With NSA, Odious General Warrant Makes a Comeback

In 21st century America, every American wants to be safe from terrorists. To that end, this paper reports that the National Security Agency has embarked upon two programs: The first collects sending and receiving phone numbers and the duration of the calls. The second, if the "leakers" are correct, gathers audio,video, email, photographic and Internet search usage from anyone using Microsoft, Google, Apple and Yahoo.

The goal of security is sound. But can a government that lies and stonewalls about Benghazi and the IRS scandal, and targets AP and Fox News reporters be trusted?

The Fourth Amendment to the U.S. Constitution was passed because our Founding Fathers feared encroachment by the new federal government upon their rights.

"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 issued, 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 amendment was meant to outlaw general warrants and writs of assistance by the British government in the days just before our Revolutionary War. A general warrant was a search/arrest warrant which did not particularly describe the place to be searched, and the persons or things tobe seized. A writ of assistance was a general warrant used in customs cases to find smuggled goods.

Charles Paxton was a Boston customs officer. In 1755, the Superior Court in Boston gave Paxton a writ of assistance that gave Paxton power "to board any boat or other vessel ... within said port... and there to search ...and ... go into any vaults, cellars, warehouses, shops or other places to search (for any undeclared) goods ... (that) are suspected ... to be concealed...."

Six years later, Paxton (and other customs officials)sought to renew their writs which had expired upon the death of George II.In January 1761, Massachusetts merchants challenged them. James Otis, Jr., a Boston attorney, argued on behalf of the merchants, that such writs violated common law principles. "The freedom of one's house was among the most essential branches of English liberty. ... Customs officials, acting under 'Writs of Assistance' may enter our houses when they please, break our locks, bars and everything in their way," he argued.

John Adams, who sat through the attorneys' arguments, wrote "Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born." For Adams, the writs of assistance were the first causes of the Revolutionary War.

The five judges in Paxton's case upheld the use of the writs of assistance. Our Fourth Amendment was written to overrule that holding. Now in 12 years since 9/11, in the name of security, Americans seem willing to surrender those rights, perhaps forever. Suddenly, the NSA appears to be operating under what can fairly be called general warrants issued by the FISA court.

In 1967's Katz v. U. S., the U. S. Supreme Court held that the Fourth Amendment protects people, not places, and that when "One who occupies (a phone booth), shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world."

In his concurring opinion,Justice Harlan said "an enclosed telephone booth is an area where ... a person has a constitutionally protected reasonable expectation of privacy."

But if phone calls, which then passed through phone lines were protected, why shouldn't our emails sent via the Internet be entitled to similar protection? It is one thing to record the numbers from which calls are made and received, or to look at an address on an envelope. It is hard to find an expectation of privacy in those things. But until these latest revelations, most of us have believed that we have a reasonable expectation of privacy for the contents of our letters, phone calls and emails unless a judge issues a warrant consistent with the Fourth Amendment requirements.

In his concurring opinion in Katz, Justice Douglas spells out the reasons:"Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved, they are not detached, disinterested and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws.

"The president and attorney general are properly interested parties, cast in the role of
adversary, in national security cases. ... I cannot agree that, where spies and saboteurs are involved, adequate protection of Fourth Amendment rights is assured when the president and attorney general assume both the position of adversary and prosecutor and disinterested, neutral magistrate."

If we can't trust the president or attorney general to be "detached," why should we trust the FBI or NSA? Yes, I want America secure. But I also want a Fourth Amendment that is not in tatters.

Our Fourth Amendment rights against unreasonable search and seizure are not something to be given up lightly without open public discussion and amendment of our Constitution. It took 700 years for our English forbears and the founding Americans to win and be guaranteed the rights specified in the Fourth Amendment. If Americans eschew their hard-won liberties, then what? Once relinquished, can our liberties ever be regained?

Posted Online:  June 23, 2013, 11:00 pm  - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea