Columns » Ernest Dumas

Scrapping the Fourth Amendment


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When the hunt for scandal produces only flaps, it is hard to recognize it when you're handed the real thing.

After spending eight months trying to find someone in the Obama administration who acted traitorously in the attacks on the U.S. compound at Benghazi and then raking over the disclosure that agents in the IRS sometimes still carried out political agendas, Republicans got a long-needed assist from a private contractor with the National Security Agency named Edward J. Snowden. He gave the media troves of classified documents showing vast government surveillance of the communications of Americans at home and abroad and then fled to Hong Kong ahead of certain charges that he violated the Espionage Act and other laws.

The National Security Agency under Barack Obama had expanded on the work of George W. Bush and Dick Cheney and the openings in the Patriot Act and co-opted the personal electronic records held by communications and Internet companies. It did it to run down and thwart plots against the United States at home and abroad, and the president and his national security people have insisted that all the surveillance did exactly that. They can't tell us what and where because it's classified, you know.

The surveillance violates the Fourth Amendment to the Constitution, which says people and their "houses, papers and effects" are to be forever secure from the government, although in the age of technology and cross-border terrorism Congress and the courts have pretty much made its commands meaningless and the American people, by and large, have surrendered that right happily. Still, the president's approval ratings have slipped noticeably in the wake of Snowden's disclosure, a somewhat heartening sign.

The Fourth Amendment was written to thwart forever the kind of British acts that led to the American Revolution, the "general warrant" issued by the king, which directed general searches of people's homes and businesses to enforce the crown's needs for revenue and loyalty.

The universal surveillance of everyone's electronic communications (soon, will there be any other kind?) is the ultimate big government that was caricatured in novels like Brave New World, where the government knew what everyone was doing and saying. It is what you thought the tea partiers had in mind at their rallies and town-hall ravings, when they demanded that the government give them their freedoms back. They may have just meant the freedom to discriminate against certain kinds of people.

Instead, except for libertarians like Rand Paul, and presumably his papa, Ron, Republicans have been the biggest defenders of the president's and NSA's surveillance, if not necessarily of the president himself. Cheney said much of the surveillance program was developed in his office when he was vice president, and he called for Snowden to be tried as a traitor. And presumably executed. In Cheney's lexicon, a traitor is one who tells the American people the truth; a patriot is one who lies to them and even to the president, as he did often in the wake of 9/11.

Cheney was in the Nixon White House when it went after Daniel Ellsberg, a scholar for the Rand Corp., who leaked the Pentagon Papers, which revealed government deception to lead the country to war in Vietnam. Ellsberg was being tried for violating the Espionage Act but the judge halted the trial after discoveries that the Nixon administration had broken into the office of Ellsberg's psychiatrist to get records of his treatment and tapped his telephone without a warrant, in violation of the Fourth Amendment.

While we're at it, let's mention that as an aide to Nixon's successor, Gerald Ford, in 1975, Cheney recommended secret steps by the Justice Department and other facets of government to counter a New York Times story about the Navy tapping into Soviet undersea communications.

Like Snowden's revelations now, the American people had no right to know, even generally, what big parts of their government was doing.

As I said, the American people long ago got past the privacy thing, not only because of the fear bred by 9/11 and other crimes but because they have largely surrendered it already to credit-card, Internet and other companies. Government is going to develop a consuming need for your data, too, and you can imagine how some of it might be valid.

But the quest for the information and the use of it will not be spent on foiling terrorists. We may trust them to do that at the moment, but what is next? Bill Clinton was asked last week about whether Americans need some safeguards from abuse. Yes, he said, and the people running the secret programs need to be developing some protections to see that the government never uses the personal data mining for political, financial or personal advantage or punishment. We can be sure, can't we, that they will do that?

Clinton pointed out that the government couldn't get into the content of your communications without a warrant approved by the secret federal court set up to do that. That court is some fine protection. The chief justice selects them — nine are Republican judges (one in Little Rock), one a Democrat. Only the government gets to make its case, secretly, and we never know what the decisions were, the grounds, or the results. Figures are hard to come by, but as of the end of 2004, the FISA judges had given the government the warrants it wanted 18,761 times and rejected five. So, no need to worry.


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