Friday, July 26, 2013

Remember When the 4th Amendment Mattered?

Mark this date and time, because Curmie is about to say something unlikely ever to be repeated: Louie Gohmert is on the right side of a controversial issue. Yes, really. And so are Doug Lamborn, Dana Rohrabacher, Mark Sanford, and Jim Sensenbrenner. Meanwhile, Tammy Duckworth, Steve Israel, Marcy Kaptur, Jan Shakowsky, and Louise Slaughter are wrong on this one. OK, could we just have one big chorus of “WTF?”

The issue at question was an amendment sponsored by two very different Michigan Congressmen: Justin Amash (above right), a sophomore Tea Party favorite, and John Conyers (above left), an old-school Democrat who was on Richard Nixon’s enemies list a decade before Amash was born. Strange bedfellows, and all that. What Amash and Conyers agree on—if on little else—is that the Bill of Rights, specifically the 4th amendment, is a good thing. Or, given the wholesale sellout of civil liberties by power elites of both parties, perhaps “was a good thing” would be the more apt descriptor.

You remember the 4th amendment, don’t you, Gentle Reader?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This simple and direct affirmation of individual rights, like so many other Constitutional guarantees, has been eroded if not annihilated by post-9/11 hysteria, the insidious PATRIOT Act, and fear-mongering pols of both parties.

In the wake of Edward Snowden’s revelations about the extent of NSA spying into the lives of millions of people who had done precisely nothing to arouse suspicion, Amash and Conyers introduced an amendment to a defense bill. Unlike the thousands of pages of turgid legalese that often characterize legislation, this amendment, barely over 100 words, is pretty clear:
None of the funds made available by this Act may be used to execute a Foreign Intelligence Surveillance Court order pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) that does not include the following sentence: ‘‘This Order limits the collection of any tangible things (including telephone numbers dialed, telephone numbers of incoming calls, and the duration of calls) that may be authorized to be collected pursuant to this Order to those tangible things that pertain to a person who is the subject of an investigation described in section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861).
In other words, you need a reason to gather private information on a law-abiding citizen. Stated otherwise, we have a right to be secure in our persons, papers, houses, and effects against unreasonable searches… That phrasing seems strangely familiar, somehow…

The amendment failed, of course, because the movers and shakers of both parties like power. All the “limited government” rhetoric on one side and the “civil liberties” aphorisms on the other are simply a load of crap for the majority of the politicians in Washington. The fact is, politicos in general like to exercise power, and they’ll defend their dubious claims to the legitimacy of these displays even in the face of obvious problems like, say, the fact that they’re freaking unconstitutional. There is consolation of sorts to be found in the narrowness of the margin, 217-205, and by the fact that party lines meant little: 57% of Democrats and 41% of Republicans voted in favor of Amash/Conyers. Indeed, the amendment would have passed if just half of the Democrats who voted against the re-authorization of the PATRIOT Act and also against this amendment had stuck to their alleged civil libertarian principles. Among those who didn’t: Nancy Pelosi, who is credited—if that’s the word—by Foreign Policy’s John Hudson with “[saving] the NSA surveillance program.” She was joined in voting for the NSA and against the people by such prominent Democrats as Steny Hoyer, Joe Kennedy, Sheila Jackson Lee, and Debbie Wasserman Schultz.

Let’s face it: Curmie voted for Obama twice, and—given the opposition—doesn’t regret those votes. But in the realm of civil liberties, the Obama administration has been absolutely as horrific as its immediate predecessor. And they did everything in their power, apparently, to prevent the amendment from even being brought to the floor. In one of the most notably ironic statements ever to emerge from a press secretary’s lips, Jay Carney actually urged defeat of the amendment because it is a “blunt approach [and] is not the product of an informed, open, or deliberative process.” As opposed to the laser-like focus and utterly transparent processes one has come to associate with NSA operations, one presumes.

Of course, the GOP leadership is just as culpable: they, too, tried to prevent a vote. And consider the list of leading Republicans who decided that neither small government nor the Constitution, hitherto their two most strident rallying cries, were quite as important as fear-driven oppression: Michele Bachmann, John Boehner, Eric Cantor, Virginia Foxx, Jeb Hensarling, Darrell Issa, Peter King, Steve King, Mike Rogers, and Paul Ryan, among others.

In short, as the New York Times reports, “Conservative Republicans leery of what they see as Obama administration abuses of power teamed up with liberal Democrats long opposed to intrusive intelligence programs. The Obama administration made common cause with the House Republican leadership to try to block it.”

Importantly, the Amash/Conyers amendment was remarkably modest in its goals: it didn’t seek to shut down NSA surveillance. It didn’t even demand that such intrusions into privacy should require a warrant (which would have been a better idea, but perhaps a bridge too far, given the curious blend of megalomania and paranoia which currently infects both parties). No: all the NSA would have needed to do was to be able to connect the dots, however tenuously, between a specific problem and a specific person before dredging up every detail of that person’s private communications. Not “probable cause”; some cause. Doesn’t seem an unreasonable hurdle. I mean, if Jim Sensenbrenner, the principal author of the PATRIOT Act, thinks we’ve traveled a little too far down the road of intrusion, perhaps—just perhaps—we ought to listen.

There’s a “Myth vs. Fact” sheet apparently coming out of Representative Amash’s office. Among its arguments:
The amendment does not defund NSA. It does not defund all NSA surveillance under the Patriot Act’s Sec. 215. It does not require a warrant for NSA to get Americans’ car reservations, hotel receipts, or telephone records. NSA does not even have to suspect that a crime has occurred. The amendment simply requires that there be a reasonable connection between the documents sought and the person under investigation. Far from blunt, the Amash-Conyers amendment is narrow and modest and is only a first step towards protecting Americans’ records from NSA surveillance….

If proponents of NSA blanket surveillance are right, if Americans lose constitutional protections when they make a call or send an e-mail, then any data stored in “the cloud” is fair game for the government without a warrant. Do we think it’s good policy to have every iPhone picture stored in iCloud subject to warrantless government confiscation? Is that reasonable?
Well, no. No, it isn’t. But the leadership of both parties seems perfectly fine with it… as long as it’s the other guy who’s being investigated.

The week’s events could represent a harbinger of things to come: a moment in time when libertarians of the left and libertarians of the right join to cast off the fusty devastation of Business as Usual in favor of a society capable of balancing legitimate national security issues with civil liberties. Or, more likely, they will simply ratchet up the iron-handed modi operandi employed by the Obamas, Pelosis, Boehners, and similar authoritarian jackasses. Keep those free-thinkers in Congress under control! Mustn’t let their interest in liberty interfere with our pet projects, after all.

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