Tuesday, June 11, 2013

Conflict between the Fourth Amendment and the Patriot Act

Open email to House Speaker John Boehner:

Dear Speaker Boehner,
Politico, an American political journalism organization, quotes you this morning as follows:
'House Speaker John Boehner (R-Ohio) on Tuesday called NSA leaker Edward Snowden a “traitor” and said his actions are a “giant violation of the law.”
“He’s a traitor,” Boehner said on “Good Morning America.” “The President outlined last week that these are important national security programs to help keep Americans safe and give us tools to help fight the terrorist threat we face. The disclosure of this information puts Americans at risk.”
     According to the Washington Post, you additionally said, “The disclosure of this information puts Americans at risk. It shows our adversaries what our capabilities are. And it’s a giant violation of the law.”
    You believe all of the programs detailed in recent days are legal and you been briefed on them.
You said Americans’ privacy is “absolutely” being protected.
“Every time that I’ve been in a briefing, nine out of 10 people in the room are lawyers there to protect the privacy of the American people”.
Director of National Intelligence James R. Clapper has also agreed with your position by saying that the disclosures have harmed America’s ability to hunt down terrorism suspects, and lawmakers in Washington have called for the extradition and prosecution of the former CIA employee [Snowden].

I have already written twice on this subject but had concentrated on the fact that based on case history, the surveillance program constitutes a violation of the Fourth Amendment of the Constitution. That is obviously at odds with what you said in the second paragraph above.
At the time of my previous writing the only information available was that Snowden had released information to the British newspaper Guardian concerning the seizure of Verizon phone records. We now have additional information that Snowden released information of a broader Internet monitoring program called Prism, which has the ability to retrieve large quantities of information from companies such as Google and Facebook.

  I now desire to take strong objection to your broadside attack on Snowden, calling him a traitor and a giant violator of the law.
In order to be a traitor in conventional terms, a person must have done significant damage to his country by revealing military or other sensitive information to foreign countries, who are ostensibly enemies. I don't see that in the present circumstances. Snowden only advised the world at large that the US government has been collecting [seizing] records [telephone information and possibly emails] on its citizens. Many of us have suspected this for some time and only now have confirmation. More importantly with respect to the "traitor" designation for Snowden, what possible advantage is that to a foreign enemy including terrorists? In fact, the collected information is so broad, that potential terrorists might take solace in the fact that the surveillance program has actually helped to hide the identity of real suspects. However, since I might be missing something, perhaps you and James Clapper might wish to enlighten me on how the disclosure of this information puts Americans at risk and how the hunting down of terrorism suspects has been compromised.

The US surveillance program finds its basis in the Patriot Act, which had the intention of controlling terrorist actions in the US. In effect, the Patriot Act reduced the liberties and rights of the American people. The question remains as to whether the Patriot Act is in itself unconstitutional, because of its contradiction with the Fourth Amendment of the Constitution. The argument goes on to say that if it there is a conflict between the Act and the Fourth Amendment, which should we follow? The Fourth Amendment is nebulous in current practicality, while the terrorist threat is considerably more real. On this basis, opinion seems to side with the Patriot Act. However, the Fourth Amendment to the Constitution exists and cannot be ignored.
Perhaps we are looking at this in the wrong way. Perhaps we do not need a direct conflict between the Fourth Amendment and controls on terrorism. Basically, the Fourth Amendment says that any warrants to investigate the personal records of individuals must have just cause of suspicion of an illegal practice by the owner of those records. In other words, no general fishing expeditions.
The problem with the present surveillance program of the Patriot Act is that it is too broad. It tries to cover areas of personal information, which are not suspect to illegality. It may be doing so because of the present Administration's ideology to avoid discrimination, which automatically destroys specificity.
If one were to search for gold, one would not take an ocean trip, search the seashore or check the Great Lakes. One would go to the mountains, for the simple reason that experience shows gold is found in mountainous areas. Similarly, it is ridiculous to search for terrorist prospects within the total general population. Experience shows that while there are a few homegrown terrorists, most of them have connections with foreign countries. Specifically those countries are Pakistan, Saudi Arabia and Yemen. We also know that almost uniformly terrorists are of Muslim religious persuasion. That religious designation also applies to homegrown terrorists, as we have seen in the recent Boston Marathon bombings. Knowing all this, it should be relatively easy and certainly much more efficient for the US government to be asking for phone and email records involving specific areas, such as calls to and from the known terrorist origin countries and to also be looking for keywords such as explosives, and Jihad in conversations. These are only off the top of my head, and probably several more could be considered specific to terrorist programs. Any warrants involving such specifics would be much more compatible with the Fourth Amendment
  With respect to the Fourth Amendment itself, it was intended to protect the American people from government. If government continues collecting completely general information on all of its citizens, that information can be used adversely to create a completely autocratic society, which the Fourth Amendment desires to avoid. Let us also remember that terrorism is not new to the United States. After the development of the Constitution and the Fourth Amendment, US citizens continued to be plagued by Indian raids on white settlements with ensuing horrible massacres. In spite of that, the fourth amendment was not renounced. Rather other methods were found to control that terrorist activity. Similarly, other methods not contrary to the Fourth Amendment can be used in controlling present terrorist activities.

1 comment:

  1. One other detail that is missing in accusing Mr. Snowden of being a traitor
    and that is the fact that our intelligence community routinely tells all to
    our enemies in sort of a gamesmanship similar to Chess when not actually
    fighting a war. The real enemies, other than in the Obama administration,
    probably have known all about our surveillance activities ever since the
    project was launched. Such a massive program would be most difficult to
    hide. So the real concern is letting the American people know about the
    program. What makes so many people concerned is the fact that we have a
    criminal administration that lies perpetually and has the obvious and stated
    goal of turning our country into a socialist state with few freedoms.
    Naturally, there is no justification to trust a government with 6 million
    employees, many who are low information and drunk with power. If there was
    a safe way question the abuse of power, I might agree that Mr. Snowden
    should be prosecuted for this disclosure, but again he likely recognized
    that we are dealing with justice Chicago style. What a tragedy for our
    country that the acts of our government have made us less safe while
    justifying violation of the 4th amendment. I certainly would not have
    violated my security clearance some 50 years ago even in a similar
    circumstance because of my agreement to not do so, but it is difficult for
    me to criticize the disclosure that is likely a violation of the 4th
    amendment. I know too many liberals who act as the anointed and believe
    that we should be closely regulated with whatever force is necessary to
    reach the unattainable goal of equal outcome rather than equal rights and
    relatively equal opportunity mitigated by a combination of our intelligence,
    skill, timing, and effort (work ethic). Unfortunately, the combination
    still will never equal consistent outcome, but opportunity will continue to
    exist. While not totally fair, it is more fair than in any other scenario
    where government is some degree of too powerful.

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