This article originally appears in The American Thinker
At what point does a citizen’s right to an expectation of privacy end and the compelling interest of government to protect us from disaster begin?
To those who pretend the question is an easy one – right or left – a pox on you. This issue is much too serious to have liberals using the New York Times as a weapon in their hysterical war on sanity. Nor do my friends on the right cover themselves in glory by being so dismissive of what, at the very least, is a troubling shift in policy regarding how far the government can sidle up to the line of wrongdoing without going over.
The issue is one of transcendent importance for the future of liberty in America. The potential for mischief making by the government as well as private citizens and companies is so great that if the revelations surrounding the NSA intercept program prove anything at all, it is that the law has failed to keep ahead of the rapid, almost magical improvements in the technology available to invade the sacred space that all free citizens should be able to rightly call their own.
How important is the right to be “let alone?” Here’s Justice Brandies in a famous dissent (Olmstead v. U.S., 277 U.S. 438, 478) declaring in 1928 that the writers of the US Constitution conferred…:
...the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
The key word in that statement is”unjustifiable.” When does the government have the right to violate a citizen’s Fourth Amendment rights?” After all, for a document that can at times be frustratingly vague, the Constitution gets very specific when talking about a citizen’s right to be “let alone:”
“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.”
What the Constitution has guaranteed is a private space – or a wall if you will – that the government is prevented from trespassing against except in “justifiable” circumstances. And even in those circumstances, the Constitution is extraordinarily specific about what the government can and can’t do. If the First Amendment was designed to be a sweeping guarantee of American liberty then certainly the Fourth Amendment serves a similar purpose as a guarantee of our privacy.
Clearly the framers of the Constitution didn’t believe you could have liberty without privacy. Which brings us to the present and the capabilities of government to violate our privacy in ways that the framers or Justice Brandies could never have imagined in their worst nightmares.
The American Thinker Editor Thomas Lifson dealt with one aspect of this explosion in the government’s technological capabilities for potentially violating our privacy in an article yesterday on Radio Frequency Identification (RFID) technology. This tracking technology is becoming more obtrusive as both businesses and government find new and novel ways to use it. Lifson asks the right questions:
Despite the technology’s apparent cost and control benefits for businesses and government, the use of RFID technology raises a plethora of important legal, ethical and privacy questions that as of today remain largely unanswered. For example, what legal rights do individual U.S. citizens have if they believe their privacy has been violated by an overzealous business or government agency? How will an already overburdened court system react to the almost certain influx of RFID-related cases?
Similar questions were asked a decade ago when, without much fanfare, the FBI increased their ability to wiretap citizen’s communications substantially. The Communications Assistance for Law Enforcement Act (CALEA) on its face, would seem to be a dangerous leap in the capability of government to spy on our private communications. CALEA mandated that the telephone companies aid wiretapping by installing remote wiretap ports onto their digital switches so that the switch traffic would be available for snooping by law enforcement. After CALEA passed, the FBI no longer had to go on-site with wiretapping equipment in order to tap a line—they could monitor and digitally process voice communications from the comfort of the home office.
But this is nothing compared to the truly frightening capabilities of the National Security Agency (NSA) to capture, monitor, and even listen to the most private and personal of communications initiated by American citizens. Relying on technology that is almost magical in its ability to gather massive amounts of electronic communications and sift through them for relevant intelligence, it would seem inevitable that, even though the NSA is precluded from using this technology to spy on American soil, communications involving completely innocent American citizens would be caught up in this digital dragnet.
Although the actual workings of the technology is a closely guarded secret, the program authorized by President Bush probably uses some kind of voice recognition technology as well as something even more revolutionary; a new way to organize the data collected so that networks can be identified and uncovered. To do this kind of work, a system capable of collecting and analyzing trillions (terabytes) of pieces of information at once would be necessary. The system would flag hundreds of electronic communications at a time which may be a practical reason why the Administration wished to finesse the Foreign Intelligence Surveillance Act (FISA). Even though warrants could have been issued retroactively, the massive number of intercepts may have made that a practical impossibility.
The above is speculation, of course, because no one really knows and, unless the we’ve all completely lost our senses, no one should know. For if our enemies ever learned how the system actually worked, they could take steps to neutralize it. Even the pitifully small amount of information that has come to light could have damaged our ability to track and thwart the designs of our enemies. And herein lies the great conundrum involving our liberty and our survival.
What good comes of insuring our survival at the expense of losing some of our liberty?
If one of our cities was destroyed by a nuclear weapon smuggled into the country by al Qaeda, I daresay the relatives of the dead would answer that question much differently than the arm chair civil libertarians who so blithely condemn the Administration’s actions in the aftermath of 9/11. There are even those who say that there is no choice to make, that our survival as a nation is not at stake at all therefore any argument that includes a loss of privacy rights as a way to head off an al Qaeda attack is setting up a straw man to justify oppression.
