Revisiting General Warrants — Contextualizing the Fourth Amendment.
The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!
~ William Pitt, Earl of Chatham (1763)
The history of colonial America is replete with incidents of abominable abuse of power by agents of the Crown. One of the most effective means of oppressing the colonies was through the use of Writs of Assistance, commonly known as General Warrants, which gave British officials a carte blanche to arbitrarily invade private homes and businesses in search of contraband and seize any property with absolute impunity.
James Otis, a Boston lawyer whose stirring denunciations of general warrants as a violation of hallowed natural law principles enshrined in the Magna Carta heralded him to prominence, regarded them as the "worst instruments of arbitrary power" because they placed the "liberty of every man in the hands of every petty officer" who "may control, imprison, or murder any one within the realm." Arguing before the Massachusetts Superior Court in 1761, Otis' articulation of the systemic despotism spawned by these writs foreshadowed the ideological origins of the Fourth Amendment to the United States Constitution:
A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire (emphasis added).
Widespread resistance to these much-reviled instruments of royal tyranny became one of the embers that sparked the Revolutionary War, which culminated in the codification of the Fourth Amendment as an enduring rebuke to the Crown's overzealous surveillance. Against the backdrop of generalized suspicion, the founding fathers inserted this provision in the Bill of Rights to prevent history from repeating itself. If a man's home is his castle, then the Fourth Amendment is the mortar binding each brick that makes it an inviolable bulwark against the prying eyes and ears of the government.
This embodies the fundamental truth — the chief characteristic distinguishing a free society from a tyrannical police state — that the individual's right to privacy and freedom from arbitrary invasions cannot be infringed, unless probable cause "exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found," Ornelas v. United States, 517 U.S. 690, 696 (1996). After having successfully prosecuted Nazi war criminals at Nuremberg, former U.S. Supreme Court Justice Robert Jackson eloquently reaffirmed the importance of this safeguard against unbridled governmental intrusion:
Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police (Brinegar v. United States, 338 U.S. 160, 180-81 (1949)).
Death by Attrition — From Public Safety to National Security.
And then came the "War on Drugs."
By blaming all of America's problems on drugs, Nixon's "tough on crime" rhetoric was portrayed as a necessary step to rid society of nefarious drug dealers and drug-related crimes, just like agents of the Crown sought to justify their abuse of general warrants under the guise of rooting out "smugglers" of tea and molasses.
But the hardline policies of Nixon's "law and order" administration, far from being an elixir in terms of stopping drug use or crimes, certainly initiated the process of slowly, but inexorably, eroding the fabric of the Fourth Amendment over the course of the next fifty years– from increased canine searches at "drug" checkpoints to militarized SWAT team raids of homes of "suspected" drug dealers, from vague drug-courier profiles that allow law enforcement to primarily target racial minorities to the malicious application of asset forfeiture laws to confiscate the life savings of the innocent. Sadly, however, the death knell for the Fourth Amendment was yet to come.
And then came the "War on Terror."
The collateral damage to our constitutional rights with the rise of the omnipotent national security state since 9/11 has eviscerated whatever remained of the Fourth Amendment.
Recently, two high-profile NSA whistleblowers, Thomas Drake and William Binney, have revealed the harrowing details of this Big Brother surveillance scheme that, in their own words, involves monitoring conduct not tethered to any suspicious or illegal conduct whatsoever, and creating dossiers on every American, be it senators, congressmen, or even generals. The technology of surveillance has evolved to a degree where the government is monitoring (in real time), collecting and storing vast amounts of data on every citizen — "every phone call, purchases, email, text message, internet searches, social media communications, health information, employment history, travel and student records." This has turned America into the most surveilled society in history, even more than the Germans under Hitler or the Russians under Stalin.
The twin wars on drugs and terror have coalesced to reenact the same state of generalized suspicion which, both historically and practically, is the enabler of a Soviet-style police state mentality. Such surveillance, moreover, is a throwback to the same conditions that the founding fathers rebelled against, and in violation of the same natural law principles enshrined in the Magna Carta– which predates the US Constitution– that James Otis so eloquently defended in his speeches and writings.
From Man's Castle to "Turnkey Totalitarian State."
More than thirty years ago, Senator Frank Church, the chairman of the Church Committee, after investigating the widespread abuses perpetrated by the FBI under the secretive and illegal COINTELPRO, forewarned the nation of the dangers of forsaking essential liberties for temporary safety:
"Th[e National Security Agency's] capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide. [If a dictator ever took over, the N.S.A.] could enable it to impose total tyranny, and there would be no way to fight back."
Arguably, this remorseless modern-day engine of surveillance — the electronic general warrant — has been turned against the American people. As we have now come to learn, the purpose of all-encompassing surveillance is not, as we were first told, to ferret out terrorist or criminal activity. Rather, the aim is to annihilate any sort of political opposition to the powers that be.
As William Binney, himself a target for speaking out against the illegal spying on the American people, states, "If you ever get on their enemies list, like Petraeus did, then you can be drawn into that surveillance." In such a scenario, Binney explains, the stored information on that particular individual — and remember, they have every conceivable piece of information on everyone — will be used to target, blackmail or intimidate that person.
Take the example of former high-level executive at the NSA, Thomas Drake, who upon exposing the government's blatant disregard for the Fourth Amendment, was charged under the Espionage Act (the case ended in an eventual misdemeanor plea bargain). In his own words:
People don't realize the extent to which we're surveilled in many, many ways. The extent to which vast amounts of our transactional data in all forms — electronic forms, your emails, your tweets, bank records and everything else — are all subject or suspect in terms of surveillance. It raises the specter of the rise of so-called "soft tyranny." It raises the specter of you being automatically suspicious until you prove that you're not; the specter of a universal and persistent wiretap on every single person [...] what happens if they don't like you? What if you speak ill will against the government? What if you say something they consider disloyal?…
Our security has become our state religion, you don't question it. And if you question it — your loyalty is questioned.
