Skip to comments.Right to Privacy Destined for Endangered List
Posted on 10/08/2006 4:02:36 PM PDT by Tolerance Sucks Rocks
The Fourth Amendment to our Constitution protects Americans against "unreasonable searches and seizures" and against warrants being issued without "probable cause" that they have done something wrong. While most Americans who might be familiar with this portion of our Bill of Rights probably consider its protections to apply only to criminals and therefore of little consequence to them, the Fourth Amendment actually provides vital protection to all Americans, not just "criminals."
In fact, its prefatory language makes this clear, explicitly providing that its goal is to assure that the "right of the people to be secure in their persons, houses, papers and effects." In short, the Fourth Amendment stands for the proposition that every American has a zone of privacytheir "persons, houses, papers and effects"into which the government may not intrude unless it has a good and articulable reason for doing so.
While electronic surveillance or eavesdropping was obviously unknown to our Founding Fathers when they crafted the Fourth Amendment, 20th-century court decisions have made clear that Americans' electronic communications are covered within the sphere of privacy protected by the Fourth Amendment's edict.
This principle undergirding the Fourth Amendment has withstood withering challenges by various American presidents over the decades. Especially in the second half of the 20th century, one president after anotherRepublican and Democrat alikesought to push the envelope of executive power by using the ever-more-intrusive tools of modern technology to gather information on and about the citizenry, and then use that information to convict, control or intimidate people.
Throughout this long battle to limit the power of the government and protect the privacy of the people, the federal courts have served as official referees. It has not always been a pretty sight, but our courts have generally stepped in when necessary and done the right thing, correctly interpreting the Fourth Amendment as it applies to executive branch action or legislative branch lawmaking to ensure the essential privacy principle embodied therein retains its meaning. In fact, in mid-August a federal court judge declared the administration's five-year-long program of warrantless eavesdropping by the National Security Agency to be unconstitutional.
Now, in large measure as a result of that decision, which infuriated the president, the legal mechanisms that have been available for the courts to hold successive presidents' lust for power in check are about to be dismantled.
The House of Representatives last week passed legislationand the Senate is poised to do likewise when it returns from its election recess for an always-dangerous lame-duck session that shatters the foundation of the Fourth Amendment as surely as if a keg of dynamite were lit beneath it and allowed to explode. In the name of "fighting terrorism" the Bush administration appears to have succeeded in convincing Congress that to succeed in the "Global War on Terror," the Fourth Amendment must not only yield, but be destroyed.
The legislation, ostensibly to authorize this president and future presidents to listen in on communications by al-Qaida terrorists and those in communication with them, sweeps far more broadly than its proponents would have the American people believe. Relying on broad and vague definitions and enumerations of powers, the legislation championed by the Bush administration and supported by its many champions in the Congress would, among other things:
Allow warrantless surveillance of virtually any international phone call and e-mail of American citizens without any evidence of conspiracy with al-Qaida or other terrorist entities.
Authorize the attorney general without court approval to order Internet service providers and other types of companies to give the NSA access to communications and equipment regarding information on its customers, without any proof that American customers whose communications are acquired are conspiring with terrorists.
Allow warrantless physical searches of Americans' homes for extended periods without any evidence presented to a court that the homeowner is conspiring with or connected to terrorists.
Define "agent of a foreign power" and "weapon of mass destruction" far more broadly than under current law, and far more broadly than necessary, so as to potentially justify warrantless surveillance on persons or companies that possess quantities of gunpowder or maintain information on the conduct of our country's "foreign affairs."
Taken as a whole, the powers thus sought by the administration, and which have already been given imprimatur by the House, would do irreparable damage to the underpinnings of the Fourth Amendment.
If signed into law, these measures would destroy the fundamental notion that American citizens enjoy a right to privacy in their homes, persons and businesses to be free from arbitrary government surveillance and searches. That may sound apocalyptic, but believe me, it is not. It is a fact.
Bob Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.
So the premise of this is that the President is evil and destroying the Constitution? And I'm being pinged to this...why?
"the Bush administration appears to have succeeded in convincing Congress that to succeed in the "Global War on Terror," the Fourth Amendment must not only yield, but be destroyed."
Is this new? I thought the War on Drugs already took care of things like that. Now that it's happening to conservatives, it's something new, I guess.
The Amendment states:
Amendment IV. 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.
