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Trashing the Fourth Amendment

There’s a country that earlier generations might not recognize in which the national government’s criminal investigative agency can execute its own warrants without court approval; present them to private companies and demand information about people who are not necessarily suspected of criminal wrongdoing; and — if that were not enough — forbid those companies from telling anyone — not even the target of the investigation.

The country I have in mind is not a Latin American banana republic or a Middle Eastern dictatorship. It’s the United States of America.

The warrant-like orders requiring no judge’s signature are called national security letters. In the last nine years the FBI, Defense Department, and CIA have issued well over a hundred thousand national security letters. The FBI has exceeded even the broad powers granted by Congress, and that overreach continued for years after it came to the attention of bureau lawyers. Earlier this year the inspector general of the Justice Department documented the FBI’s frequent violations of the law. If the government is now operating within the law, that is no reason for complacency: The law itself is an abuse.

Nevertheless, it doesn’t go far enough for President Obama, who campaigned against Bush administration civil-liberties violations like warrantless wiretapping. Obama wants Congress to expand the scope of national security letters even more. It’s another case of a “progressive” political figure one-upping the conservatives at “national security” measures once he gets his hands on power.

Unfortunately, these things get little public attention — do most people even know that national security letters exist? I can’t help asking: Shouldn’t we be concerned about this? I’d have expected people who claim to revere the Constitution to be rather upset by a law that authorizes federal intelligence and investigative agencies, on their own initiative, to demand private records without a court-issued warrant and in the absence of specific criminal activity — while keeping the target in the dark so he can’t challenge the demand before a judge. What happened to the separation of powers and the First and Fourth Amendments? We’re talking about some venerable and hard-won protections in Anglo-American law, protections that have now been blithely nullified.

According to the Washington Post,the Obama administration says it wants to clarify existing law so that national security letters can unambiguously include among the information demanded: “the addresses to which an Internet user sends e-mail, the times and dates e-mail was sent and received, and possibly a user’s browser history.”

Browser history? Could a browser history be used to build a criminal case against someone? “Electronic communication transactional records,” the undefined phrase that Obama wants added to the law, would not include the content of communications – or so say administration lawyers. After all that’s been going on of late, why should anyone believe that?

The legal clarification is said to be necessary because some Internet service providers refuse to turn over such information on grounds that doing so would violate the law, although most reportedly do.

Why not just get a warrant?

A national security letter, an administration official said, “allows us to intercede in plots earlier than we would if our hands were tied and we were unable to get this data in a way that was quick and efficient.”

This is a boilerplate rationalization – complete with the tied-hands trope — for unchecked executive power. It was the same excuse used to justify warrantless eavesdropping even though the FISA court expedites the obtaining of warrants. (This is not to say the FISA court is an adequate safeguard of civil liberties. It has functioned more like a rubberstamp than a real independent court.) If the powers that be had liberty among their priorities, they’d find a way to have a real court issue warrants quickly.

National security letters did not begin with the 9/11 attacks and the Patriot Act. They originated in 1978 but were used infrequently and were limited to suspected foreign agents directly under investigation. Institutions served with a letter could not be forced to comply. In the 1980s and ’90s the power was broadened: Targets no longer had to be foreign agents under investigation; the information sought merely had to be declared “relevant” to a terrorist investigation or intelligence operation. Compliance became compulsory. The 2001 Patriot Act expanded the power even more, but as noted, that virtual blank check wasn’t enough for the FBI. For example, it often sought information unrelated to any existing investigation, and informal “sneak peeks” and “exigent letters” were used to get around the loose law when the FBI found it inconvenient.

Isn’t this the sort of thing that sparked that revolt against the British Empire?

National security letters are not the only problem. Congress passed, a president signed, and the Supreme Court upheld in June of this year a law forbidding Americans to give vaguely defined “material support” to government-designated foreign terrorist organizations, even if that support is nothing more than conducting a seminar on nonviolent conflict resolution for a group that directs none of its activities at Americans. (Ominously, Solicitor General and soon-to-be Supreme Court Justice Elena Kagan argued the case for the Obama administration. Chief Justice John Roberts chided her for refusing to acknowledge that the law infringes freedom of speech, which was otherwise okay with him.)

Are we so afraid that we are eager to trash irreversibly what’s left of our civil liberties? Is that what we have reduced ourselves to? Have we no sense of the ideals we have betrayed?

Those who know the movie A Man for All Seasons will be reminded of the scene in which Sir Thomas More and William Roper clash over the value of law as a check on the arbitrary government power. This might be a good time take More’s argument to heart.

Roper: So, now you give the Devil the benefit of law!

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

SHELDON RICHMAN is the editor of The Freeman and TheFreemanOnline.org. He is the author of Tethered Citizens.

 

 

 

 

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Sheldon Richman, author of America’s Counter-Revolution: The Constitution Revisited, keeps the blog Free Association and is a senior fellow and chair of the trustees of the Center for a Stateless Society, and a contributing editor at Antiwar.com.  He is also the Executive Editor of The Libertarian Institute.

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