Sometimes I wonder if our federal officials have ever even heard of the Constitution. According to documents recently obtained by the ACLU, prosecutors at the Justice Department have argued that they do not need a warrant to search through any personal email or social media, public or private.
The U.S. Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.
Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they’re not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.
The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena — a piece of paper signed by a prosecutor, not a judge — is sufficient to obtain nearly “all records from an ISP.” And the U.S. attorney in Houston recently obtained the “contents of stored communications” from an unnamed Internet service provider without securing a warrant signed by a judge first.
“We really can’t have this patchwork system anymore, where agencies get to decide on an ad hoc basis how privacy-protective they’re going to be,” says Nathan Wessler, an ACLU staff attorney specializing in privacy topics who obtained the documents through open government laws. “Courts and Congress need to step in.”
Like the rest of the bill of rights, the 4th amendment is as clear as a bell. Let’s review it:
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.
In other words, the government cannot simply rummage through or obtain your personal property (digital or tangible) in any way without a warrant. It’s really quite simple. Doesn’t it seem like Eric Holder would know this?
“We are at war” seems to be an excuse these days for nearly any instance of government misbehavior or illegality. It is generally acknowledged and accepted that during wartime, acts that would be unthinkable during a time of peace are easily excused. It is horrifying to reflect upon the bombing of Dresden, which claimed more than 20,000 lives, or the atomic bombings of Hiroshima and Nagasaki, which wiped over 150,000 souls off the face of the earth. In retrospect, we might question the wisdom of these attacks (Dwight Eisenhower, for instance, maintained that dropping the bomb on Japan “was completely unnecessary”), but most Americans generally believe these events, however horrifying the cost might have been, were essential to protect and restore democracy. The same holds true for the war on terror, in which a wide variety of government abuses are frequently justified with the old edict that “we are at war.” Perhaps the best way to combat this line of thinking is to declare, officially and unequivocally, that the war on terror is over. If the idea of ending the war on terror is advanced throughout the halls of Congress and the public at large, many of the issues we contend with today, such as the closure of Guantanamo Bay, the legal and moral complications of drone strikes, and the normalization of sweeping executive power, could lose popular support.
Although I almost entirely disagreed with this Atlantic piece on what drone policy dissenters supposedly “get wrong,” there was one salient point made:
As someone who has spent over two years in combat, I suggest that the main point of moral judgment comes before one asks which means are legitimate when attacking an enemy. The main turning point concerns the question of whether we should fight at all. This is the crucial decision, because once we engage in armed conflict, we must assume that there are going to be many casualties on all sides. When we deliberate whether or not to fight, we should assume that once we step on this escalator, it will carry us to places we would rather not go.
It is often said by advocates of the war on terror that the struggle to eliminate terrorism is a unique war without borders or, oftentimes, clearly identifiable enemies. But labeling the fight against Islamic terrorism a “war” is merely a rhetorical justification for the seemingly unrestricted powers claimed by the Bush and Obama administrations to, among other things, assassinate suspects without judicial oversight or even public disclosure of the suspect’s alleged crimes, imprison innocent people in torturous facilities indefinitely, and refuse to investigate high-ranking officials who literally adopted and implemented enemy torture tactics. Lawlessness now pervades much of our government and many citizens accept this as a necessary extreme to ward off terrorist attacks, which are about as likely to claim the life of a U.S. citizen as a bolt of lightening.
We’ve overreacted to the threat of Islamic terrorism to such an extreme and alarming degree that many of us now strain to remember the years in which one did not face the real possibility of being groped by security agents at airports or corresponding with friends without the knowledge that the conversations, like billions of others annually stored in government databases, might be monitored. And what of the terrified Muslim communities infiltrated by government spies? Or the innocent Muslim Americans subjected to physical and verbal abuse by any hotheaded fool who happens to pass them on the street? Or the Congressional hearings that regard nearly all Muslims as potential enemies? In our self-absorbed, self-righteous anger, we often forget that the primary victims of Islamic terrorist attacks are innocent Muslims. We’ve learned, as Robert F. Kennedy once said, “to hate and fear” Muslim Americans, often regarding them “not as fellow citizens but as enemies, to be met not with cooperation but with conquest.” It is not difficult to see that by degrading Muslims around the world, we have also degraded ourselves and our nation.
The sooner we roll back this war, the sooner we can restore our nation to normal, and the sooner we can go on living our lives without allowing a pack of murderers to forever disrupt them. In attempting to defend our “values” and our “way of life” from terrorism, we have too often destroyed those things ourselves.