Speaking truth to power is very dangerous. The power elites, those in charge don't like dirty linen being aired. They don't like skeletons in the closet being seen. Not only do they object to it, they decide to turn it into criminal activity. Remember, my whistle blowing was criminalized by my own government (emphasis added).
After serving in the highest positions of power, Thomas Drake has now been forced to earn his livelihood by working at an Apple store. When society descends into collective insanity, when the apathetic masses fail to realize the dreaded consequences of empowering the all-powerful state with a blank check drawn against their own civil liberties, then the only people with the courage to speak truth to power are demonized in the most diabolical ways.
End Game: The Death of Privacy And the Technologies of Control.
"It would be ironic if, in the name of national defense, we would sanction the subversion of…those liberties…which make the defense of the nation worthwhile" (US vs. Robel, 389 US 258, 264, 1967).
The most common, and perhaps most deceptive, argument marshalled in favor of government spying is that if people aren't doing anything u2018wrong', then they should not worry about such surveillance. This u2018not-doing-anything-wrong' argument is a classic red herring, for if an individual is not doing anything wrong, then the government has no business spying on that person in the first instance. As detailed above, this is exactly what the Fourth Amendment was designed to prevent — a state of total generalized suspicion where every person is u2018guilty until proven innocent.' William Binney also refutes this argument by observing: "The problem is, if they think they're not doing anything that's wrong, they don't get to define that. The central government does" (emphasis added). In other words, a person's subjective opinion of u2018right' and u2018wrong' is irrelevant; what matters is that the government believes the person's actions are wrong.
Apologists for mass government spying also typically invoke the u2018necessary evil' doctrine — an old Machiavellian ruse — to justify this act. They argue that illegally eavesdropping on the populace, while not good in itself, is necessary to counter the existential threat terrorism poses. They claim that the methods of modern-day terrorism are brutal and unconventional, seeking to inflict mass casualties through horrific means; its nature is irrational, perpetrated by individuals who hold no fear of death in destroying others; its form is impenetrable, consisting of a shadowy network spread across the globe. The danger is ever present, threatening to strike anywhere, anytime. Consequently, the government must be able to exercise "all necessary means" to protect its citizens.
Such an argument, while tempting for the unaware, suffers from historical amnesia. The alluring language of "safety" and "security" has, historically speaking, always served as a convenient excuse for the executive to discard core liberties for the ostensible purpose of pursuing some higher purpose — in this case, "national security" — that renders all other considerations non-issues.
During times of emergency, the instinct of self-preservation naturally impels us to seek the direction of the powers that claim to protect us. The omnipresent fear of the unknown predisposes us to trust the government that assures security conditioned on an absolute grant of what John Locke calls "undoubted prerogative." The constant, unchanging, and ceaseless mantra of the power-elite is u2018trust us, and we will protect you from the barbarians at the gate.' The demand seems reasonable; its logic, impeccable. Destabilized by our collective vulnerability and driven by the spirit of patriotism, our inclination is to comply and surrender our rights.
This formula has forever remained the same; so too has the final result, which always stands in stark contrast to the initial promise. The now absolute authority that originally promised to safeguard our liberties uses that same power to subvert what it claims the threat seeks to destroy — our way of life and hard-won freedoms. The Orwellian nature of the scheme — selling u2018control' in the name of u2018security' — is slow to crystallize in our collective consciousness. We do, finally, grasp the the fallacy of rendering blind allegiance to absolute power, but it is already too late.
President Abraham Lincoln unilaterally suspended the writ of habeas corpus in 1861 under the pretext of fighting the Civil War because "public safety" required it, an order that resulted in the imprisonment of "disloyal persons" without any trial. President John Adams insisted that the Alien and Sedition Act was essential to protect Americans, but he abused that power by using it to suppress dissent in the press. Similarly, President Woodrow Wilson advocated for the necessity of the Espionage Act to save American lives, but he only used this law to prosecute thousands of American pacifists who spoke out against American involvement in World War I. In the same vein, President F.D. Roosevelt cited the exigency of World War II to pass Executive Order 90266, which he utilized to arbitrarily imprison thousands of innocent Japanese-American citizens. And finally, in the aftermath of the tragedy of 9/11, President George Bush assured the American public that the NSA's wiretapping program was only meant to identify and capture terrorists;
The modus operandi of this scheme of near-total surveillance of ordinary Americans is to streamline and perfect the technologies of controlling the gullible masses. This blueprint was designed a long time ago, long before 9/11 provided a feeble pretext. Elite insider and the founder of the Trilateral Commission, Zbigniew Brezenski, apprised us of this ultimate goal in his 1968 article America in the Technetronic Age:
At the same time, the capacity to assert social and political control over the individual will vastly increase. As I have already noted, it will soon be possible to assert almost continuous surveillance over every citizen and to maintain up-to-date, complete files, containing even most personal information about the health or personal behaviour of the citizen, in addition to more customary data. These files will be subject to instantaneous retrieval by the authorities (p.21) (emphasis added).
The founding fathers risked death in opposing the The King's general warrants. They rebelled against the yoke of monarchical despotism to establish a constitutional republic guided by the principles of separation of powers and checks and balances. Today, the executive wields electronic general warrants to spy en masse, or to target "enemy combatants" for assassinations as part of a "disposition matrix" without a shred of due process.
A man's home is no longer his castle, and we are all poorer for it.
Faisal Moghul [send him mail] is an attorney.