Friday, July 4, 2014

A Day for All Americans to Be More Aware of Their 4th Amendment Rights- And How They've Been Eroded

Photo: Edward Snowden receives his ACLU card.
Above, Edward Snowden receives his ACLU membership card from Anthony Romero, head of the ACLU

As Americans fire up their grills and barbecue pits today, and quaff gallons of beer, one hopes they also give a thought to what the day is really about. Hint: It's not just about entertainment and eats, but also about history.  What was the War of Independence fought over anyway? Do most people today even know? Did they ever study it or track relatives who participated in it?

Fortunately, I hail from a family that's documented much of the associated history. (Which my wife has excavated via and discussions with cousins, other relatives discovered in her genealogical searches)  My great grandmother, Eliza Brumbaugh Stahl,  also had many occasions to regale grandson, Curtis Jr. (my dad), regarding the exploits of ancestor Conrad Brumbaugh - who fought with the Pennsylvania Regiment in the War of Independence. Like many of the colonists, Conrad was enraged by the Stamp Act of 1765 (which imposed stamp taxes on all publications originating in the colonies) but his greatest ire was reserved for the Writs of Assistance. This was one of the outrages in the 1770s that led directly to the Revolutionary War and involved the use of indiscriminate mass warrants.  The British used the Writs to defy and besmirch any concept of the "personal" and smashed into colonists' homes on any pretext- tearing them apart.

By the 1770s the British use of the Writs of Assistance had become widespread and enraged all those affected. As one academic site explained:

"Most notably, the writs allowed officials to enter and ransack private homes without proving probable cause for suspicion, a traditional prerequisite to a search."

The Writs then provided the 'fuel' for the Revolution but the pamphlet 'Common Sense' -  by Thomas Paine, provided the spark to ignite it.  Make no mistake the pamphlet is an unapologetic polemic and I would recommend that readers unfamiliar with it at least read this key chapter:

Try to put yourself back in the shoes of the colonists at the time, and imagine how Paine's words would spur them to action.

Now come forward 238 years and look at today's situation. What do you see? How would Conrad Brumbaugh react if informed of the changes in 4th amendment rights since he shed blood for those rights?  In writing the 4th amendment, the framers were motivated more than anything by the excesses of the Writs of Assistance.  This is why they deliberately singled out the need for authorities to obtain specific or individual warrants - mass warrants were anathema. The framers wanted no repeat of the outrages that launched the Revolution.

Yet that is exactly what's transpired! The Writs of Assistance bear perfect analogy to what the NSA is getting away with today using the mass warrants and its PRISM, Xkeyscore and MUSCULAR programs. And who today would be the new Thomas Paine? None other than Edward Snowden! In his recent interview (ACLU Stand, Summer 2014) with Anthony Romero of the ACLU (after being presented with his new ACLU membership card) Snowden was asked what he wanted to come out of all the turmoil and disruption to his life.  Also what he aspired to. He responded:

"My main purpose was simply to allow the average American to understand the policies of his government, that he wasn't asked about. And to allow us, as a civil body, to decide if this was the right thing and the direction we want to continue in.....there's a danger when the government is drafting and implementing policies in the dark, without the input of the voting public. Even the full body of congress wasn't aware of these programs"

Asked then about the relevance of the Fourth amendment today in relation to the past, Snowden answered:

"I think the 21st century Fourth Amendment can actually be the same as the 20th century version, and the 19th century version and the 18th century version because it's written in such clear terms that it doesn't need to be rewritten. It's couched in language like "unreasonable search and seizure", right?  If we have a specific reason - if we have an oath or affirmation that there is probable cause to peel back and intrude upon the civil rights of a target individual. That's the traditional purpose of investigative authorities, whether it's a law enforcement or intelligence investigation.

But the two parts of which we have to keep in the 21st century are not only that unreasonable searches are prohibited - where the NSA can't go in and look at someone's information in the first place unless they have a suspicion for doing so.

It's not reasonable for the NSA to collect every phone call of every American...without  suspicion justifying it."

