The words in the title of this post are the opening words of the Fourth Amendment to the U.S. Constitution. The whole amendment
reads:
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.
With the passage of the recent Foreign Intelligence Surveillance Act (FISA) amendment, Congress took a major step towards making our Fourth Amendment obsolete. The only thing that could save it now is a U.S. Supreme Court decision.
The ACLU, along with many other organizations concerned about our Constitution,
has said that the FISA amendment will allow:
mass, untargeted surveillance of all communications coming into and out of the U.S., without any individualized review…. Permits only minimal court oversight… Even if the application is denied by the court, the govt. has the authority to wiretap through the entire appeals process. Ensures the dismissal of all cases pending against the telecommunication companies … over the last 7 years
Clearly, there is little or no protection against “unreasonable searches and seizures” in this bill. If our government can do this, then what aspects of our privacy
can’t it invade?
Most Americans are against the substance of this bill, as indicated by
polls that show 63% of Americans against (55% strongly against) wiretapping without a warrant and 57% against retroactive immunity for telecom companies who have violated our Constitutional rights. Nevertheless, there is not sufficient outrage over the passage of this bill by Congress. Many or most Americans probably see the extraordinary powers granted the Bush administration by this bill as something that will affect mostly those who “have something to hide”. They should give a lot more thought to how necessary our Fourth Amendment is to our democracy and our freedom.
The right to privacy – McSurely v. McClellanThe purpose of our Fourth Amendment in protecting our privacy is illustrated by Ellen Alderman and Caroline Kennedy in their book, “
In Our Defense – The Bill of Rights in Action”, in which they describe the
McSurely v. McClellan case.
Alan and Margaret McSurely were a young activist couple who lived in Pike County, Kentucky, in 1967. Their nightmare began when their landlord observed some materials in their rented apartment that he believed violated Kentucky’s sedition law. The landlord later described at trial what incited his suspicions:
I saw a number of photos of blacks and whites mixed… literature that you see from these radicals throughout the United States that had the marches… I seen some of the literature on that (Selma) march they had down South… I thought it was a Communist-based deal.
So the landlord called the sheriff, who obtained a warrant and came to the McSurely’s apartment to investigate. The sheriff and his deputies ransacked the McSurely apartment to collect their evidence. But instead of confining their collection of evidence to the focus of the warrant, they confiscated every piece of written material they found in the apartment, including a personal diary and several love letters, some which involved a famous personage, from Margaret’s past.
The love letters and diary eventually found their way to Congress, for reasons entirely unrelated to the original case. The authors go into much detail regarding the long protracted pain and embarrassment that the McSurelys underwent as a result of their private lives being opened to Congress and the public. Their possessions were eventually returned to them, but then subpoenaed by Congress, including the diary and love letters. Unable to believe that Congress had any legitimate use for those documents, and unwilling to submit themselves to any further embarrassment, the McSurelys destroyed their personal documents and were subsequently held in contempt of Congress.
To make a long story short, the McSurelys eventually sued those responsible for their long ordeal, and the success of their suit depended upon showing that their Fourth Amendment rights had been violated. Here is an excerpt from the D.C. Circuit Court of Appeals, which ruled in the McSurelys’ favor, and which explains one of the major reasons that we need a Fourth Amendment:
It will be enough if our opinion finally ends this sorry chapter of investigative excess. The McSurelys cannot be made whole, nor can they be vindicated. Those parts of the district court’s judgment that we uphold today can only stand as a small reaffirmation of the proposition that there are bounds to the interference that citizens must tolerate from the agents of their government – even when such agents… claim official purpose to their conduct.
J. Edgar Hoover’s massive abuse of governmental powersNote the last part of the D.C. Circuit Court of Appeals’ decision quoted above: “… even when such agents claim official purpose to their conduct”. Well, of course. Government officials will ALWAYS claim official purpose to their conduct when undertaken for nefarious purposes.
J. Edgar Hoover’s
life and career illustrate perhaps the best known example in U.S. history of long time gross abuse of our Fourth Amendment. Hoover became Director of the FBI in 1924. Forty eight years later he died, while holding the same position. Along the way there were several presidents and Attorney Generals who would have loved to see him leave office. We may never know precisely how he was able to hold onto power for so long, often working under men who had little regard for him. A reasonable guess would be that he kept his position for 48 years in the same manner that George W. Bush and Dick Cheney have been able thus far to avoid being impeached.
