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Another View -- Chuck Douglas: 'Legal' government search is not necessarily a constitutional one

July 02. 2013 10:13PM

The unprecedented sweep and scope of the NSA invasion of privacy for Americans is breathtaking. The initial response from the government, of course, has been “everything is legal.” What they aren’t discussing is whether it’s constitutional. That is always the tougher question.

Americans have the Fourth Amendment to our Bill of Rights as an underpinning to protection for the privacy and security of our “persons, houses, papers, and effects.” But how can we be really secure in our homes and communications if government agencies use a secret court on an ex parte basis to gather information without warrants?

It gets even worse because there are 1.2 million people with Top Secret security clearances and 38 percent of them are private contractors spread over 6,000 NSA vendors. With every keyboard click and phone number stored away, who can say with a straight face no abuse or misuse will ever occur?

George Santayana said years ago that those who fail to learn the lessons of history will be condemned to repeat them. Let’s turn back to a lesson of history in 1760.

The British authorities were concerned that the colonists had untaxed tea and other items in their homes that had been smuggled into the colonies without proper payment of taxes or duties. Therefore, in 1760, all of British North America became subject to a government order authorizing a “writ of assistance.”

The writ was a piece of paper given to British soldiers and customs officials authorizing them to search anyone, anywhere, for anything without the need to establish reasonable or probable cause to suspect that the person was in violation of a law.

A young Boston lawyer, James Otis, gave up his job as King’s Advocate General to argue in court against the Writs of Assistance. Otis said the broad writ was unconstitutional under British law. John Adams, who witnessed Otis in action in a Boston courtroom, wrote, “Otis was a flame of fire…. The seeds of patriots and heroes were then and there sown. Here this day,… the child Independence was born.”

When the Declaration of Independence was signed on July 4, 1776, it referenced the writs of assistance, claiming that the King had “sent swarms of officers to harass our people” and had acted like a “tyrant.” It is not surprising that after independence, all 13 colonies abolished the writs of assistance.

Consequently, the Bill of Rights requires that a law enforcement officer get a warrant specifically describing the person or place he or she intends to search and the items he or she is looking for. The warrant requirement of the Fourth Amendment thus helps to guarantee that citizens will be secure in “their persons, houses, papers, and effects.” Under our system, you don’t get to first search for probable cause and then go get a warrant.

The other concerning matter is the Foreign Intelligence Surveillance Court. It is a one-sided court. Other than certain juvenile and intimate family matters, our courts are open to the public. As a nation, we decided long ago that the best way to ensure public accountability is for the public to have free access to the government as it conducts its business in front of judges. The FISA court is part of a security apparatus because of its secrecy and because of its one-sided nature. The Wall Street Journal had recent statistics that showed approximately 700 requests to FISA, with zero denials over the last seven years. When you don’t have any opposition, winning in court is a breeze.

With just three common carriers: AT&T, Sprint and Verizon, there are 314 million phone users in the United States out of a population of about 350 million people being data mined. That’s an extremely broad sweep.

When I was growing up in the 1950s, President Eisenhower gave a famous speech about his concern that the military industrial complex posed a challenge to America’s future because of its size and power. Today, someone needs to speak out about the military intelligence complex in the same terms.

Our government, the same one that may have used the IRS to harass political opponents, wants you to trust it while it skirts the Bill of Rights. Why should you?

Chuck Douglas is an attorney in Concord. He has served as a state superior and supreme court justice and a member of Congress from New Hampshire.

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