This is a Fourth of July post, for which it is a bit too late, and this is a Fourth Amendment post, for which it is far too late.
Let me ask you: what sort of a government do you want? No. Scratch that. More basic. What sort of society do you want? Do you want a society where there are rules and laws and everyone, including you, has to abide by them? Of course. Do you want a society in which people are punished for transgressions of those laws? Most would say yes.
Well, who is to decide whether a person has broken that law? We have opted for the public prosecution system, where an appointed or selected individual or individuals take on the function of representing the interests of our collective society. it’s a fair system; designed in some part perhaps to minimize the possibility of individual vendettas.
But that system would perform that minimization role only if the agents of the collective were to exercise their individual authority and judgment in the pursuit of what is right and what is wrong and not just the chase of convictions – but that’s a story perhaps best left for another day.
So having established this system; having vested these enormous powers in our fellow citizens, do we wish to impose any checks on them? Do you have faith that these people perform their jobs in an admirable and honest manner? If so, why? Do you personally check on their performance? Is it measured to any standard for you? Or have you given then unfettered powers - carte blanche, so to speak. “If you do it in the name of Justice; your powers are limitless.”
Certainly, even the most Law & Order amongst you would argue that we can take a hands off approach to the daily machinery of the Justice system precisely because we have these rules in place: rules that not only govern our individual conduct in relation to one another – penal laws, for instance – but also how the Government must behave before it is allowed to take away one’s Liberty – that other ideal worthy of a capital letter.
So there is an interplay, most would agree, between Justice and Liberty. And most of you would point to those rules, those Constitutional technicalities as ensuring that the system is worthy of your continuing faith and disregard. We have the best Constitution in the world, and the best system in the world, ergo, everything must be operating as it should.
So would you like the Government to be able to enter your home, just to look around? What if the police officer you passed on the road flagged you over and wanted to look inside your car, just because? Certainly, most Red Blooded Americans would have a strong visceral reaction to that. Why? Perhaps because it’s enshrined in our Constitution. The Founders had the good sense to include, in very strong language, such a prohibition:
“One of the most potent grievances that led the colonists to declare independence 237 years ago was the practice of British officials conducting door-to-door, person-to-person ‘general’ searches,” IU Maurer School of Law Distinguished Professor Fred H. Cate said.
Because they knew and because they suffered. Because those who have the power, have power over us that don’t. Can you physically resist an armed officer entering your house to search because he feels like it? No, of course not. What stops them? The need for a warrant.
Why? Because we have these rules. The rules that say:
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.
“The People”. That’s you. And your mother and your sister and your babysitter and your neighbor down the street and your boss. And me.
It is a right that you and I have. To be secure from warrantless searches and seizures. And the warrants must be particular.
Because we don’t want witchhunts. We don’t want blanket searches of anyone who we decide is undesirable.
But apparently we’ve forgotten the lessons of the past. We’ve forgotten that this Government – any Government – has the tendency to oppress those who are not like them. We have forgotten that at one time, a large percentage of the human beings in this country weren’t considered human. We’ve forgotten that until very recently our very same federal government didn’t recognize the rights of our brothers and sisters to marry whom they wanted. We’ve forgotten that in the last century, it was illegal and punishable by jail. We’ve forgotten that the world went to war to prevent the persecution and oppression of the “other”.
We’ve forgotten that parts of the world, until recently, lived under a surveillance state. States that we, the United States, sought to end. States that had far less surveillance powers than we now do:
East Germany’s Stasi has long been considered the standard of police state surveillance during the Cold War years, a monitoring regime so vile and so intrusive that agents even noted when their subjects were overheard engaging in sexual intercourse.
Even Schmidt, 73, who headed one of the more infamous departments in the infamous Stasi, called himself appalled. The dark side to gathering such a broad, seemingly untargeted, amount of information is obvious, he said. “It is the height of naivete to think that once collected this information won’t be used,” he said. “This is the nature of secret government organizations. The only way to protect the people’s privacy is not to allow the government to collect their information in the first place.”
The reaction to Snowden is saddening. People are lining up to freely hand over their information to the Government. Is it because we’re desensitized? Or because we truly don’t understand that this cocoon of protection you think you have around you, this “other-ness” (I’m not those people, i.e. a criminal) is tenuous at best and imaginary at worst.
Ask yourself this: if PRISM is so useful, then why limit its use to “terrorism”? Make a difference to you now? What if your “metadata” is used to track what time you leave home, where you go, what time you come home and where you stopped for how long. What if it’s used to track your purchases online or your downloading of the latest single from a less than legitimate site? What if it’s used to figure out that you smoke marijuana recreationally? What if it’s used to monitor your speeds on national highways and send you tickets in the mail automatically? Where will it end?
Have you given the Government permission to do any of this? Would you? How quickly do you foresee yourself going from average citizen to criminal. And you know what happens to criminals, right? You’ve carried the pitchforks yourself.
The measure of a society is in how it treats its most vulnerable.
What does that mean. Have you ever thought about it? Today, you are in the majority and the majority cares about its rights. What happens tomorrow, when you are no longer in the majority and now your interests and rights are different than those in power? Will you acquiesce as easily as those you imposed yourself on?
Who will stand up for you? Why would anyone?
Compare and contrast this quote of Thomas Jefferson:
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.
with this from Dianne Feinstein, doyen of intelligence in the Senate:
“I feel I have an obligation to do everything I can to keep this country safe,” Feinstein told The New York Times. “So put that in your pipe and smoke it.”
Eloquent and telling. She’s telling you that she doesn’t care about your rights. That she has made the decision for you, that your Safety (another capital letter word) is more important than your Liberty.
And then, when that National Safety Threat doesn’t materialize – or it does but the intelligence is useless – and the Government is sitting on mountains of data about you, what makes you think it won’t go looking, just to see what’s there, because maybe, just maybe, the definition of “terrorism” isn’t what it used to be:
In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.
The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.
And by turning a blind eye, by not caring, you’re giving up the right to ever be invited to the table to discuss this. Your rights and protections are now in the hands of secret courts.
Quis custodiet ipsos custodes?
Who will guard the guards? You didn’t use to be like this. This was a country that cared, before “soft on crime” ruined our youth, our cities and our wallets.
Remember, too, the fight against the death penalty, and the days when the left was on the front lines to join most of the civilized world by doing away with it. Justices William Brennan and Thurgood Marshall and ultimately Harry Blackmun and John Paul Stevens, judicial heroes of the left, eventually refused even to consider the legal arguments in individual cases because time had proved again and irrefutably that the “machinery of death” could not be, and was not, administered justly. Can anyone credibly claim that this machinery is more just today? It is not. DNA exonerations in the triple digits should make us worry deeply about executing innocent people. And most defendants singled out for the death penalty don’t get the high-quality lawyers they need. But then came Willie Horton, and victims insisting they had rights too, and suddenly being for the rights of the accused and against capital punishment could get you labeled weak on crime, and that was political suicide.
I am reminded at this time of another quote, one that you may be familiar with:
Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”
A land for the downtrodden, for the oppressed, of second chances. A land unrecognizable today. Might as well replace that inscription with the more terse and apt: “I got mine, you can just fuck right off.”