When your government, one that is supposed to be of the People, by the People, and for the People, appears to violate the Constitution and invade the privacy of the People without probable cause, should you really just trust them when they can just say they can’t tell you exactly what they’re doing because it would harm national security? Especially when, most of the time, they are not required to prove to any judge that national security really is involved? And this is despite the fact that when the Supreme Court ruled that the government can invoke such a privilege (it was not the first time it was used, simply the first time the Supreme Court said they could do it), they stressed that the decision to withhold evidence is to be made by the presiding judge and not the executive. Unfortunately, judges generally defer to the Executive. This is a bad idea. The government doesn’t always tell the truth, which is what happened in the very case that led to recognition of the state secrets privilege. “In 2000, the [withheld classified information from the 1953 case was] declassified and released, and it was found that the assertion that they contained secret information was fraudulent.” So the right of the government to claim that information shouldn’t be released because it contained details whose release might be harmful to national security was based on a case where the government lied and said the release of certain information would be harmful to national security when it really wouldn’t. Doesn’t that mean they can keep anything they want secret just by invoking “state secrets,” even if it doesn’t really apply? How do you convince a judge to look at the information and challenge the government’s claims?
We recently learned that our government has been collecting “telephony metadata” on every phone call made by Verizon customers (and let’s not assume that it only applied to Verizon customers) for several years now. It is important to note that they stressed that it was important to note that they were not listening to the phone calls themselves, nor were they recording the calls so they could be listened to later, and that they were only collecting the phone number of the caller, the phone number being called, the time of day, the length of the call, and possibly the location of the parties involved (! emphasis mine). Here’s why I’m concerned (from the second link):
“But civil liberties lawyers say that the use of the privilege to shut down legal challenges was making a mockery of such “judicial oversight”. Though classified information was shown to judges in camera, the citing of the precedent in the name of national security cowed judges into submission.
The administration is saying that even if they are violating the constitution or committing a federal crime no court can stop them because it would compromise national security. That’s a very dangerous argument,” said Ilann Maazel, a lawyer with the New York-based Emery Celli firm who acts as lead counsel in the Shubert case.
“This has been legally frustrating and personally upsetting,” Maazel added. “We have asked the government time after time what is the limit to the state secrets privilege, whether there’s anything the government can’t do and keep it secret, and every time the answer is: no.”
That’s not how our country is supposed to work. We’re not supposed to have a Constitution that defines and limits our government’s powers, but then decide we’ll ignore it when it gets in the way of doing what we want to do. If you want to do a search on private information without a warrant and without probable cause, then amend the part of the Constitution that says in order to do a search on private information, you have to have a warrant and you have to have probable cause. And if you read the Constitution (which I know many Americans have not, as evidenced by what we’ve seen at Tea Party rallies), you will find that the only mention of secrecy in our government is to the part of each House of Congress’ daily journals they think should be kept secret. It mentions nothing about Executive Privilege, or state secrets, or even of any right of the President (or Vice President) to hold secret meetings and keep the advice of the unnamed guests secret. People (and by the term “People” I’m generously including Justices of the Supreme Court) seem to forget that the President of the United States, for all the power we give that office, is a Public Servant. So any advice given to the President, by anyone at all, that concerns what might be in the best interests of the People ought to be both available to the public and actually in the best interests of the people. Otherwise, the President is not being a servant of the public but a servant of a private interest, and this can not be allowed. But in order to make sure that isn’t happening, we have to have access to what was discussed in those meetings. [Discussions with military personnel would be an obvious exception, but only because the military personnel would be addressing their Commander in Chief, and would not be having domestic policy discussions.]
The argument that if you’ve got nothing to hide you’ve got nothing to worry about is a ridiculous one because that isn’t the point. The point is that our Constitution clearly says that not only do you have a right to be free of unreasonable searches and seizures, but that if they want to begin one, they have to get a warrant, supported by oath or affirmation, and “particularly describing the place to be searched, and the persons or things to be seized.” (The Constitution is unclear on whether the search they can now conduct can be an “unreasonable” one. If the TV shows I’ve seen showing cops cutting open furniture, spilling powders on the floors and tables, and emptying anything that might be a container are in the least bit realistic, then it seems they are then allowed an “unreasonable” search.) So who gave the FISA Court judge a statement under oath or affirmation that says it’s necessary to know what number was called from your phone, when the call was made, how long it lasted, and where the two of you were when the conversation was taking place? The authority to conduct any such search is supposedly granted under the USA PATRIOT Act, but that law, if you know what the letters mean, is about tools for fighting Terrorism. Is there some reason the government should have the idea that you’re a terrorist? Then what business do they have keeping track of how your phone is being used?
A line from the following was the inspiration for the title:
This is our daily open thread. Feel free to discuss government surveillance or anything else that keeps you up at night.