Some of the highlights of Hoover’s career are summarized on the back cover of the book “J. Edgar Hoover –
The Man and the Secrets”, by Curt Gentry:
To Washington Insiders, he was the supreme Untouchable, a man prepared to use illegal wiretaps and hidden mikes to destroy anyone who opposed him. Fifteen years in the writing, and based on more than 300 interviews and 100,000 pages of previously classified documents, “J. Edgar Hoover” is the definitive portrait of the shadowy and corrupt man who held virtually unchecked power for almost fifty years…
This devastatingly detailed biography chronicles the… reign of terror that made the FBI the closest thing America had to a Gestapo… Hoover… intimidated every president from FDR to Nixon… Hoover helped create McCarthyism, blackmailed the Kennedy brothers, influenced the Supreme Court, obstructed the civil rights movement, instituted a burglary school for FBI agents, and sabotaged the Warren Commission’s investigation of the assassination of JFK… J. Edgar Hoover literally changed the course of history with the files known in the Justice Department as “twelve drawers full of political cancer.”
The following excerpt gives one clue to how he was able to hold onto power for so long:
Favored politicians were warned who their opponents would be… and what skeletons might be hidden in their closets. In some cases, they were even elected with the FBI’s help. Among Hoovers’ Special Correspondents list were radio and TV network presidents; financiers; clerics; congressmen (by the dozens); Supreme Court Justices…
Regarding Hoover’s hostility to Civil Rights and his knowledge of the movement:
In the
bloodbath of May 14 (1961)… one KKK leader stood out… Hoover’s chief paid informer working undercover in the KKK, was never charged with crimes, nor was he ever restrained… Hoover had known beforehand that the Klan had planned the ambush…
Victimless crimes are not
specifically mentioned in our Constitution. Yet, it seems to me that they are intimately related to abuses of our Fourth Amendment. For one thing, warrantless searches and seizures have often been used to obtain evidence of victimless crimes. Secondly, I believe it is fair to say that warrantless searches and seizures and victimless crime laws are often pursued for the same reasons: as a means of wielding political power over selected portions of our population. Furthermore, a victimless crime law seems inconsistent with the idea of “The right of the people to be secure in their persons…”
In fact, a recent US Supreme Court decision,
Lawrence v. Texas, was argued partially on this basis. The case involved a Texas law that made consensual sex between homosexuals, even within the privacy of their own homes, a crime. The Supreme Court ruled against the state, striking down that law. It is not clear to me whether the Fourth amendment was part of that decision, but the plaintiff did pursue the case based in part upon Fourth Amendment issues,
introducing arguments against victimless crimes:
Liberty cannot survive if the legislature demands that people behave in certain ways in their private lives based on majority opinions about what is good or moral…And of course, the Founders believed wholeheartedly that majorities had no right to impose their beliefs on minorities. In Federalist 10, Madison articulated his concern…
Whenever and wherever victimless crimes are prosecuted and punished, the opportunity for arbitrary enforcement of the law based on racism, classism or other nefarious factors is magnified tremendously. Let’s consider some of the ways in which victimless crime laws have been abused in our country:
Drug possession According to a December 2006 U.S.
Justice Department report, there were 2.2 million people incarcerated in U.S. prisons or jails, representing a 33 year continuous rise in the U.S. prison population. The U.S. incarceration rate of 737 per 100,000 residents is now the highest rate in the world. Russia is a distant second, with 611 per 100,000 residents, and the highest rate in Europe is England/Wales, at 148 per 100,000 residents. The United States, with only 5 % of the world’s population, holds one quarter of the prison population of the world within its borders. Of the total U.S. prison population in 2004, more than one quarter,
530,000, were imprisoned for drug offenses, and almost a tenth of these were for marijuana only. And many of those are for mere possession, rather than manufacturing or selling. For example, of 700,000 marijuana arrests in 1997, 87% were for mere possession, and 41% of those incarcerated for a marijuana offense are incarcerated for possession only. Arrests for marijuana
possession in 2004 were more numerous than arrests for all violent crimes combined. Our extremely high incarceration rate is at least partially explained by the fact that most non-violent first time offenders guilty of drug possession today in the United States get a
mandatory minimum sentence of 5 years with no parole, or 10 years with no parole if a large quantity of drugs is involved.
