Breaking and Entering

We Dems expected President George Bush and Vice President Dick Cheney to offend our civil liberties.

We didn’t expect President Barack Obama, the constitutional law professor, to go back on his campaign promise to make a course correction to cure the over-reaching of the Bush Administration.

We were foolish to expect better.

Without regard to partisan coloration, our public officials and our government just can’t stop poking their noses into our private papers and communications.

The Fourth Amendment, by which we are purportedly protected, guaranteed we’d be secure” in our “persons, houses, papers and effects, against unreasonable searches and seizures.”

This guarantee has been rendered almost meaningless by the actions of our government from the federal to the county level.  Applications to search and seize are routinely approved by magistrates and judges.  The basis for the government’s searches are often kept secret.

In a recent argument in Florida, when challenging the government’s right to hide what it told a federal Magistrate to get a search warrant for my client’s offices, a federal judge asked where the constitution says the “victim” of a suspicion-less search, or any search for that matter, has any right to see the affidavit.

The unstated presumption is that we should trust the government prosecutor to get it right and the Magistrate to protect our rights.  So it’s therefore okay to keep the person who was searched, who has the greatest interest in whether s/he was violated or not, to remain in the dark as to how or why this was justified.  There is a correlative right under the First Amendment to have a right of access to government papers under the theory that sunlight is a disinfectant against a government’s bad practices.

Our magistrates and judges are plainly too compliant in conforming to the government’s demands and don’t know or care or have the courage to make the arguments that the person being searched would make for himself.  They are therefore not protecting us from the government rummaging through our persons, houses, papers and effects with abandon.

The Supreme Court, over Associate Justice Antonin Scalia’s Objections, in a recent 5-4 decision, ruled our personal DNA is public property.  The Majority said, the reason was to identify the suspect.

Justice Scalia objected that reasoning “taxes the credulity of the credulous.”   Justice Scalia explained the arresting officers knew they had the right person, and the state law says the DNA’s for investigative purposes.  Justice Scalia said the seizure of DNA was a “suspicion-less” search, because it was used to investigate something else that the arrestee may have done but for which the government had not even any “suspicion” of wrongdoing at the moment it was taking his DNA.

Under the wrongly named Patriot Act (the Benedict Arnold Act would have been more accurate), the government is doing the same thing, investigating without any particular suspicion, invading our online and telephone associations – and when they choose to do so, diving further into the content of these communications – without so much as a “pardon me,” and they are telling us they are doing it for our own good.  Sorry.  No sale.

The Director of National Intelligence, James Clapper, and yes, that’s really his name, denied that the PRISM program, the name they’ve chosen to invade our privacy rights, was a data mining exercise.  Really?

The government is looking at billions and billions of bytes of information and they want us to believe that they are not data mining.  Even if they had some eye-shaded Evelyn Wood speed reader reading this stuff in hard copy, s/he would have to look for key words, having no particular suspicion of wrongdoing, and that’s data mining.

Shame on Congress for defending or remaining indifferent to this gross invasion of our basic constitutional rights!

Shame on our Chief Executive for showing no more restraint than his predecessor did.

The Government’s pretext is they want us “secure.”

Well we want to be “secure” from our government as the Constitution intended by the Fourth Amendment.

18 thoughts on “Breaking and Entering

  1. Elder Berry

    Most progressive/moderate Dems of my acquaintance are outraged over this AP/PRISM mess, Barbara Munsey. They are furious and disgusted over most of the Bush policies/programs Obama has chosen to continue (Guantanamo, drones, etc.). They realize that the Republican-led House is unlikely to pass any curtailment of these programs even though Obama is now running them (and Republicans will try to attack Obama on that basis yet preserve the programs), so they know the only recourse will be the Supremes. In any case activist Dems are not happy and certainly not Obama cheerleaders on this.

    So I don’t get your point. Supporting Cuccinelli, Jackson, etc. must be addling your brain even more than is usual.

