Searching for What Matters

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.
 - United States Constitution, Amendment 4

There is great consensus that the 1765 case of Entick v. Carrington encouraged the addition of the Fourth Amendment to the Constitution.  Mr. Entick was critical of the King; he was suspected of having written documents so declaring which he hid in his home.  Henchmen, under orders of Lord Halifax, stormed into Mr. Entick's house, opened locked cabinets and containers and found what they sought: political speech - or, as it was known then, sedition.  Mr. Entick charged them with trespass - and won because the court ruled that the authorities could not act outside the law even when searching for information that could be related to state security.

But the law had broad parameters including Writs of Assistance: lawfully granted warrants based upon thin air granting customs agents the authority to search anything they thought might contain contraband.  Even before Mr. Entick won his case across the pond, Bay Stater James Otis argued that the Writs of Assistance abrogated British convention - that by issuing such instruments of arbitrary power, the government denounced its own principles of law.  A government that prides itself upon notions of liberty denies its very essence when it disavows the process and principles it put in place to guarantee fairness.  Surely, the warrant requirement has not outlived its purpose.  Indeed, the most recent iteration on the meaning of the Fourth Amendment in the age of electronic surveillance, cites and quotes Entick v. Carrington  in its application of the need for a warrant when the authorities seek to attach a global positioning satellite (GPS) to a private vehicle.

Apparently Congress missed the memo.  They have created and will continue to enforce for at least five years, "lawful" warrantless searches.  But not to worry - it only pertains to suspected terrorists...and the people they talk to...including investigative reporters...and telemarketers.  Some lawmakers are troubled by the possibility of targeting innocent law-abiding Americans if a tangential link could be made to foreign interests. Fortunately, high powered folks like the director of national security have assured members of Congress who had some concerns about general eavesdropping by the government that the law had "no loopholes".  Whew!  That is a relief.

It is not as though most Americans pay attention - or care - as some routinely discuss the most intimate details of recent colonoscopies on cellphones while getting a manicure for all the world to hear.  Which is exactly why these laws can get passed and extended and upheld even when they violate the Constitution; that really irks people who still care about individual liberty.  This matters not because most people are discussing illegal activity on or off the phone or because anyone wants terrorist attacks to occur.  It matters because we have gone into extraordinary debt and we continue to ask the bravest men and women among us to fight and die for freedoms we are, at the same time, ceding to our own irrational fears.  We are concentrating an ever more centralized government holding extreme power - including secret courts and far off prisons with detainees held for years without counsel or process reminiscent of, well, other places.  Reflection is important so that we do not engage in the tyranny from which we fought so hard to gain independence.

Leave for the moment the pivotal case regarding electronic surveillance where the authorities placed a tap on a public phone without a warrant in order to obtain gambling information - which is almost cute now - where the Court ruled that we have reason to anticipate the privacy of our personal conversations.  That is, if the government wishes to listen in, it must get a warrant .  This is, of course, the law of the land regardless of what Congress seems to think.  But, engage in the history of not just interception of conversations, but actual conversations and miscommunication, also threatened by this unregulated monitoring.  

123 years ago, a horrific massacre occurred at Wounded Knee where American soldiers murdered  hundreds of unarmed men, women and children based largely upon a miscommunication.  It was right about Christmastime when one Paiute elder had a vision of a Messiah returning to Earth.  In his version of the Second Coming, the white man vanished as the bison returned in abundance with the spirits of native ancestors establishing peace ever after.  One would be hard pressed not to dream that dream when promises had been broken, treaties ignored, and starvation supplanted bounty that had ever graced the beautiful land.  And, in dreaming, dance to bring the vision to life.  That Ghost Dance, along with a deaf man who did not understand a soldier's order to surrender his expensive rifle, somehow got lost in translation resulting in the brutal, unconscionable slaughter of a people and their dreams.  

Twenty of the soldiers who opened fire on unarmed civilians, including infants in their mothers arms, who then chased down those who fled and killed them in cold blood, were granted not just commendations, but Medals of Honor for "bravery".  This cruel salt penetrated the open wounds of all who survived, their descendants and all Americans who must struggle with our conflicted history of freedom and honor and truth and fairness.  And, it is not as though this was an isolated event: the Dakota War almost thirty years before was prompted by similar broken promises, treaty violations and mass starvation.  For the more than 1000 who surrendered in that incident, trials reminiscent of the Star Chamber ensued; 38 men were hanged in the largest mass execution in American history.  Congress then drove the Sioux people from their homes and abolished their sovereign lands.

This was our government of the people, by the people, for the people.  This was we the people who murdered in cold blood and called it heroism.  This was we the people who forfeited the rights of others to fair trials before hanging them.  We the people forgot our principles, our identity and our morality and in so doing unleashed horrors for which we have not yet begun to answer.  Now, we the people have declared a war on the abstract of terrorism and in doing so we are violating every single thing we claim to believe in...again.

While there is absolutely no correlation between Native American people and Al Qaida, the historical lessons warrant review.  There is no doubt that white settlers in the West, most of whom had no understanding of this history of the conflicts with Native Peoples, and virtually none of whom grasped the devastation that befell those who suffered from Congress' refusal to uphold treaties it pledged to honor, feared the threat of attack by various tribes.  Those attacks were very real; innocent people were killed.  But the approach to the problem was to annihilate populations of people, including women, children and the elderly, who did nothing wrong.  There was no concern for rights or principles or "American values" because fear governed.  When we abandoned our core beliefs for fear's sake, we acted in disgrace.  The effects of The Dakota War and Wounded Knee and the Trail of Tears and all of the other brutal, immoral and incomprehensible actions our country took when it tossed aside the rule of law are still with us today.  Yet we forget those lessons whenever fear takes hold.

There is no question that people today, most of whom have no understanding of the forces behind Al Qaida and virtually none of whom grasp the global and ideological doctrines that seem to direct the madness, fear the threat of attack by terrorists.  Those attacks are very real; innocent people die.  But, the remedy for tackling the elusive forces of terrorism is not to deny our own foundational principles.  In seeking independence from a monarch, we vowed to create and sustain fair laws for all people, making this promise real with the ratification of the Fourteenth Amendment.  Our universal preaching on democracy and autonomy is hollow oration when we ignore our own historical battles.

No tax, no shot fired into an angry mob, no Intolerable Act or single event sparked the American Revolution more than unreasonable searches and seizures.  So integral was the right to be secure in one's home, person and effects that John Adams wrote to Abigail commenting that the Declaration of Independence was born in the courts of Massachusetts in 1761 with the cases on the writs of assistance.  Not only does artwork grace the Massachusetts State House commemorating James Otis pleading against the writs, but our own Art. 14 provided the impetus to enlarge the Fourth Amendment from its initial mere prohibition of general warrants to the broader (though not as broad as Massachusetts') reach it would ultimately encompass: the government can gain access to search and to seize, but it must be reasonable, premised upon probable cause, and secured by warrant.  It is not too much to require our lawmakers to make laws that honor who we are, not who we fought against in order to become who we are.

So, it matters that FISA reaches as broadly as the writs of assistance.  And, it matters that, barring judicial intervention, it will remain so for at least 5 more years.  And, it matters that there are secret courts enforcing these general warrants.  And it matters that we have no idea whose conversations are intercepted and why.  And it matters that those who listen in may hear what they think is being said rather than what is being said.  And it matters that we abide constitutional promises as we are asking men and women to die for them.  And it matters that America embodies the open and transparent government it promises.  It is not enough to say we believe in principles; we communicate those beliefs in our actions.  If nothing else, we must remember that miscommunication has led to massacre before.  And it matters.