Co-author of the Patriot Act, Jim Sensenbrenner, supports Snowden's take, pertaining to Sec. 215 enfolded into the "FISA Amendments Act of 2008"  which ratified and expanded the warrantless surveillance program originating under Bush Jr. Sensenbrenner, in the same issue (op. cit. 'I Wrote the Patriot Act - Now Let's Fix It', p. 10) writes:

"Section 215 was intended to give the government the ability to secure "any tangible thing" connected to specific terrorism investigations. As is now common knowledge, the Bush and Obama administrations took the limited power Congress intended and went rogue. If we had known during any subsequent re-authorizations what we now know about Section 215's blatant misinterpretation, Congress would have allowed it to sunset.  And if it's not fixed by the 2015 re-authorization, Congress will.

The basic idea behind the American search and seizure law is that you can't investigate unless you can first provide at least some articulable reason to do so. Investigations just can't be arbitrary. The government's definition, on the other hand, is the very definition of arbitrary. "

Indeed, Snowden's revelations have shown us the extent of the NSA mass surveillance,  the arbitrary use of mass warrants and  discloses a rejection not only of citizens’ fundamental right to privacy but any right to be secure in one’s person, papers, effects.  Conrad Brumbaugh and all of his cohort would be outraged and want to take up arms again if presented with Snowden's findings.  He would assert there's little difference between the current excesses and the British Writs of Assistance.

Incredibly, despite this, the most recent insult is the finding by a recent report — produced by a five-person panel picked by the president  that the Section 702 program was important and "narrowly legal".  This, after the Privacy and Civil Liberties Oversight Board had more than 100 facts declassified, whereupon board chairman David Medine boasted at a press conference, for its report on NSA’s Internet surveillance program and how it used Section 702 of the "FISA Amendments Act". (Again, which validated the illegal warrantless surveillance of the Bushies)

Before anyone congratulates Medine, let's bear in mind that the PCLOB relied heavily on a report written by NSA’s privacy officer that purported to provide new information; even when NSA released the report in April, however, that report stopped short of reporting all the known details about the 702 program and as such read like a press release. Compounding this 'fox helping the henhouse' meme is the fact that Medine did not say what those newly declassified facts included, but there are a number of footnotes that refer to and describe still-redacted parts of at least one previously released report.   In addition, in recent days, the government has released a transparency report admitting that the government collected 89,138 targets under the Section 702 program, and released a report to Sen. Ron Wyden providing the numbers of “back door searches” various agencies conducted last year.

Anyone paying attention? Americans should be, especially now as the hysteria over the ISIS punks and wannabe jihadists ramps up, and which will likely be used for even more warrantless searches. All done to keep us "safe" of course.

But let's recognize that PCLOB's finding has been limited by the government’s own desire to pretend nothing Snowden released has been released. (Got that?) Given that there’s a copy in the public domain, there’s really little excuse for the government to hide the most current procedures (except, perhaps, to make court challenges to the program more difficult).

"NSA programs narrowly legal?' ROTFL! What discredits the PCLOB report are its claims that both Americans and non-Americans will be protected by a requirement the government tell criminal defendants if it uses Section 702-derived information against them. In fact, the government had never complied with this requirement until last year, simply ignoring that requirement of the law for five years. Worse still, when the ACLU tried to challenge Section 702, DOJ falsely told the Supreme Court it had been "complying with that requirement".  But it still hasn’t corrected that false claim. While true,  the government has started giving a few defendants the required notice, it has not given notice to all known defendants caught using Section 702. In fact, the two people named in its report (and one named in their earlier report) as having been identified using Section 702 never got such notice.

It is public and unclassified information that the government has not complied with a crucial aspect of the law. Not only did PCLOB not consider that non-compliance in its assessment of the program’s legality and constitutionality. But it claimed it had found no instance of deliberate non-compliance. 1984 anyone?  Where is Emmanuel Goldstein and his Newspeak expose when we need him?

It is long past time, given Snowden's revelations, Americans sit up and take notice on how their precious 4th amendment rights have been eaten away, especially on a day dedicated to American Independence.

Are Americans truly independent? Or are they ever more dependent on a metastasizing, national security "Pappy" state to keep them out of harm's way from them nasty jihadists....while their most basic rights become redundant?

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