  2. Barbara Munsey

    nice projection, talking point folks (in between projecting that others use…talking points–rotfl)

    Funny how the Ds–and the President–were all over surveillance being so very fraught BEFORE the most transparentest ever in history admin got in, and promptly escalated everything they used to preach against (and hid what they were doing, for full “transparency”)

  3. Elder Berry

    That phrase “government gone wild” is a bit of a stretch given the evidence you cite, Barbara Munsey.

    These has been no evidence at all of any government overreach regarding Benghazi and the State Department. (I presumed when you said State you meant Benghazi?)

    Perhaps re the IRS you missed Rep. Cummings release of the Congressional committee testimony that proved that Rep. Issa’s fishing expedition on the IRS issue was just that, a fishing expedition?

    Rep. Issa refused to release the transcript of the testimony of the local Ohio IRS official (a conservative Republican by the way) who ordered the program and the official (his underling) who carried it out, both completely without any WH input or knowledge.

    So Rep. Cummings, ranking minority member on the committee, after waiting quite some time, got sick of Rep. Issa’s continued false and baseless scandalmongering and released the transcript himself.

    Read it. There is no IRS scandal. There was a simple error of judgement made in creating a means to carry out a legitimate IRS function by a local official who happens himself to be a conservative Republican.

    As for the PRISM program it raises a flag. Clearly there has been woefully insufficient oversight and to me that just is salt in the wound because I think the program is bad, bad, bad. Two administrations have carried it out now but neither one has adequately justified it to my satisfaction. I’d like to see the Supremes weigh in before it goes any further, myself. They are the ones who are supposed to tell us if and when the other branches overreach. They are part of the government too, you know.

  4. Matthew Osborn

    Sorry Barbara – I didn’t realize that you were circling your wagon around the GOP “let’s focus as much as possible on the scandals that we’re promoting” strategy. You forgot to add Benghazi.

    Yes…Jeff Merkley (D – CYA’ville) claims he was never briefed. Of course, he didn’t mention that he also failed to attend the briefing in question.

  5. Barbara Munsey

    p.s., mosborn, even Democrats in Congress have said on the record that they were NOT briefed on what some of the programs have become.

  6. Barbara Munsey

    And more than metadata has been collected. Add in the targeting of political opponents by the IRS, the State Department irregularities, etc and we seem to have government gone wild.

  7. Elder Berry

    Matthew, I agree that it (recording the metadata) is legal, just as drones are legal. Meaning legal under laws passed by the Congress. However, I do not agree that it is either right or Constitutional, because not all laws passed accord with the Constitution.

    President Obama as a constitutional scholar should know better, and it does not speak well of him that he’s allowing it to go on. It may be “working” for him, but it’s still wrong. The Constitution specifically forbids the government from casting such wide net.

    The PATRIOT Act was wrong, is wrong and we need to be done with it. We need to be done with perpetual war against undefined enemies. Continued, it’s likely to destroy us.

    Agree, that Barbara Munsey and I on the same side is likely to stop the earth spinning or something.

  8. Matthew Osborn

    Barbara – I may have missed the “documented abuse” bombshell. This is a federal program designed to collect meta-data on phone calls, which collected meta-data on phone calls (legally, after being cleared by the courts and after briefing US legislatures multiple times).

    Unless you’re saying that recording meta-data from phone calls is NOT covered under the Patriot Act?

  9. Barbara Munsey

    mosborn, it is a huge leap to go from the documented abuse of said surveillance to “having to worry about vaccines”–sorry, but straw diversion.

    Stop the presses, elderberry is actually right. Although falling short of admitting that targeted abuse has happened under the current admin in both its terms, the general points made are sound–we have certain freedoms, and we are already well on the slippery slope.

  10. Matthew Osborn

    It’s absolutely fair to be suspicious of the vast power that our government has, but if you fundamentally think that our gov’t is out to get you, don’t you have to worry about all kinds of other things? Like drones? Secret HPV vaccines in our water supply?

