Tuesday, June 11, 2013

The NSA and the 4th Amendment

My post of Saturday, June 8, 2013 was intended as a humorous take on what is, unfortunately, a very serious issue. The NSA capturing the phone records (or at least that is what the government is telling us) and the e-mail and other Internet traffic of American citizens who have done nothing wrong, nor even contemplated doing anything wrong, goes against the 4th Amendment to the US Constitution. The 4th Amendment states:
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.[1]
This is pretty absolute language, and by no means would the the Founders' 4th Amendment have contemplated a fishing expedition like that being conducted by the NSA, yet the official party line is that all this is nice and legal like. What gives? How can they say this without laughing at the ridiculousness of what they are saying?

The courts over the years have introduced a "balancing test" in which your reasonable expectation of privacy is weighed against "compelling state interests" in "protecting the public." In the case of electronic communications, they note that hackers get into systems all the time, and that with the right radio equipment anyone can listen in on cell phone conversations. The equipment is easily available on the commercial market outside the United States, and is available for purchase by law enforcement inside the U.S. Therefore, they conclude that you have no reasonable expectation of privacy. But hackers and people voyeuristically listening in on your private phone calls are, by definition, criminals. Should their actions be discovered, they risk prosecution. Since We the People can not do it, it begs the question how someone working for the Government, which only has those powers delegated to it by us, is able to do it. And how the courts can maintain with a straight face the idea of a "balancing test" in which, surprise, surprise, the "compelling state interests" always outweighs individual rights is a mystery beyond all understanding. I guess they figure that if they use enough big words that nobody will notice.

We now learn that the person who outed the NSA to the UK Guardian was a 29 year old analyst working for Booz Allen Hamilton as a contractor at an NSA site in Hawaii named Edward Snowden. Snowden's thin resume may or may not be a red flag. People have become excellent in computers without having a college degrees, as Bill Gates and Steve Jobs can attest. But the fact that the Government gave him access to the wide array of information he claims to have had access to is surprising, and does raise eyebrows. In any case, whether or not Snowden actually took an oath of office or not, every American's loyalty should be to the Constitution of the United States. Every American should understand that laws that are not Constitutional, whether declared as such by the Supreme Court or not, are null and void. Whether or not Snowden actually obtain these materials himself, or is the fall guy for others up the chain who want to remain in the shadows, Snowden is a Hero of the Republic. I have to agree with Bob Beckel, and evidently with (ugh) Michael Moore on this one. Congress should subpoena this man with full immunity to tell the public what he knows. Listen to what Snowden told the Guardian and think about the IRS scandal now developing. Still believe it isn't possible in America?

Karl Denninger has an outstanding take on the relative risks of being killed in a terror attack versus other ways in which an individual could die. (A hat tip to Anthony Martin of the Liberty Sphere) What we learn from this comparison is that there is no reasonable excuse for the Government to suspend our Constitutional rights. Moreover, there has been no "national debate" on the subject. I have said all along that I will take my chances with the terrorists rather than have my rights and my dignity infringed by a Federal Government going on a fishing expedition into my personal life. That goes for the TSA and the DHS as well, but we are speaking now specifically about the NSA. Again, they have no warrant (or more specifically, the warrant is invalid) to collect the data of Americans for whom they have no probable cause to believe they have done anything wrong. Snowden seems to have connected the dots, despite his thin resume, so either he is a very astute individual, or he has done a lot of reading.

Now, if you are still thinking that this is all a big mistake, that the NSA didn't mean to collect all this data for seven whole years, please read Adina Kutnicki on the existence of a political dissidents list. Note that a grain of salt is needed here, as her source is not named, and we can not verify what he tells her. Never the less, With all the above, is it really that implausible?  Political dissidents are of concern only to tyrannical dictatorships, who insist that everybody must think and act the same, and who are afraid that if dissenting ideas come out, they will lose power. But it is not the American way.  We have always known that the truth will eventually dawn on people if it is presented to them.  Unfortunately, the people have not gotten the message due to a media compliant with the dictators, and a dumbing down of our education system.  But the spectre of Big Government rooting around in everybodies' private e-mails and phone conversations may just be the catalyst to wake everybody up.  Otherwise, I fear we are headed for a long nightmare.

Update:  The Huffington Post says there is more, much more, to come on the NSA. We'll be watching Mr. Greenwald.

Update 2: From TheBlaze.com comes the pro surveillance argument. I would point out first that there is no evidence that collecting the records of everyone for 7 years has stopped even one terrorist plot. It certainly didn't stop the Boston bombing, or point to who did it.  So, why is it necessary again?  Second, our WaPo correspondent seems to be conflating terrorists abroad and American citizens.  The government can record terrorist abroad to its hearts content.  If they have probable cause, they can swear out a warrant from a judge and snoop whatever they want.  If that snooping leads to another American, they can go to the judge again and swear out another warrant.  It is not as if we had been defenseless before.  These things are spelled out in the Constitution.  Try using it for a change.

Update 3:  On Wednesday, Ben Shapiro had an interesting piece entitled 7 Reasons to Worry About Federal Surveillance. He asks a number of practical questions, for instance, does it make sense to have everyones' personal information in one place where the Chinese can hack it? The IRS has our personal financial information, ObamaCare will make available our medical information to the government, and now the NSA seems to have the rest. What remains private in America?

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