I don’t have much sympathy for that argument but I am troubled that our government has skirted so close to the line involving spying on innocent American citizens and may have in fact crossed it. Ultimately, it must come down to a question of responsibility. You and I are not responsible for the safety and security of the United States. The Constitution has vested that awesome responsibility in the office of the President. In the end, where you come down on this controversy depends on how much you trust the occupant of that office not to abuse his authority nor misuse the frightening power our technological prowess has bestowed upon his government to invade our most private and personal spaces.
For if in fact we are in a war for the survival of our republic – and our enemies themselves have made it abundantly clear that this is what the War on Terror is all about – we are in grave danger if we give in to the temptation to turn the issue of liberty versus security into a political club in order to beat one’s political opponent for acting dictatorially or just as bad, unpatriotically. The issue is too important for the kind of lazy generalities being tossed about regarding an absolutist position on civil liberties or aiding and abetting the enemy in a time of war. In the end, we must trust each other or perish.
This compact of trust between government and its citizens has been mangled almost beyond repair both by the actions of overzealous intelligence agencies as well as a cynicism born of nearly 4 decades of Presidential misconduct. It is one thing to have a healthy skepticism involving those in power. It is quite another to automatically assume that the occupant of the White House is an evil, power mad Big Brother who would use the capabilities of government snooping for nefarious purposes. Even President Nixon’s criminal spying on political opponents was justified in his own mind as a response to what he saw as a domestic insurrection. The fact that there were tens of thousands of Americans in the streets waving the flag of an enemy that was killing thousands of American soldiers in Southeast Asia while calling for the violent overthrow of the government justified in the Nixon inner circle’s own thoughts, almost any wrongdoing that the President and his aides could imagine.
There have been no accusations against this President that the NSA wiretapping program has targeted political opponents. Instead, there have been serious questions raised about innocent Americans being insecure in their communications with each other. In short, the protections guaranteed by the Fourth Amendment have been frayed around the edges by this intelligence gathering program not trampled willy nilly by an Administration hell bent on gathering unto itself dictatorial powers in order to quash dissent or secure political advantage.
And until evidence emerges to the contrary, is there any reason not to take the President of the United States at his word that the program targets foreign terrorists and not innocent Americans? At bottom, the trust we placed in Mr. Bush by re-electing him must have at its core a belief that he is doing his best to protect us while not violating our cherished rights. This is essentially what living in a democracy means. Anything else, and we might as well crown a king or anoint a dictator to protect us. That way, we would simply do as we’re told and not have to worry about trusting anyone.
10:10 am
I also believe that we should trust this President, in this matter. What I am most concerned about, is the fact that he will not be President forever, and we should hypothetically ask ourselves…Would we trust a Hillary Clinton (for example) with this same power, and expect it would not be used for political gain? Could we?
10:12 am
WW:
I probably should have made it a little clearer but the answer to your question has to be yes. Ultimately, there are just some things you have to trust the elected leader on and doing what’s best to protect us is numero uno.
11:45 am
The record of this President is one of misleading. We now know that he used information for starting a war that was unverifiable and presented as fact. He has also mangled the law before to suit his needs on torture. Leaked portions of the now defunct Patriot Act 2 had provisions to strip citizenship. I am now waiting for Bush and Company to introduce the New Improved US Constitution since this one is over 200 years old and irrelevant since 911, free speech gives comfort to the enemy. The founding fathers after all could not have anticipated terrorism and we want you to be safe.
1:10 pm
Jason, are you the Camp Slasher or the Halloween Slasher? I don’t remember which one was Jason, maybe both, probably both. To me the name Jason has come to mean a person who will slash things, in your case, the truth. You are an idiot.
MERRY CHRISTMAS AND HAPPY NEW YEAR
1:33 pm
Diamond:
You sir is in denial. Least I go on the page would fill of numerous examples of mischief. Abandon your shroud of naked obedience and delight in the vision and sound of truth before you.
And this: The Carnegie Endowment report offers a detailed examination of the way the administration officials distorted intelligence by ‘’the wholesale dropping of caveats, probabilities, and expressions of uncertainty present in intelligence assessments” from their public statements.
1:38 pm
Jason:
You sir is in denial. Least I go on the page would fill of…............what are you trying to type? Was there something in this collection of letters that I was to understand? Well I don’t, sorry, maybe your keyboard maker has put letters in positions contray to all others.
1:40 pm
D:
ROTFLMAO!
1:45 pm
de·ni·al
An unconscious defense mechanism characterized by refusal to acknowledge painful realities, thoughts, or feelings.
Rolls On The Floor Laughing My Ass Off.
