go along with what was basically a system of government that did not recognize or guarantee basic individual rights. So to secure popular consent, ten add-ons were made, laying out the basic relations between the individual and the government.
The various ideas of what rights individuals should have were developed in the context of the particular historical period – the advancement of enlightenment modernity, with its republican/democracy political ideas, past its ancestor, feudal-mercantile monarchy. This is why people at the time felt the need for the specific right not to have house soldiers in peacetime – that’s what the king did, and they didn’t want that or a king. And they didn’t want a king or king-like government that could establish one religion as official or shut down the press and suppress political speech. They wanted guns to protect themselves against external and internal tyrants. They wanted due process of law – regularized procedures including jury trials. And they wanted to make sure the government could not seize or search them without a good, lawful reason. In some ways, this last is the most basic right. The six rights described in the First and Second Amendments are about what you can go out and do in the public/political sphere. The Fourth is about what the government CANNOT do to you – it cannot invade your home, seize your property, or arrest you without a good, lawful reason:
“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 places to be searched, and the persons or things to be seized.”
That’s it. That’s the basic right as defined by the Fourth Amendment.
The second part can use a bit of interpretation:
searching and/or seizing must be reasonable; reasonableness is ensured by obtaining a warrant from a judicial official; a valid warrant must be based on a sworn statement that lays out “probable cause,” a good reason – based on stated facts and law – to arrest a person and/or search and seize hir property; and if the warrant is to search for something, it must be specific about what is to be looked for and where.
Over the years, the Supreme Court has interpreted the Fourth Amendment to say police and other officials of government can arrest, search, and seize without a warrant in a variety of circumstances that the Court found to not be “unreasonable.” In other words, if the search and arrest is of one of these particular types (see next paragraph), it is not an unreasonable search and seizure and is therefore okay under the Constitution.
Circumstances where searches and seizures can be reasonable without getting a warrant include: the arrest of a person based on a reasonable belief a crime has been or is being committed and that person X is doing it; emergency circumstances where immediate action appears reasonably necessary; and detaining people acting suspiciously and patting them down for weapons. Note, though, that in most circumstances, probable cause (a reasonable, fact-based belief a crime has occurred and person X is involved) is still required for a warrantless search and seizure. But in these special circumstances, the official on the scene (typically the police) gets to make the call on probable cause, rather than a judge. Basically, the exceptions state that the government does not need to get a warrant to search and seize if events are unfolding too quickly to get a warrant, but there is a legitimate reason to search or seize someone or something right away. Otherwise, the Constitution requires, as a basic right of citizenship and limitation of governmental power over our lives, that arrests, searches, and seizures be conducted only after getting a lawful warrant.
Here, finally, is my point.
If, as many people believe and the government has only vaguely denied, the government is “data mining” or “keyword searching” large numbers of emails, if our government is routinely tracking who we talk to, when, and for how long, then our government is routinely violating our basic rights and has in effect broken the social contract defining the Untied States of America. (And yet, in the midst of this Constitutional/national-existential crisis, the establishment upper middle class and the media/public sphere they dominate are calm, riding tranquilly on the surface of the dark sea of corporate accumulation.)
Under any reasonable interpretation, when the Fourth Amendment protects against unreasonable searches and seizures of “persons, houses, papers, and effects,” it is protecting things like phone calls and email messages. The “papers and effects” of 1789 were letters, communications, and documents – personal, financial, commercial, whatever. We have more kinds of “papers and effects” now – email is surely one of them – and therefore the government cannot lawfully search our email, under the Constitution, without either getting a warrant based on probable cause, or coming upon exigent circumstances requiring immediate actions and a reasonable belief the sender has or is committing a crime and searching the email will turn up evidence of this crime. Under this simple analysis, “data mining” or keyword searching our email violates the Constitution. Only the better-paid apologists for authoritarianism would try to argue keyword searching is not “searching.” IT IS; keyword searching is searching. And if they are keyword searching massive amounts of email, they are “searching” massive amounts of email. And unless they get a warrant based on probable cause, or have specific reasons to believe that the searched emails contain evidence of a crime that needs to be seized immediately, they are violating our basic constitutional right to be free of government intrusion without a good reason.
The case asserting that the government compiling records of phone calls (their existence, not their content) is an unlawful search and seizure is less obvious, but ultimately reasonable: if the government is surveilling and compiling information on a person, it is in effect searching that person.
The Merriam-Webster Online Dictionary defines the verb “search” as, among other things,
— to look into or over carefully or thoroughly in an effort to find or discover something . . .
— to examine in seeking something;
— to look through or explore by inspecting possible places of concealment or investigating suspicious circumstances; . . .
— CHECK; especially to examine a public record or register for information about
— to examine for articles concealed on the person
— to look at as if to discover or penetrate intention or nature
— to uncover, find, or come to know by inquiry or scrutiny.
On these definitions, it is reasonable for us to interpret our Fourth Amendment right to be free of unreasonable searches and seizures to preclude the government tracking our phone calls “in an effort to find or discover something.” If the government is tracking our phone calls, it is reasonable for us as citizens to assert that they are violating our basic Constitutional rights to be free of unreasonable government intrusion, and are therefore threatening to undo the bonds of rights and responsibilities tying us together into a nation.
Thus, at this point,
WE ARE IN A CONSTITUTIONAL CRISIS.
The president asserts the nowhere-in-the-Constitution right to ignore the Constitution he is elected and sworn to uphold,
and the Congress and Courts and “free press” that are supposed to ensure we don’t revert to a monarchical dictatorship of absolute power won’t even acknowledge there is a crisis!
I hope it’s not the case, but it’s becoming plausible to believe that as long as the expansion of the economy ensures the rich get richer, the establishment class doesn’t care about basic democratic rights and is willing to go along with the authoritarian drift of our government. And as long as they control the media/public sphere, the crisis will be covered up by whitewashed news and flashy diversions. But that does not mean the rest of us have to accept this.
I guess we’re supposed to hope (yet again) that Democrats will get elected and save our republic from the predatory corporate-executive power that is Bush Inc. and the ruling Establishment overclass.
Maybe it’ll happen. I HOPE it happens…
But I think we need to begin formulating alternative approaches to this crisis, approaches off the map of consensus perception, strategies developed by citizens taking democratic action to ensure any government we are to be governed by is just. All indications, both plain and those obscured by secrecy, are that the current government we are subject to is not just. The crisis is now. America is on the brink. What will we, as people who believe in democracy and justice, do?
