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Friday Talking Points -- Rest In Peace, Fourth Amendment

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Every so often as I sit down to write these Friday columns, the spirit of the rant overtakes me. Instead of our usual Talking Points section this week, I offer up such a rant, on the death of the Fourth Amendment. You have all been warned. I did consider calling this rant an "Ode To Dianne Feinstein," but then I thought that was too limiting -- she certainly isn't the only one out there singing from the same hymnbook. And I certainly wouldn't want to have anyone feel left out.

What this means is there's a lot to cover here in the introductory summary of the week's events. So forgive me if this all seems a little jumbled-together and in shorthand.

First up, we have the ongoing Republican War On Women, as usual. Here's a good wrapup of the sorts of things Republicans have been saying and doing, just in the past week. If this were a normal week, I would have ended the whole column with the bizarre tale of a Republican politician whose wife thinks he is being stalked online by strippers. You just know there's a lot more to that story than meets the eye, right?

The Big Brass from the Pentagon got their turn on the hot seat this week in a congressional hearing, during which they all strongly stated that they think commanders need to retain the magic power to make military rape convictions disappear for anyone under their command (more on this in a bit). The most telling part of this hearing was when only one of the branches of the military (the Coast Guard) could even point to a single commander who had ever faced any discipline themselves over misuse of this magic power. As for the rest of their answers, they were best summed up as "stunningly bad."

The Obama administration lost a court battle this week it really shouldn't even be fighting in the first place, and a federal appeals court ruled that until the Obama appeal is heard, the morning-after pill will be legally available to all without regard to age. I wrote about this subject earlier this week, if you're interested in the details.

In Texas, a Tea Party spokesman uttered a "Washington gaffe," defined as "accidentally speaking the truth in politics." Here's his quote: "I'm going to be real honest with you. The Republican Party doesn't want black people to vote if they are going to vote 9-to-1 for Democrats." Well, thanks for clearing that up! He later tried to walk his quote back, but it's the type of thing it's tough to walk away from, really.

Unsurprisingly, marijuana arrests are unbelievably racially unequal, according to a new report. Could've knocked me over with a feather, right?

In atheist news, the woman who politely informed Wolf Blitzer what an absolute buffoon he was being (hint to Wolf: if you want to call yourself a "journalist," don't put words in people's mouths!) by leaning on her to say she "thanked the Lord" for not killing her with a tornado (that did kill many of her neighbors, including children). She informed Blitzer that she was an atheist, and now the atheist community is helping her out by donating money for her, since assumably she doesn't have a church group to do so for her. While that's a feel-good story, the reaction of a Republican to the idea of "atheist chaplains" in the military (to give support to soldiers who may not want to talk to a religious counselor) was not exactly good news.

Immigration is finally getting its day in Washington, and (as expected), the Republicans are throwing shovelfuls of dirt on the grave of their chances of ever attracting any future Latino votes. Jeff Sessions insists that "virtually nobody" is being deported, while over in the House Steve King got an amendment passed that would treat the "Dreamers" the same as violent criminals. Way to boost Latino support, GOP! Can't wait to see what happens in the Senate next week, guys! Obama spokesman Jay Carney immediately shot back with a veto threat (should such a thing ever make it through the Senate): "It's wrong. It's not who we are. And it will not become law."

OK, that's it for this week. Oh, wait -- one more. Some counties in Colorado are apparently considering seceding from the state, now that them dang Libruls have taken over in Denver. You just can't make this stuff up, folks!

 

Most Impressive Democrat of the Week

OK, we've got to keep going with the shorthand-style here, because we've still got a lot to cover before we get to that rant. We begin with a list of folks who all have earned (for various reasons) at least an Honorable Mention this week:

Senator Frank Lautenberg died this week, which means New Jersey's Chris Christie has named a Republican who will occupy his seat in the Senate for the next five months or so.

Both former Senator Russ Feingold and current Senator Dick Durbin got in a hearty "I told you so!" this week, when the news on the National Security Agency's breathtaking vacuum-cleaner approach to phone records was made public.