    This program (as I understand it) has been around for nearly a decade, was transparently (and routinely) discussed with Congress, and was approved by the exact courts that were intended to provide oversight of these types of programs. And this isn’t our gov’t using wiretaps on your phone, this is Verizon/AT&T/Sprint/etc reporting data to the gov’t….a bunch of 1s and 0s.

    So it’s a HUGE leap to go from the passing of those details to “listening in to actual calls”. Not sure that slope is really all that slippery. They’re not even the same slope.

    Clearly, the potential for abuse is there. I get that. If Stalin or Hannibal Lecter were in the White House, I would be much more concerned. Although I’d be concerned about that reality regardless.

  11. Elder Berry

    Matthew, as I see it, it’s a slippery slope. Our Constitution not only guarantees us free speech, it gives us freedom to assemble. Think of where this goes if the wrong people get the power to figure out who you are calling when, who you are meeting where and when, and then they decide they just don’t like you and would rather you were imprisoned and one of your contacts has a shady history that could be exploited to reel you in. And that ignores that if they collect the metadata, then they sure COULD be listening in to actual calls.

    I listened to President Obama talk about how this “can’t” be used against US citizens in the US, and what I heard really (with some careful parsing in there of the word “can’t”) was him saying not that it was impossible for it to be used against US citizens in the US, but that of course he and his people would never think of using it against US citizens in the US, because that would be wrong (and of course illegal). Well, sad to say, some wrong and illegal things HAVE happened in the past and will in the future. Illegal and wrong things done by our government under either party. And whoever it is you do or don’t trust, there has to be someone who you would not want to HAVE to trust not to do something wrong and illegal, something that violated your rights. Stalin for example, if Stalin were in the WH, he might violate your rights if he had that power. Or Hannibal Lecter, if he came out ahead in the Electoral College some year.

    So liking or not liking Obama or Bush is kind of irrelevant on this domestic surveillance issue, it is that power that we really don’t think anyone should have. Secret warrants make hiding a slide down the slippery slope too easy.

  12. Hillsboro

    Matthew, I’m with you in concept, but I just can’t trust the government to properly safeguard this data.

    How many other Snowdens are out there, willing to sell your call records to the highest bidder — be it a business competitor, political opposition researcher, divorce attorney, etc.?

  13. Joe Budzinski

    John, thank you for the links – I had no idea you had either of these side projects going! While I know we are on the opposite side of some issues I appreciate your knack for historical writing. And assume there is a book, at least in the back of your mind. I will make both sites regular stops.

  14. Matthew Osborn

    I don’t get it. Why do I care if the gov’t knows that I made a phone call to my wife yesterday at 2:04 from Evergreen Mills Rd that last for 9 minutes?

    John – I’ll assume that you do NOT use any social media sites, have no apps downloaded on your phone (and have location sharing proactively turned off), and clear your cookies (including flash cookies) before you log off your computer after every use.

    The uproar about the NSA doing it’s job strikes me as about as genuine as Wayne LaPierre’s blathering about the gov’t coming to get his guns.

  15. Joe Budzinski

    I am sorry you perceive yourself as among the intellectually dishonest. I found this post to be excellent and it makes me want to read more from the author.

  16. Pariahdog

    Let’s not forget that the Patriot Act, the PRISM project and all the invasive “security” procedures started under President George W. Bush. General Alexander, who heads up the NSA, was Donald Rumsfeld’s pick, and President Obama is simply providing “continuity” to existing programs that the “honest” Right continues to fund without scrutiny.

    Why don’t we drop the Left/Right labels. It gets so tiresome to write an opinion only to be labeled and backhandedly insulted.

  17. Joe Budzinski

    Intellectual honesty seems a rare commodity lately on the left. Thank you, Counselor, well stated.

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