Who Gets To Make The Call?
The latest Wiki-leak reminds us: "If you don't step up, then you're doomed to be stepped on."
IF THE GOVERNMENT or its courts don't respect your rights, does that mean that you don't have them? Or is it within the purview of the government or its courts to decide what rights you have, and therefore to authoritatively determine whether yours are being respected or not?
If the government or its courts refuse to obey the Constitution, does that mean the Constitution is not the law? Or are the government and its courts the proper authorities to decide what the Constitution requires of them, and therefore to determine whether they are obeying it or not?
If the government or its courts treat words of the law as meaning something they don't say and demonstrably didn't mean when they were written (or as not meaning what they DO say), do those words then actually not mean what they say? Is everyone supposed to respectfully say, "Gee, I would have thought... Oh, well. Guess I was mistaken..."
I COULD POSE THESE QUESTIONS on a daily basis in regard to news from Washington and various state capitals with equal relevance. Today it is the latest Wikileaks whistleblowing that prompts these reflections.
Last week the heroic exposé organization revealed that the CIA has been engaged in an utterly despotic and downright psychopath-creepy spying program involving invasions and data-seizures--or efforts to become capable of invading and plundering-- of and from every smart-phone in America (as well as other places. The program even goes so far as to involve hidden remote switch-ons of "smart"-TV microphones for the purpose of surreptitiously recording conversations in the homes of anyone with a susceptible device.
Understand that these are not tools needed for conducting legitimate, warranted surveillance. Any legitimate, warranted surveillance has no need of broad, indiscriminate capabilities.
Legitimate, warranted surveillance is accomplished by the narrow application of court-approved, target-specific equipment or other tools. Broad, indiscriminate capability is only necessary for conducting broad, indiscriminate surveillance without authorization.
Further, the CIA's program pre-emptively-- and without the knowledge or approval of any court or any cause whatsoever-- puts its ears in everyone's house. This is done through a deliberate deception practiced upon every consumer, not one of whom would knowingly purchase the compromised device (or one capable of being compromised).
The program pre-emptively imposes nakedness upon a broad swath of people on the proposition that no one will look. We are to imagine that the saintly and law-respecting folks who work at the spy agency will forbear looking and listening through these pre-installed peepholes without gaining probable cause to do so in some other way, and then seeking and getting permission from an institutionally-skeptical higher authority.
The rationale and the mythology supporting it are bs on stilts. There is no valid purpose for a program like this; the program's offense is complete before and without regard to whether anyone is actually spied upon. In its pernicious essence, this program is indistinguishable from chipping everyone like a dog.
BUT HEY! It's the government doing it, so that means it's legal, right?
What's more, this panopticon program is of the same character as the broad, hoover-it-all-up NSA surveillance that has been approved in its indiscriminate darkness by the FISA courts and a couple of select congressional committees and the last several presidents, too. So, again, it must be what the law allows, right?
Well, that's actually going to be the unspoken functional conclusion, or underpinning, of most of the discourse concerning the CIA peep-hole program. Some talk of the Fourth Amendment will take place but it won't amount to much, because too many Americans abdicate their power and responsibility and answer "Yes" to those six questions with which I began this commentary. I hope you won't do that.
I STRONGLY urge everyone to instead complete the picture I'm painting with a careful read-through of the short and straightforward study found here. I urge you all to recognize that what you read there is 100% fact.
I also urge you all to understand that what you read there is utterly unknown by pretty-much 100% of the lawyers who take on Fourth Amendment violations. More to the point, what you read there is utterly unknown by pretty-much 100% of the lawyers who don't take on Fourth Amendment violations, even when they have happened, because they don't know this material
and therefore don't know that a violation has occurred.
The reason for that latter problem is that lawyers, more than any others, are conditioned to the rule-of-law-crushing habit of deference to government and its courts as the determiners of what is and isn't the law. Lawyers are trained to answer "Yes" to each of the six questions with which I began this commentary.
So, being victims of bad habits and deep conditioning, lawyers don't generally look past what the government and its courts have said when forming their own opinions of what is and is not actually the law. It's up to the rest of us to know the truth and set these folks straight.
The exposé of the CIA's pernicious panopticon program offers a great chance for accomplishing that virtuous educational task. Send this material to everyone that you know, especially "public interest" and "Constitutional" law firms.
Remind these folks of a truth Thomas Jefferson articulated on all our behalf:
"A free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate."
BTW, there isn't likely to be a judge in the country who knows the truth about the Fourth Amendment any more than the lawyers do. Nor are there any journalists who know it, even though the Fourth Amendment and the government's various illegal search and seizure practices will be the subjects of much scribbling for a while now, as it has been many times before.
The judges may not be very accessible for education except when cases begin being brought before them by lawyers who have become able to knowledgeably brief the subject. But journalists can be made aware just from having an ear to the ground, if the ground has a bit of a knowing buzz going on. You can make that happen, if you'll do some buzzing.