2:18 pm
Please show me 100 innocent people who have been “victimized” by this survalence. Please show me 10. Please show me one!
This is the typical ACLU hysterical responce that does not really exist.
The American people need to be protected from terrorist and the ACLU and Democrats that are attempting to protect terrorists.
2:41 pm
A senior at UMass Dartmouth was visited by federal agents two months ago, after he requested a copy of Mao Tse-Tung’s tome on Communism called “The Little Red Book.”
Two history professors at UMass Dartmouth, Brian Glyn Williams and Robert Pontbriand, said the student told them he requested the book through the UMass Dartmouth library’s interlibrary loan program.
The student, who was completing a research paper on Communism for Professor Pontbriand’s class on fascism and totalitarianism, filled out a form for the request, leaving his name, address, phone number and Social Security number. He was later visited at his parents’ home in New Bedford by two agents of the Department of Homeland Security, the professors said.
3:45 pm
Rick,
Besides your calm and logical analysis I think you hit it on the head when you asked, “[I]s there any reason not to take the President of the United States at his word that the program targets foreign terrorists and not innocent Americans?†Somehow people against President Bush, who incidentally lost the last Presidential election, cannot stand to admit that their primary concern is that they have ascribed to him a pseudo-demonic persona and thus cannot answer that question in the affirmative. They had no problems with previously expressed presidential views on the subject – all in agreement with President Bush’s – but since they were Democrats they were trusted, which in itself is an irony of life when you see where their judgments led the nation. After 9/11 I gave up my far left liberalism and my deep prejudiced contempt for George W. Bush, I saw him in a new light as a decent, sincere, and principled man. Sometimes I think he is too much like a saint for putting up with the most disgusting politically motivated character attacks in recent history and responding to it so calmly. He needs to express a bit more outrage in my opinion.
Anyway, I look forward to your writings.
3:52 pm
Jason: I see that you are a man of two minds, one mind able to copy, letter for letter, articles penned by others, which you post no credit for and the other being unable to clearly type in a coherent manner your jumbled thoughts, or is it your jumbled typing that causes incoherent thoughts, maybe thinking is alien to you as is your keyboard when opining in your own letters.
If this isn’t the Daddy of all “run-on sentences” then I stand corrected.
4:27 pm
Carter and Clinton did the same things without all the rumblings (Drudge has current links up right now). Wonder why all the uproar now…rolling eyes. Massive BDS
6:22 pm
...Carter and Clinton did the same things..
So they suck too.
6:55 pm
Once again, a representative of the Bushhitler mob, finding himself befret of arguments, falls back on the “Bush lied” moan. How lame.
8:24 pm
Jason,
“A senior at UMass Dartmouth was visited by federal agents two months ago, after he requested a copy of Mao Tse-Tung’s tome on Communism called “The Little Red Book.—
I find it REALLY hard to believe that the LRB caused the Federal Agents grief since I, and most of myy friends,OWNED a copy of the Little Red Book in 1967 and suffered no ill effects.
By the way, I wouldn’t call it a tome, it was subtitled something along the lines of “The Quotes of Mao Tse Tung” and merely printed various quotes of Mao. Hardly a large or scholarly work…..ever read it?
8:44 pm
If Bush broke any law impeach him! Or is this just continuing the legislature, judicial and executive debate that began with Madison and Marbury and Marshall.
1:18 am
The little red book flap was a lie, by the way.
2:49 am
Submitted for Your Approval
First off… any spambots reading this should immediately go here, here, here, and here. Die spambots, die! And now… here are all the links submitted by members of the Watcher’s Council for this week’s vote. Council li…
3:08 am
The Council Has Spoken!
First off… any spambots reading this should immediately go here, here, here, and here. Die spambots, die! And now… the winning entries in the Watcher’s Council vote for this week are Above Thy Deep and Dreamless Sleep…
7:02 am
bactrim
4:58 pm
tegretol
12:26 am
This president raised his right hand and swore “to uphold the constituition of the United States”....I did too and also swore to obey the orders of the Commander and Chief…the “President”. For both of us the first part was the first part….the “Constititution of the United States”. The second part for me implied a trust in the integrety of that Person (or those persons that advise) that would send me into harms way…It didnt work then(thats one reason why the Foreign Intellegence Survalence Act of 1977 was enacted…because the executive branch got out of control “in order to protect us…but seemed to have a penchant for delving into the affairs of their political oppenents…imagine that today with good old Carl Rove….naaa?) and it’s worse now. Take this Presidents word? You have got to be kidding me…you think I was born yesterday…come to think of it I was. Keep the questions rolling…don’t quit. Oh hell…now THEY will monitor me…funny thing is…as Indiana Jones remarked “They are digging in the wrong place”. Some things never change.
8:25 pm
quit smoking cigarette
quit smoking for good