Obama stuck his thumb in the eye of the Senate Republicans this week -- twice -- in terms of nominations. He announced Susan Rice would be becoming his National Security Advisor (a position which does not require Senate confirmation), and nominated three lawyers to the D.C. Circuit Court of Appeals all at once. This is going to set up a gigantic battle in the Senate in July, so stay tuned.

Patrick Leahy cosponsored an incredibly sane bill which would significantly dial back the entire concept of "mandatory minimums," but what was truly surprising about it (for me) is that I found myself agreeing with George Will on the matter. And Rand Paul, to boot.

But perhaps the most impressive of the Honorable Mention awards this week is Representative John Dingell, who has now broken the all-time longevity record in Congress, besting Robert Byrd by serving a whopping 57 years, 5 months, and 26 days as of today. When Dingell began serving his term, America was a far different nation -- one where segregation was still the law of the land, in fact. He took office just in time to see Eisenhower's second presidential campaign, to put it another way.

But our Most Impressive Democrat Of The Week this week is none other than Senator Claire McCaskill, who is getting very proactive about the whole "rape in the military" problem, in specific the "commanders overturning military verdicts" thing.

McCaskill made a statement this week that she would be placing a permanent hold on the promotion of a female Air Force Lieutenant General "for granting clemency to a convicted sex offender." This officer may have been the first woman from the military to travel into space, but she also "ignored a recommendation from her legal adviser to uphold the jury's conviction. The general intervened to grant clemency before an appellate court could hear the case," because she "found the defendant to be a more credible witness than his accuser" even though she hadn't witnessed the trial herself.

Such absolute power is corrupting by its very nature. And the only way this situation is going to change is if one of two things happen: either Congress strips this power away from such commanders by passing a law, or if individual commanders suffer professionally for abusing the power and overturning jury verdicts without even bothering to watch the case. The former is what Congress is now contemplating, but in the meantime I'm glad Senator Claire McCaskill is sending a warning shot across the bow of the Pentagon: abuse this power, say goodbye to future career promotions. Period.

For taking this stand, Senator Claire McCaskill is our Most Impressive Democrat Of The Week.

[Congratulate Senator Claire McCaskill on her Senate contact page, to let her know you appreciate her efforts.]

 

Most Disappointing Democrat of the Week

While some might argue for MDDOTW awards for folks like Senator Dianne Feinstein and Harry Reid for basically saying "What's the big deal?" over the NSA phone records revelation, we think we've adequately covered that subject (without stooping to name names) in the rant which follows below.

Instead, we have three Most Disappointing Democrat Of The Week awards to hand out -- to Representatives John Barrow of Georgia, Nick Rahall of West Virginia, and Mike McIntyre of North Carolina -- for voting to support Steve King's amendment to treat the Dreamers the same as violent criminals.

Words fail me. I guess we shouldn't count on you guys' vote for comprehensive immigration reform any time soon either, huh?

[Contact Representative John Barrow on his House contact page, Representative Mike McIntyre on his House contact page, and Representative Nick Rahall on his House contact page, to let them know what you think of their actions.]

 

Friday Talking Points

Volume 261 (6/7/13)

We gather here today to mourn the passing of the Fourth Amendment to the United States Constitution. Although weakened and battered in the past, it seems that it has finally succumbed and will be heard of no more. This is indeed cause for mourning, and a sad day for the country.

The Fourth Amendment was born, of course, as one of ten such amendments which came to be known as the Bill of Rights. The Federalists who pushed hard for the ratification of the Constitution insisted that no such Bill of Rights was necessary. Their political counterparts demanded the Bill of Rights as the price of their support for the Constitution. Antifederalists argued that while the Constitution laid out what the federal government was allowed to do, what was needed as a counterpart was a list of things the federal government would never be allowed to do. Never.

