On April 12, the United States House of Representatives defeated an amendment to section 702 of the Foreign Intelligence Surveillance Act that would have required a warrant to search for information about an American from a sweeping foreign intelligence database that the National Security Agency (NSA) has assembled in dragnet surveillance of parties outside the United States.
Thereby hangs a tale of our lost Fourth Amendment right to be reasonably left alone, the same desire that ignited the American Revolution. As John Adams wrote regarding James Otis’ fierce denunciation of British Writs of Assistance to rummage through the homes of American colonists, “There and then the child Independence was born.”
Facilitated by the digital age, the right to privacy has been crucified on a national security cross since the United States emerged as a global military power after World War II. The government has a dossier on virtually everyone, the “not-yet-guilty” in the words of former Director of Central Intelligence and the NSA, Michael Hayden. The NSA vacuum sucks up electronic communications shared in public everywhere in the world — even the communications of former German Chancellor Angela Merkel. Edward Snowden’s disclosures of the NSA’s warrantless collection of internet data on Americans were but the tip of the iceberg.
Nothing is off-limits. Your electronic payments or withdrawals. Your Google search history. Your emails. Your travel stops. Drone surveillance followed by facial recognition aid the electronic trail.
The so-called third-party doctrine invented by the United States Supreme Court strips of constitutional protection all communications or other aspects of your life shared with any other person or entity, including your internet provider or banker. Congress has left the third-party doctrine largely undisturbed.
This infinite seizure and storage of information is assembled without suspicion of crime, without a warrant, without probable cause, and without vetting by a neutral magistrate. It is George Orwell’s “1984” nightmare come true. Supreme Court Justice Robert Jackson warned in his dissent in the 1949 Brinegar v. United States case:
Fourth Amendment rights against unreasonable searches and seizures are “not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.”
President Dwight D. Eisenhower’s semi-hysterical 1954 Doolittle Report, on the covert activities of the CIA, calling for the subservience of liberty to the requirements of American world domination has been vindicated in spades. The report elaborated:
“It is now clear that we are facing an implacable enemy whose avowed objective is world domination by whatever means and at whatever costs. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply. If the United States is to survive, longstanding American concepts of ‘fair play’ must be reconsidered. We must develop effective espionage and counterespionage services and must learn to subvert, sabotage and destroy our enemies by more clever, more sophisticated means than those used against us.”
Since the Doolittle Report, we have been dulled or stupefied into docile acceptance of the de facto annihilation of the Fourth Amendment by grossly inflated fears of crime, foreign aggression or international terrorism. A substantial percentage of Americans are afraid to challenge government wrongdoing or abuses for fear of retaliatory leaks of derogatory information assembled in dossiers that could tarnish their good names or impair their employment or credit prospects.
Nothing is more dangerous to self-government than an inert people. In the long run, our rights are what we are willing to fight and sacrifice for. We should be demanding that Congress and state legislatures repudiate the third-party doctrine. We should be demanding that government surveillance of United States persons require a warrant issued by a neutral magistrate based on probable cause to believe the target is implicated in crime. Searches or surveillance of Americans to gather “foreign intelligence” should be prohibited. That latter concept excludes nothing. It sweeps vastly beyond criminal activity.
The spirit of the Fourth Amendment was captured by William Pitt the Elder in the British Parliament. It should be recited in every classroom at the beginning of each day as the first step to rolling back our surveillance state:
“The poorest man may in his cottage bid defiance of all the forces of the Crown. It may be frail — its roof may shake; the winds may blow through it; the storms may enter; the rain may enter — but the King of England cannot enter. All his force dares not cross the threshold of the ruined tenement.”
Armstrong Williams (awilliams@baltsun.com; @arightside) is a political analyst, syndicated columnist and owner of the broadcasting company, Howard Stirk Holdings. He is also part owner of The Baltimore Sun. This column is part of a weekly series written from “The Owner’s Box.”