The undisclosed location of the Fourth Amendment

The national security debate is unnecessarily clouded with the current event caveat about the executive branch’s neglect to seek the Congressional compliance apparatus of FISA for the NSA’s warrantless wiretapping program. Somehow, advocates for these policies have stashed the fundamental Fourth Amendment at an undisclosed location.

Ya know, that Bill of Rights piece that included principles about unlawful searches and seizures? With modern complexities included, the amendment’s tenets of arrest warrants, judicial approval, probable cause and limited scope to specific information on specific people remain not only relevant but sacrosanct.

“It didn’t matter whether you were in Kansas, you know, in the middle of the country, and you never made a communication — foreign communications at all,” said NSA whistleblower Russell Tice. “They monitored all communications. … Now, what I was finding out, though, is that the collection on those organizations was 24/7, and you know, 365 days a year, and it made no sense. And that’s — I started to investigate that. That’s about the time when they came after me, to fire me. But an organization that was collected on were U.S. news organizations and reporters and journalists.”

Newsweek’s Stuart Taylor Jr. and Evan Thomas agree with the spying tactic, writing that the only thing in need of heeding was the Bush-Cheney administration’s circumventing of the legal process.

“Obama has already shown a prudent willingness to bend or abandon his more sweeping campaign rhetoric. Last summer, to the horror of civil-liberties groups, he reversed himself and voted for amendments to the Foreign Intelligence Surveillance Act (FISA) that he once suggested would ‘undermine the very laws and freedom that we are fighting to defend.’ The amendments allowed Bush to continue—with more judicial oversight—his initially secret, widely decried warrantless-wiretapping program. It was a smart move by Obama, both as policy and as politics. FISA was obsolete well before 9/11; for one, its applicability depends on knowing in which country the surveillance ‘target’ is located, and modern communication (cell phones, e-mail) often makes it difficult—or impossible—to know. The technology had changed, and so had the nature of terrorism, becoming more global and sophisticated. Bush should have worked with Congress from the beginning, and Obama was wise to back the compromise that finally passed.”

Being governmental mouthpieces, Taylor and Thomas likely would be OK with themselves being wiretapped. They would shrug and say they have nothing to hide. They would cite that the danger of Al Qaeda with today’s technology is too ominous to appease. Their view would undoubtedly include an argument about protecting freedom.

But if that so-called freedom comes with the cost of privacy, the only thing we are protecting is an autocracy.

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