Most of these items were included because of complaints against the British abuses of power which led to the American Revolution. One of the major points of contention between Britain and her colonies was the payment of new taxes, and the rampant smuggling which the Americans had been engaged in to avoid all taxes. In cracking down on the widespread smuggling, Britain instituted some harsh policing procedures which basically gave them license to search anywhere they thought smuggled goods might exist. Here is how Samuel Adams, in his usual bombastic style, described these abuses (note: emphasis, spelling, and archaic terminology all from the original):

Thus our homes and even our bed chambers, are exposed to be ransacked, our boxes chests & trunks broke open ravaged and plundered by wretches, whom no prudent man would venture to employ even as menial servants; whenever they are pleased to say they suspect there are in the house wares etc. for which the dutys have not been paid. Flagrant instances of the wanton exercise of this power, have frequently happened in this and other sea port Towns. ... Those Officers may under colour of law and the cloak of a general warrant, break thro' the sacred rights of the Domicil, ransack mens houses, destroy their securities, carry off their property, and with little danger to themselves commit the most horred murders.

This was the passion behind the conception of the Fourth Amendment. This was how it was birthed -- as one of ten decaplets, all beautiful infants in their own right. It entered this world consisting of only 54 words. These words, the spirit of which have now been all but forgotten by today's government, are:

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.

It was a simple and beautiful concept, at its birth. Before the government can search or seize anything, a human being must swear before a judge that there is probable cause that a law has been broken. Searches and seizures will only be legal when a warrant has been issued and when such warrants are specific instead of vaguely all-encompassing. These warrants will not allow general or wide-reaching searches -- because they will be restricted to only cover whatever evidence was duly sworn to in court.

The Fourth Amendment led a generally robust life for its first century and a half. However, in the past few decades, it has been sickened and slowly undermined by courts and politicians who -- always with the best of intentions -- decided that there was some overwhelming governmental reason to ignore the clear and plain language of those four words: "shall not be violated."

It is said that the Constitution is "not a suicide pact," and that curtailing rights is often necessary to deal with situations where the possible harm to society so outweighs the possible harm to one individual. As I said, it's always with the best of intentions that rights are whittled away. I point no fingers of shame at anyone, politician or judge, who has done so. They meant well, one supposes. They are all "honorable men," as Mark Antony might have observed.

One of the first assaults on the Fourth Amendment happened because of a wave of hijacked airplanes. Passengers were bringing weapons on board planes and forcing the planes to fly whither they wished. These were acts of terrorism and kidnapping writ large, which are impossible to defend. The inconvenience of stepping through a metal detector was justifiably necessary to guarantee passengers' safety on airplanes. But what it meant was public acceptance of being searched to travel on a public conveyance. Everyone agreed that these were reasonable searches, though, since everyone was searched equally and since there was indeed a very real hijacking problem to be solved.

Congress created a special court around this time which would operate in total secrecy, in cases where the government was arguing to retain its own secrets in the field of "foreign surveillance." One can only imagine what the nation's Founders would have had to say about such a court's creation. This court went on to become a rubber-stamp for the government, rarely turning down any warrants or actions the government deemed too secret for the American people to know.

Later, the public became outraged at the leniency of how the laws against drunk driving were being applied. In response, stricter laws were passed across the land. The police became a lot more proactive in combating what everyone agreed was a threat to society -- people driving around who had no business being behind the wheel because they were such a danger to everyone else. So checkpoints sprang up. Now citizens were subject to search not only when flying on commercial airlines, but driving their car down a public street. The Fourth Amendment shrank a little more, but everyone had the best intentions and it was impossible to defend the rights of drunk drivers politically. The checkpoints were deemed reasonable searches. As were checkpoints set up on roads near the nation's borders, to search for illegal immigrants.

The next step was to combat drugs in cars, and the way to achieve this was by using dogs to sniff them out. The police could stop your car and run a dog around it and if the dog barked, that was deemed "probable cause." Now, I hate to say it, but very few dogs have actually read the Constitution. I know of no dogs who have ever given an oath or affirmation in court before a judge. But they were given the power to decide what was legally meant by the words "probable cause."

If any one political action can be said to have done more to kill off the Fourth Amendment in the pre-9/11 world, it would have to be the War On Drugs. The federal government, after deciding it had the power to regulate plants and other substances which many Americans consumed, also determined that the Fourth Amendment didn't apply to "open fields" -- even if the police had to ignore "No Trespassing" signs and hike a considerable distance across private property to even view such a field. Police would be allowed to "stop and frisk" any citizen who looked the least bit suspicious. That was reasonable, the government argued. Probable cause became contingent on the "good faith" of the officer doing the searching -- even though I've never met a policeman who wouldn't swear in a court of law that every single thing they did in the performance of their duties was done in "good faith." Faith, by its very definition, means believing in something which is unprovable. The people responsible for this body blow to the Fourth Amendment, though, were doubtlessly had the best intentions and were all (one assumes) also acting in "good faith" -- although it's hard to pin down what they were being faithful to, because it certainly wasn't the Bill of Rights. More than anything else in the twentieth century, the Drug War proved to be almost a terminal illness for the Fourth Amendment.

Of course, what really killed off the Fourth Amendment was the enticement of technology. The federal government began very early on to realize that technology made it easier an easier to collect evidence. Phone calls could be tapped and recorded. What better way to convict someone than by the use of his or her own voice? Phone tapping is as old as the telephone itself, almost.

The Fourth Amendment initially fought off this sickness and the courts agreed that tapping someone's telephone was an activity covered by the Fourth Amendment, therefore warrants had to be sworn out before someone's phone could be legally tapped. This didn't stop the government from tapping a whole lot of phones they didn't have warrants for, but it did mean they couldn't use any of it as evidence to convict anyone of a crime.

But telephone systems got bigger and better. Computers entered the scene. Mobile phones became ubiquitous. Technology leaped forward, to include global positioning which could physically pinpoint an electronic signal.

And then came the horror of 9/11.

A shocked nation immediately rallied behind politicians who passed a law with an odious and Orwellian name which served to override many constitutional rights in the face of an emergency situation. The men and women who created this law considered themselves Patriots, however -- they had nothing but the best of intentions. But the Bill of Rights is always most at risk when the nation is under attack or at war -- the first time it happened was less than ten years after the Bill of Rights was passed, in fact. Ben Franklin predicted such, when he prophetically warned: "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety." You just knew I was going to use that quote somewhere in here, didn't you?

The Fourth Amendment was thrown out the metaphorical window at this stage. It's fall downwards has been decried by many, but it has now hit the ground and lives no more. Anyone could be searched anywhere, as long as the reason was "preventing terrorism" -- so open up those backpacks as you try to board a train, go to the beach, or attend a sporting event. The secret court sprang into action as well, and first decided that warrants simply were not to be required to listen in to any American speaking to any foreigner on the telephone. Then it decided that wider and wider nets could be thrown to harvest as much data as could be technologically feasible. Airport security was given free rein, and now instead of just looking for weapons (in what now amounted to a strip search or even sexual assault), they were also authorized to search a laptop computer's files. DNA samples could be taken from anyone arrested by the police -- even if the government never charged them with a crime. The government could collect your trash every week and root through it without a warrant. Information on every citizen's phone calls was vacuumed up in the biggest haul yet. Computer traffic was likewise collected in bulk. Just in case.

The reason why I now say that the Fourth Amendment is no more is because of the implications of the most recent revelations. The government swears it is only glomming on to everyone's phone information so they can use it later -- when there is an actual investigation of someone suspected of a crime. But the reason that person is suspected has now been completely automated. Computers themselves determine what is probable cause. Citizens making phone calls to foreign countries have their phone calls recorded, but because of the sheer volume of data, a computer scans what is being said and "red flags" those conversations which it decides appear to be criminal or subversive. A human never sees the data until the computer points it out. The same with the database which was revealed this week. While not recording the conversations themselves, if the computer deems your use of telephony suspicious -- whether by what numbers you call, whether your "use pattern" looks "unusual" to the computer, or perhaps by the location you are in when you pull your phone out of your pocket -- then the computer will alert a human to take a look.