The racial and class disparities in the United States for imprisonment for drug offenses are similar to the racial and class disparities seen in many other areas of U.S. society. Though the
Federal Household Survey shows that there are five times as many non-Hispanic white illegal drug users as black users, blacks constitute a
highly disproportionate percent of the population arrested for (37%) or serving time for (42% of those in federal prisons and 58% of those in state prisons) drug violations.
Adding to the damage done to individuals is the damage that these laws do to families, thus creating a vicious cycle. It is likely that the
major reason for single parent households in our country today is the huge number of imprisoned men.
Here is
one example of how government intrudes on the lives of innocent people:
US Army veteran Steven Tuck was lying in a Canadian hospital bed. He fled to Canada after his plants were raided in California by DEA agents. He smoked marijuana to alleviate chronic pain from a 1987 parachuting accident.
Canadian authorities arrested him on his gurney, drove him to the border, and delivered him to US agents, and he then spent five days in jail – all with a catheter still attached to his penis. He was offered no medical treatment during his stay in the hospital, and his lawyer, Doug Hiatt, said, “This is totally inhumane. He’s been tortured for days for no reason.”
Possession of kiddie pornClearly it is proper for the state to prosecute child abuse, including the use of children in pornography. However, criminalizing the mere
possession of computerized images of child pornography, when there is no evidence that they were obtained through purchase or any involvement in the kiddie porn industry, is highly susceptible to abuse.
Not very long ago I submitted my computer to a computer place called Restronics, to check it for damages following a fire in my home. Since I had to live outside of my home for several months, Restronics had possession of my computer for all that time. The first day after the computer was returned to me I found that it contained a substantial amount of kiddie porn. I was fortunate that I wasn’t arrested for that.
My nephew, who submitted his computer to the same shop for the same reason, wasn’t so fortunate. Someone at Restronics called the police to report kiddie porn on his computer after it was in their possession for seven months. My nephew was subsequently arrested and indicted for possession of kiddie porn. The prosecutor didn’t appear to be the slightest bit interested in the fact that kiddie porn had been downloaded onto
my computer after being in the possession of the same company during the same time period. She continued to pursue the case vigorously, necessitating my nephew to shell out thousands of dollars in his defense, and causing him months of severe mental anguish.
Bob Chatelle,
commenting upon the proliferation of kiddie porn possession laws in our country, notes that “There'd never been that much child pornography to begin with, since there aren't many pedophiles around to create demand.” Able to garner only three convictions in 1983, Chatelle explains how the feds attempted to improve their record:
New tactics were needed in the government's war against filth – such as sting operations. Federal agents targeted law-abiding citizens and tried their damnedest to induce them to buy child pornography… They identified potential victims in a number of ways, such as by seizing the records of adult book stores and publishing houses to find out who purchased legal materials… The prospective victims were sent mailings… barraged with offers to buy all sorts of books and magazines without being warned that any of the material might be illegal. Whenever one of these unfortunate dupes took the bait, of course, they were promptly arrested. Their homes were searched; their property was seized; their reputations were destroyed. They lost their careers, family, and friends. At least four committed suicide…
Chatelle concludes his article by explaining how unnecessary these laws are:
The sad thing is that child-pornography laws are not only unconstitutional, they're also totally unnecessary. There is no First Amendment right to commit a crime. A crime does not cease to be a crime just because someone photographs it. Child abuse is a crime and should be prosecuted. Using someone's image for commercial purposes without their permission (which children cannot legally give) is a crime and should be prosecuted… But the people who pass laws against child pornography have no interest in preventing or punishing child abuse or any other crime. They are interested solely in advancing their own power and their own careers.
Practicing IslamSome might argue that we have no law against practicing Islam in our country. But since we arrest and incarcerate Muslims by the thousands or tens of thousands, while allowing them no way to contest their arrests, in many cases the distinction between the legality and illegality of practicing Islam is lost for all practical purposes.
