The fact that the FBI searched and removed items from the office of a Congressman's office seems to have gotten some people in the House of Representatives upset. It appears that they are demanding something of a right to privacy – a right to be secure in their persons, houses, papers, and effects.
It turns out that they do not even want to allow reasonable searches and seizures upon probable cause. This was a case in which the FBI first used a subpoena and went to a warrant only after Jefferson ignored the subpoena. Democratic and Republican lawmakers alike are united in a rare bipartisan campaign of indignation over having officials of the Executive Branch of government violate their office space.
These are the same people . . . some of them . . . who had spent months telling us, "If you are not doing anything wrong, you should not have anything to hide?" According to what we have been told as the government pries deeper and deeper into our lives, and collects an ever growing database on each of us (adding phone records to its database of tax records), the government is only after criminals. If we are not criminals, then we should not be worried about the fact that the government is going through our stuff. Should we not then say to these legislators, “If you are not corrupt, you should not have any objections to the FBI coming in and grabbing your records?”
Am I sensing some hypocrisy here?
Here, consistency requires that I use some caution.
I have objected to the argument, “Only those who have something to hide should be worried about these searches and seizures.” I argued against this on the basis that none of us get to decide for ourselves whether or not we have something to hide. I mentioned cases in the past where having a Japanese parent, being a runaway slave, being somebody who aided in the escape of a runaway slave, being a member of the Communist party, or being a friend of somebody on President Nixon’s enemies list all counted as being something to hide.
To an intellectually responsible person, an invalid argument is not to be used even when it supports a desired conclusion. (To a partisan hack, on the other hand, moral constraints are for the weak and foolish.)
What we need is a set of universal moral rules that we can apply to everybody. We can then hold actions and policies up to the light of these rules and use them to say "these actions over here violate the rules, and those do not.”
To investigate what these rules would look like, let us look at the relevant concerns at stake.
Why would non-corrupt legislators be worried about other people – particularly people who work for the President -- going through their stuff?
It is because their stuff probably contains a lot of notes having to do with political strategy. They probably say things about deals being brokered behind closed doors, and ways in which they are trying to get their own favorite piece of legislation through the mill. If others are aware of these plans, then others have the ability to block those plans to command a higher price in trade. Even honest legislators have good reason to fear this type of information getting out to the public.
Imagine a state in which Vice President Cheney or Karl Rove can call up the head of the NSA and say, "Send me a list of every phone number that Senator Russell Fiengold (D – WI) has called or who called him in the past five years.” Authority comes from the President who gets to be the decider in terms of what counts as a matter of national security, and he decides that this counts as a matter of national security. After all, Feingold voted against the war and is apparently more than willing to let the terrorists walk right into this country with their weapons of mass destruction. Stopping the terrorists means stopping Feingold, so Cheney gets his list.
At the same time, Gonzales is walking around Washington DC reminding everybody that if they leak any information on this war on terror that they, and the reports they talk to, can be prosecuted.
On the surface, this type of abuse of power is something that we have reason to want to avoid.
At the same time, it seems reasonable that authorities who are investigating criminal acts should have access to the documents that are relevant to those actions. Legislators should not be able to hide murder weapons in their office, or illegal drugs or stolen merchandise or embezzled cash, and rest comfortably that the FBI can never come in and get it.
A reasonable suggestion for dealing with both of these concerns suggests the following rules:
That each member of the legislator shall enjoy the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 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.
That is to say, the FBI has to go to a judge. They have to tell the judge exactly what they are looking for and their reasons (probable cause) for thinking they will find it in the congressman's office. If their claims are convincing, the Judge authorizes the search and the FBI can then search for, find, and remove the items on the list. All the while, judicial oversite is used to make sure that the information collected is not used for illicit (political) purposes. The information is strictly kept in the hands of those who are using it to prosecute an alleged offense.
Let us go ahead and apply these principles to everybody. Let us have a Constitutional Amendment that says something like:
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.
Instead, we get something entirely different.
The Congress has protested loudly enough and efficiently enough that, today, President Bush ordered that Jefferson’s materials be sealed for 45 days while they work out the legal issues.
I wonder what it would take to get the President to order the NSA database of all of our phone calls to be sealed while the legal issues are looked into.
Clearly, the legislative branch has the power to force such a concession from the President. We can only assume that they lack the will to do so.
I see, in this, an excellent opportunity for the Legislature and the Executive branches of governments to work out a perfect deal to their mutual satisfaction. The terms of the deal would go something like this:
Congress agrees to allow President Bush to have unlimited authority to spy on the American People (not including Legislators) without investigation or limitation. Bush can collect all of the information he wants on all of us. In return, President Bush agrees never to allow the FBI to search for evidence of wrongdoing on the part of legislators, even when an order is issued by a federal judge convinced of ‘probable cause.’
In short, we, the people, and our Constitutional Rights, are killed and offered up as a religious sacrifice to His Majesty, King George so that the Legislators get stronger immunity from criminal prosecution.
Sounds like a perfect poltiical solution, does it not?