But if you asked this computer program (assuming for the sake of argument that the N.S.A.'s computer were programmed to respond to such inquiries) to make an oath or affirmation before a federal judge that there was probable cause to suspect an individual of a crime, you know what the computer would answer?

"I'm sorry, Dave, I'm afraid I can't do that."

The initial suspicion and the initial evidence-gathering to show probable cause is now done by the close cousins of the fictional HAL 9000. It leads, legally, to what computer programmers would call an "endless loop" or perhaps "circular logic." A person is suspected of aiding and abetting terrorists. This suspicion arises from the fact that a computer has already analyzed the data and perhaps phone calls of the suspect. But this is evidence of a crime. The only way to get a search warrant -- so this evidence can be presented in a legal court of law -- is to have someone swear before a judge that there is probable cause. But this probable cause only exists because the evidence has already been collected. "I need a search warrant to seize information I already have," to put it another way.

We've followed a long path to where we find ourselves now. The Fourth Amendment had a good run, and future historians will point back to our era as the time when American society decided it just didn't care anymore. There simply is no widespread "expectation of privacy" of anyone who lives and operates in the modern interconnected world. Data flits hither and yon through wires and through the airwaves, and private corporations don't just collect all this personal data on you, they sell it to anyone willing to pay for it. Why should it be a big deal if the government gets in on the game? The politicians already are -- "data-mining" has become a crucial operation for any national political campaign. These politicians come from both sides of our political divide, too -- in droves. There weren't many votes against the USA PATRIOT Act, and there haven't been a whole lot of votes to overturn it since. It is in fact routinely extended nowadays.

Libertarians on the right and civil liberties types on the left are mere voices crying in the wilderness as the vast majority of politicians form a thundering herd in order to all get their bootprints on the tatters of the Bill of Rights. It's not enough that dogs were given the power to interpret the Fourth Amendment, now the entire process has been completely automated. I'm sure the dogs and the computer programs are all acting in good faith, right? One wonders: why do we even need FISA courts anymore? A simple subroutine inserted in the program would serve the same purpose. Any computer programmer worth his or her salt could create one during a lunchbreak. In good faith, of course.

If the government can come up with a rationale it considers "reasonable" to collect data on every phone call made in America, then one wonders what would not fall under similar reasoning. After all, it might help some theoretical future terrorism case if the government had data on every credit card transaction in America. Or every bank transaction -- there's no need for a warrant, we promise we'll only look at the database when the computer tells us there is probable cause of a crime having been committed, how's that? All those GPS devices in automobiles spit out a whole lot of interesting data -- and it'd probably make all those future terrorism cases easier if we sucked all that data up too. In fact, it's hard to see how any data deserves to be private, since all of it could quite possibly catch terrorists at some future point. We're so far down this slippery slope that it's virtually impossible to see how we can climb out of the ditch, really.

Of course, all these people in the government who are responsible for where we find ourselves now -- they're all acting from the best of intentions. They all want to keep us safe. As far as they're concerned, they're all being reasonable in interpreting the plain language of those 54 simple words. While we send our best wishes that the Fourth Amendment will rest in peace throughout eternity, they would prefer it if we all went back to sleep and refused to attend this funeral. No doubt there will be an investigation into the leak, to punish whomever woke the public up. It's not that they want to prevent some of us from remembering the Fourth Amendment and mourning its passing -- it's that they prefer we not even notice such a momentous turn of events in the first place. "Don't worry, be happy," both Republican and Democratic leaders say. "Just trust us, we know what we're doing." Maybe that's a fitting epitaph for the Fourth Amendment: "Our hearts were in the right place as we eagerly joined together to kill it. We really had only the best of intentions for doing so."

 

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