Whereas our
internal incarceration rate is by far the highest in the world, our imprisonment of prisoners
outside of the United States is even more disproportionately high. There are: known U.S. operated prisons
at Guantanamo Bay and
in Iraq and Afghanistan, where torture and other grave abuses of human rights occur routinely;
Secret U.S. prisons throughout the world where similar or worse abuses occur routinely; and “
extraordinary rendition”, whereby U.S. officials kidnap (or otherwise gather into their custody) men or boys and transport them to prisons in countries where few or no barriers to the most horrendous kinds of torture exist, in full knowledge that those men are likely to be systematically tortured and never released until dead.
Stephen Grey, Amnesty International’s Award-Winning Journalist for Excellence in Human Rights Reporting, in his book “
Ghost Plane”, meticulously documents the illegal and horrendous system of torture and other human rights abuses that George Bush has perpetrated upon the world as part of his so-called “War on Terror”. Here are excerpts of the U.S. torture program from the introduction to Grey’s book:
The modern world of prisons run by the United States and its allies in the war on terror is far less extensive (than the Soviet gulags under Stalin). Its inmates number thousands not millions. And yet there are eerie parallels between what the Soviet Union created and what we, in the West, are now constructing… How much more than surreal, more apart from normal existence, was the network of prisons run after 9/11 by the United States and its allies? How much easier too was the denial and the double-think when those who disappeared into the modern gulag were, being mainly swarthy skinned Arabs with a different culture, so different from most of us in the West? How much more reassuring were the words from our politicians that all was well?
How many prisoners do we have? Estimates of how many prisoners have disappeared into the Bush administration’s Gulag system
cannot be precise because of the secrecy. Estimates have varied
from 8,500 to 35,000. An
AP story estimated around 14,000:
In the few short years since the first shackled Afghan shuffled off to Guantanamo, the U.S. military has created a global network of overseas prisons, its islands of high security keeping 14,000 detainees beyond the reach of established law.
Colonel Larry Wilkerson, former Chief of staff to Secretary of State Colin Powell, who had
put the blame on Dick Cheney for much of the administration’s “torture guidance”, claims that the number of “disappeared” approximates 35,000.
What now? The ACLU and other organizations are
challenging the new FISA amendment in federal court, with the hope of restoring our Fourth Amendment.
But with four USSC justices who are unalterably hostile to all parts of our Bill of Rights except for the Second Amendment, our only hope is that Anthony Kennedy will vote to uphold our Fourth Amendment by striking down the FISA amendment when it comes before the Court. Notwithstanding Kennedy’s vote to retain habeas corpus, even to the extent of
writing an opinion that identified George W. Bush as a war criminal, I will never trust a man who voted to hand Bush the presidency in 2000 by
stopping the counting of ballots (that we now know
would have made Al Gore President). Since John McCain has promised to appoint “strict constructionist” (hypocritical and ironic
code for unalterable hostility to our Bill of Rights, except for the Second Amendment) judges to the Supreme Court, since John Paul Stevens is now 88 years old, and since the
current ages of the “strict constructionists” on the Court are only 53, 58, 60, and 72, McCain’s election would probably mean the end of our Bill of Rights for at least a generation if not much longer.
Nor is it at all encouraging that only 28 U.S. Senators (all Democrats)
voted to maintain our Fourth Amendment earlier this week. What possessed our Congressional Democrats to throw away our Fourth Amendment at the behest of a President with approval ratings in the mid-twenties? Could it be that some of those Senators who voted for the bill actually believe that voting against it could have jeopardized their chances at re-election? Or is it, as
Jonathon Turley notes, related to the fact that telecom lobbyists have poured money into Congressional campaigns to influence their votes? Either way, the whole thing is very depressing.
J. Edgar Hoover amassed such tremendous power from conducting electronic surveillance that he was able to intimidate U.S. Presidents to the point where they couldn’t get rid of him through 48 years in his position. And he was only an FBI Director. If he could do that, just think how much power could be accumulated by a U.S. President and Vice President using technology that is far superior to that used in Hoover’s day.
Americans should be very concerned and outraged about where our country is heading.
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