“Those who would give up essential liberty for security, deserve neither.” Benjamin Franklin
Ideals and philosophies certainly change when one’s position in the world changes. President Obama’s push to “double down” on data mining is disconcerting as well as frightening – particularly since he railed against these very techniques when Bush was president.
Our Constitution contains a Bill of Rights – granted it was added in 1791 a couple of centuries before current “invasive” technology was invented – but the concepts contained in its provisions are still worthy of protection. Unfortunately, the Bill of Rights is well on its way to obscurity in the area of the various individual liberties contained in several of its Amendments. Two of the primary amendments that protect citizens against unwarranted and unjustified and unsubstantiated government intrusion are the Fourth Amendment and the Fifth Amendment.
The Fifth Amendment clauses against self-incrimination and the requirement of a warrant based on probable clause are becoming increasingly useless in today’s world. The self-incrimination clause provides that one arrested and brought to trial does not have to take the stand to provide testimony against himself or herself. It focuses on oral testimony – not physical evidence. Even the mere mention by the State that the defendant did not take the stand can cause reversible error.
But, with the protection of the Fifth amendment limited to oral testimony, States for years have found courts willing to issue warrants that allow the prick of a needle to draw a blood sample, the insertion of a swab to invade the open mouth, or the pluck of a hair uprooted from a head to be used against defendants as evidence in courts of law. Thus, the self-incrimination aspect of the Fifth Amendment is rarely relevant today in criminal trials other than to call indirect attention to the fact that the defendant has decided not to take the stand.
The encroachment into the parameters of the Fifth Amendment warrants clause has now made its way into the realm of the Fourth Amendment by little-noticed and much-ignored forays using a secret court that issues secret warrants. The Fourth Amendment protects citizens in their persons, houses, papers, and effects against unreasonable searches and seizures.
Yet, one incident – 9/11 – has made the citizens of the United States into suspicious, shivering, anxious masses willing to trade protections found in our original Bill of Rights – those liberties fought for and secured by the giving of the ultimate sacrifice by our Founders – to gain a security that will never be assured.
After 9/11, President Bush and his Neocons went to work on Congress establishing an environment of trepidation based on a color-coded “scale of fear” – ups and downs on a regular basis informing the public of the dangers that loomed on the horizon and the image of another “big one.” One of the lesser known or scantly acknowledged “plans” was to reinvigorate a languishing secret court created through the original Foreign Intelligence Services Act of 1978 (FISA).
The secret court – the Foreign Intelligence Services Court (FISC) – was established to review requests for warrants to “obtain” information deemed necessary by the federal government to protect its citizens. The application process was set up as one-sided – no one else appears – only the government presents its evidence to support its request for issuance of a warrant. The government literally says this is what it wants and the FISC genuflects and grants the warrant – it is a rubber-stamp court.
Of the 20,000 requests submitted to the Court since 2001 – when the Patriot Act reduced the requirements for obtaining a warrant – only 11 applications have been rejected. Similarly, the court allowed the FBI to issue more than 140,000 National Security Letters since 2004.
This, then, is the judicial body into which Americans have placed their blinding trust – a court that lacks the spine to thoroughly review and make a rational decision as to issuance of its secret warrants – a court willing to rubber-stamp secret warrants because it cowers at the thought of an incident in which it failed to issue a request.
President Obama, who once criticized President Bush for these very tactics, has expanded the reach of spying to cover millions and millions of “data” which floats in cyberspace and resides in the records of various companies. Blanket warrants have been issued by the thousands with very little concern – or care – for their impacts
Americans have become so frightened of another attack – which will most assuredly happen given time regardless of efforts to stop it as was evident in Boston – that they are willing to sacrifice their most cherished liberties. Unfortunately, as Benjamin Franklin understood, giving up our liberties to obtain security demeans the very work that our Foremothers and Forefathers undertook to give us an open society – not a society based on secrecy and totalitarian methods.