Bush's warrantless wiretaps don't surprise me, given the way many politicians treat the Bill of Rights. This is perhaps the thing I like least about our elected officials (Democrats included). They are nearly all willing to go along with various forms of ignoring, say, the Fourth Amendment. I'm appalled by the blithe attitude they often bring to the issue.
Still, I have to admit that there are times when the BoR seems downright 18th century. Is it possible that the Constitution is overdue for its 200-year checkup? Maybe we ought to send our best and brightest to a convention, and let them rework that delicate balance between security and freedom.
But first, the following advertisement for due process.
[Much of this was a comment from
Breaking the law to spy on Americans by
kos last night.]
For as long as I can remember various politicians have been trying to chip away at the Fourth Amendment. This usually ends up as a case to the Supreme Court. And with alarming frequency, recent Courts have sided with these tireless defenders of power. All this in clear violation of what the Constitution says.
The Constitution seems quite clear to me. Why is it so hard for the average politician to understand what the authorities are supposed to do? It's not like it was written in Middle English, or anything. Here's my reading of the Fourth Amendment, something that the Bush Administration renders in a slightly different way:
If the government wants to search someone they have to have a specific reason to suspect the person has committed or is about to commit a crime. That's what
reasonable means.
To prove that they have a specific reason, they need a warrant. And that warrant requires it be probable that the person in question is doing something illegal. Furthermore, it needs to be issued pursuant to someone swearing or affirming legally that there's cause to believe a crime has been committed or is in progress.
And that warrant has to specifically describe the place to be searched. And, it has to specifically say who or what the government is planning to seize once they've conducted the search.
Nothing about this says that you, as the target of the search, have to be at home or that you even have to be a U.S. citizen. Furthermore, there's no place in the Constitution that limits this particular set of restrictions. (This is important because there would have to be some constitutional basis for negating such a clear and specific stricture of the Constitution. Simply passing a bill in Congress, even if the President signs it, isn't good enough.) The government doesn't get to do it differently because it's a time of war or because it's some emergency. The language is quite strict, maybe too strict, but that's the actual law as it was written and as it has stood for over 200 years.
There really isn't another reading, either. It doesn't matter if you are a strict constructionist, an originalist, a blatant interpreter based on modern conditions, or a simple activist judge. The bottom line is that the government should never be able to abuse this power. But some people want to have a little bit of violation, on the grounds that they might find it necessary to protect people.
It's like the twisted Bush logic about torture. He wanted to weasel around what the law actually says. But you can't skate on the definition of torture. How we treat torture goes to just who we are as a nation. And so does how we treat the Fourth Amendment. You can't be relativist on the Fourth Amendment without selling your soul to the devil, just like you would sell your soul if you let the government do a little bit of torture.
But yet, members of all three branches of government treat this law with great abandon, as if it were something like a parking ticket instead of the most fundamental law of the land. They are, literally, breaking the law.
When you break the law that makes you a criminal.
Representatives and Senators might want to consider these facts when they pass bills like the Patriot Act. A bill that violates the Fourth Amendment is a bill that breaks the law. If you vote for such a thing, you are trying to get the government to break the law. What, I ask, does that make you?
But maybe more importantly what kind of example does that set? Anyone wonder why people are so cavalier about the law? Speed limit? Rolling through stop signs? Paying the nanny under the table? No mystery to me. They have this wonderful example of our most august politicians flaunting the law almost daily.
I have great respect for those, like Senator Leahy, who have stood up for our rights when just about every other Senator caved in after those attacks on 9/11. Would that his example be more widely emulated.
But I also have great sympathy for those who would say that modern society demands that we compromise somewhat on our absolute right to freedom from search. After all, the signers of the Constitution could not have foreseen airliners full of passengers flitting through the skies and great skyscrapers so voluminous that entire cities might exist within. Frankly, the very strictness of the wording tempts even good people to bend the rules. Imagine what would happen if you got a weak person in power. Or someone who wasn't even a good person. (Am I painting a picture of a particular President you know?)
Nevertheless, we must treat our right to privacy with extreme caution. If compromises are to be made they should be made through the amendment process, so that we can carefully weigh what rights under what circumstances we will give up for our security. This is an area--our most personal rights--where it isn't sufficient to get Congress to consider a bill, the President to sign it, or the Supreme Court to give its word on the results. This is where we need for it to pass muster in the statehouses, one by one, where it can be debated out and everyone can have a say, and maybe even ultimately understand why we have made a particular decision. We need for this change to not only be a valid change to the law, but also to be one widely understood and accepted by the people who have to live with it. We need buy-in.
No civilization in recorded history has had such a broad and effective guarantee of personal rights. Even ancient Athens did not extend equality to all the people in the city. We've achieved far more. For us to ruin this shining achievement would be one of the most disastrous tragedies to ever befall a people. But we have been chipping away at this for some time. And we've seen how simple it is for a careless government to let some unforeseen situation wipe away the veneer of civilization. So, I suggest that we address the question of searches through the amendment process. I really believe that this is the only way to put a stop to the slide down this slippery slope.