I have 24 years (some broken time) in the Marine Corps – about equally split between Active and Reserve – Other Government service, and I’m a fairly patriotic guy. In fact, it would be no exaggeration to say that I love this country and have been (at various times in my life) willing to spend my life in its defense.
Now, let’s also get the caveats out of the way. The US hasn’t been invaded. I wasn’t “defending the borders” with my very last breath. But whether it was off the coast of Bosnia in 1995 as a helo pilot on the USS Kearsarge or being on the ground in Afghanistan 10 years later, I viewed both of those conflicts as reasonable exercises of our national power – even though I voted for neither of the men in the White House who commanded each of those operations.
That all as givens, I have to say that it might be time for some serious action on this NSA thing. And I say that with all due respect to the good nerds at No Such Agency – some of the work they do is downright essential to the country’s national security. But the US government is just running roughshod over the Fourth Amendment. I mean, it has been flat-out ignored, trampled, eviscerated, and all-around used by Congress and the President to wipe their collective asses.
And We the People, of the United States of America, the same collection of people who fought the greatest army in history (at the time) with “Minutemen” and other Irregulars, over taxation, have gone quietly into that good night while the US government does even worse than anything the British ever did in the late stages of the eighteenth century.
Lest this seem melodramatic, let me first tell you about the Fourth Amendment (a bit). As both a former prosecutor, and defense attorney, both in and out of the military, I have a bit of a penchant for that particular Amendment. Take my word on it for now and let’s just puzzle over this: electronic mail has largely supplanted regular mail (note the nickname: “snail mail”) for a LOT of the services that regular mail used to provide. This includes both the personal and the commercial.
How many of us really have returned to the letter writing of our youths? If you’re into your 40’s like I am, you can well remember how to address an envelope because you learned it in the first or second grade. It was mandatory. Because that was how you could communicate with someone on the other side of the country: through periodic correspondence, with a quaint lapse in time of a few days.
Better telephone service helped kill some of the letter writing, where the lag in time for anything important would justify a phone call, even a long-distance one. And I’m talking about when long-distance service was expensive! Dialing “1” before the number had serious consequences – at least in my house. Kids did not make toll calls.
Electronic mail has all but obliterated it. There’s just no reason to do it, other than the tactile sensation of writing on good stationary with a fine pen, and the novelty (now) of getting a letter from someone. These are sufficient reasons to justify the continued anachronistic use, but the numbers bear me out. Every year since 1997 the number of “stamped cards and postcards” the USPS sends has gone down. To the point where in 2013, the same year when the US population reached 316.5 million, we sent the lowest number of stamped cards and postcards (1.05 billion pieces) that we’ve ever sent since the data is available – which dates back to 1926. The closest we ever came to that low was 1932 – 1.44 billion pieces. Just before the internet and electronic mail arrived and became widely used, by contrast, as a country we had been steadily creeping up on – and even passed – 3 billion stamped cards and postcards in 1995 and 1996. Now it is one-third of that.
We buy things on Amazon. We get the receipts emailed to our inboxes. The gear gets shipped to us physically.
Video killed the radio star.
Okay, wonderful bit of nostalgia and trivia, but what the eff does that have to do with the Fourth Amendment?? Well, imagine if I told you that the federal government in 1933, or 1953, or 2973, was intercepting not just some particular person’s mail, but the US government was intercepting and reading every single piece of mail that anyone sent to their loved ones – their relatives, their kids, their lovers – and their doctors. Their lawyers. Their priests and rabbis, their dying mothers and fathers. What if you read in U.S. history that the Government, OUR Government, had a program that intercepted every letter that every legally innocent, completely un-criminal, utterly innocuous, but private communication you or anyone you knew had ever sent and then decided at their leisure whether they would read it or not – regardless of whether you were ever suspected of any crime? How disturbed would you be to read such a thing?
Welllll, I have some very bad news for you, then.