It does not state:
Amendment IV. The right of the people to be secure in their persons, houses, papers, and effects, against searches and seizures, shall not be violated, and no Warrants shall issue.
"The devil is always in the details..."
Okay, then let me play the devil here...
I know I'm gonna get flamed here by people who don't see my point, and that's okay... but does anyone else see a schizophrenia when it comes to this whole "privacy rights" thing?
Privacy Rights are a sacred thing when you're talking about the Patriot Act, but are a bogus act of judicial activism when talking about Roe?
I mean, conservatives have to get this straight. On one hand, we talk about minimal government involvement in our lives, but then when something like Shivo comes along we plead for the SCOTUS to send in the Army. We talk about intrusive government when it comes to property rights, but then we raise holy hell when somone opens a nudie bar.
Yes, yes, I agree with conservatives on their points that I raised (above). However, when you invoke "privacy rights" to back OUR side, I can only shudder when I think that the same argument is used in Roe V Wade!!
The war on terror can be won very simply, by burying dead Islamic terrorists in pig's blood.
How about we just say it's okay to search mosques and people named Muhammed?
Unfortunately, I doubt very many of the congresscritters voting on this legislation, nor many of the people campaigning for or against it, are actually familiar with all the details in question. Of course, if any details are left up to regulatory agencies, that should be a red flag.
On the other hand, the Cory Maye case suggests the Fourth Amendment is practically a dead letter anyway.
Bob Barr is the ACLU's token "conservative." And I don't mean the "American Conservative Union." I'm talking 'bout the OTHER ACLU.
I only read this far and stopped because it occurred to me that if our constitution provides vital protection to criminals, then WTF? I think the founding fathers intended vital protection for law abiding citizens but not for criminals.
Roe v. Wade has little to do with privacy, and some of the follow-on decisions have nothing to do with any reasonable meaning of the word. Something like Lawrence v. Texas would be a better example; there, the Supreme Court was deliberately put in a tough situation and should have bent a few procedural rules slightly instead of being pressured into a wrong decision.
IMHO, the fundamental question in Lawrence, which should have been up to a jury to decide, was whether the conduct of the defendants was in any meaningful way worse than other conduct by other people of which the police were aware and did nothing. The proper thing for the Supreme Court to have done would have been to remand the case to jury trial with such instructions. I am well aware that it is highly irregular for the Supreme Court to mandate a remedy other than what petitioners request, but such a course of action would have been better than either letting the prosecution of Lawrence stand or acquitting him outright.
IMHO, many "crimes" should be defined in such a way that what is forbidden is performing the act in such a fashion that a reasonable person would expect that others may be bothered or offended by it. If an act is performed in such a way that nobody knows about it, there's no crime; if such an act is discovered (and causes offense) by a chain of events the actor could not have reasonably foreseen, there should also be no crime. The question for the jury would then be whether the actor should have reasonably foreseen the discovery of his action.
The Fourth Amendment protections apply to all free persons. Honoring the Fourth Amendment will sometimes increase the difficulty of catching crooks, but it will seldom pose an insurmountable obstacle to enforcement of reasonable laws. Unfortunately, the War on Drugs has been used to shred the Fourth Amendment almost beyond recognition.
Constitutional democracy has been dead for some time.
I'll give you that if you'll trade me for those "Click It Or Ticket" roadblocks.
Civil Libertarian Extremists concur with your version #2.
The legislation is facially too broad and the judiciary will in all likelihood find it so and strike it down as a transgression of the Fourth Amendment. The end result will be that, while the Congress and the White House can thump its respective chest and proclaim how tough each is and that, but for the judiciary's weak-kneed interference, the executive would be rooting out bad guys, the reality will be that their election based overreaching has delayed the accomplishment of that goal. Any evidence or conviction obtained by the use of such a impermissibly overly broad, warrantless intrusion will be set aside and the exact opposite of the desired end will result; all to look tough in an election year.
Best way to avoid a roadblock is to stay secure in your home looking at your papers, eh!
They are not terribly "civil", since those little modifications to the 4th Amendment would guarantee the rights of criminals to dispossess the poor and weak.
The composer of this opinion compost obviously has no concept of pin registers or how they work, let alone standing case law on the matter.
Such ignorance is a great threat to our Republic, ... wait, is Bob Barr REALLY that ignorant?
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