What will our children’s children say about this era when government – and the meek, timid, un-patriotic, lazy slugs who spoke not a peep after a whistleblower pointed out that just such a program existed – that it was not only open, but flagrantly done, with the aid and consent of federal judges, in secret courts, set up by secret statutes, and justified by all manner of national security reasons (for our own good).
I swore an oath to defend the Constitution against all enemies, foreign and domestic, an oath I took on my sacred honor, and yet here we stand.
I will publicly debate anyone who claims that this isn’t a blatant violation of the Fourth Amendment, with citation to case law that stands as the very foundation of the country’s Fourth Amendment jurisprudence. And I’ll even show you where modern courts lost their way, starting with Griswold v. Connecticut’s creation of a right of “privacy” – which danger was presciently pointed out by Justice Hugo Black in dissent. Later, in Katz v. United States, 389 U.S. 347 (1976), a concurring opinion about “reasonable expectation[s] of privacy” would later become enshrined as “law” and it was only a matter of time before, as the late, great Justice Black noted, that term would be “expanded or contracted” as government could convince courts to do.
“Privacy” is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures.
And so Griswold prohibited the Connecticut state (and Federal) government from making contraception a crime, yet it became the lynchpin that now allows the government to read all of our most intimate thoughts, including texts (or sexts) to our intimates. You think I’m making it up? A review of the “reasonable expectation of privacy” jurisprudence shows one consistent theme: un-elected, virtually unimpeachable, life-tenured lawyers- er, judges – have now decided that it’s not either subjectively or objectively reasonable for you to expect your phone, wireless, or internet carrier to protect your personal information – even though they’re acting as your paid agent and have other legal obligations to protect your personally identifiable information. In other words, you can sue Target for losing your personal information to a third party if its computers get hacked – but you have no Fourth Amendment claim when they turn it over without a warrant to the Feds.
The Supreme Court, our Executive, and our Representatives, have utterly abandoned their oaths to the Constitution. It is embarrassing how bad this is.
And here we all sit, while our own government sifts through everything I write, everything you write, everything we all write, and even monitors our phone calls when it wants – all without even so much as a glance at either the particularity requirement of the Fourth Amendment, much less the triggering, foundational requirement of the Fourth Amendment, that their be some level of suspicion of criminal activity before we allow the government to just mass sort through my private letters.
I’m not sure where the patriots are in this country any more, but it is time to do something to make this stop. If Snowden’s revelations aren’t enough to get us up off our dead asses, we have nothing about which to complain when they start censoring our speech. We can’t say that we didn’t see it coming. They’re not even trying to hide what they’e doing. They’re just telling you to be good little children and let the adults tell you what’s good for you. No need to worry about things like civil liberties – there’s a “Global War on Terror”* going on. I for one, with my time in the military and (allegedly) the right to keep and bear arms, would like to opt out of the police state. I’m perfectly capable of caring for me and my own and until police learn how to detect future-crime (like in Philip K. Dick’s “Minority Report”) they’re unlikely to be present when the actual crime occurs anyway, unless I’m extremely lucky or a criminal mugs me in front of a police station.
Your move, America. I’d recommend you start asking some hard questions and if you don’t get the answers you like, you start throwing some people out of office. Then I’d start talking about term limits and some other important Amendments to the Constitution, so that those people who are systematically depriving you of your liberty know you’re serious.
Otherwise, just give up and admit you no longer want to be free and you prefer having a benevolent watcher, something perhaps even worse than what Orwell imagined for Big Brother.
I’ll be over here trying to start a Revolution.
* I have often remarked that one of the stupidest things we have ever done is declare a “War on Terror.” I wasn’t aware that we were going to war to defeat a tactic. Should we also declare a “War on IED’s?” Because that’s killed a fuck-load more of my compatriots in arms than “terror” has. Maybe we could declare a “War on the L-Ambush?” Those things are no good if you’re in a convoy, either. This war on a tactic has been the justification for more government abuses (Hello, Patriot Act??) And are you fucking kidding me with these names?! Does no one in the DoD or Congress have any fucking shame or sense of irony??