Nothing to Hide

The government is only spying on terrorists. If you have nothing to hide, you have no reason to oppose government spying.

Wrong!

Warrantless government spying is a government license to spy on anybody who opposes Administration policies.

Mike DeWine (R – OH). Lindsey Graham (R – SC), Chuck Hagel (R – NE), and Olympia Snowe (R – ME) have proposed legislation that would legalize the Bush Administration’s program of spying on Americans without a warrant.

Here are four senators who may be considered enemies of the Constitution.

Such a law would be in violation of the 4th Amendment to the U.S. Constitution, which says,

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.

However, we can no longer count on the Judiciary branch to uphold and defend the Constitution. The Bush Administration has specifically selected and the Congress has appointed judges based on a promise to turn their back on the Bill of Rights.

However, as I said in the past, this blog does not concern itself with what the law does or does not say, but with what the law should and should not say. I have argued in the past that the 4th Amendment to the Constitution was not a mistake and provides important safeguards. A just society would have to incorporate the principles contained within the 4th Amendment into its laws even if such an Amendment did not exist.

We can see this in potential for abuse that the legislation that these anti-4th Amendment senators are trying to pass.

According to the Los Angeles Times:

Investigators would only have to prove probable cause to themselves, never to a judge or outside agency. After that month and a half, the warrantless surveillance could continue if the attorney general insisted that it was necessary to protect the United States.

This is effectively the same as saying that probable cause is not required, because anybody can demonstrate probable cause to themselves under any and all circumstances. Hitler certainly did not lack a belief that he had probable cause for everything he did.

One objection to be raised against this legislation concerns the question, “Who counts as a threat to national security?” Members of the Bush Administration have explicitly said that anybody who says anything negative about the Bush Administration is giving aid and comfort to the enemy. In the 2004 campaign they said that if the Democrats got elected, America would be less safe. Certainly, electing or supporting Democrats was considered a threat to national security. So, what prevents the Administration from saying that it has probable cause for spying on anybody who supports the Democrats or on any Republican who does not toe the Administration line?

Judicial review is not meant to prevent the Administration from spying on suspected terrorists. It is meant to prevent the Administration from employing a philosophy against all political opponensts of, “If you are against this us, then you are against America.”

The Bush Administration has demonstrated that it is thoroughly infected with this, “For Bush or against America” way of thinking. Recall that the NSA spying has never had any oversight, and nobody but the Bush Administration itself knows who they are really spying on, or why. This legislation will keep it that way.

It makes one wonder whether the Bush Administration is using the information it gets from spying to manipulate its political allies and opponents? I am not saying that they are, but I am pointing out the fact that authorizes spying without oversight makes it easy for the Administration to do such things. The potential for abuse is criticism enough.

Where the Attorney General gets to privately authorize spying whenever he sees a potential threat to national security, we must realize that the Attorney General is appointed by the President. In this case, Gonzales seems to think that it is his job to justify whatever the President wants to do. He has twisted the definition of torture in such a way that American interrogators can question prisoners sometimes to death without this being called torture.

This is the same attorney general that has already defended the unlimited power of the President to do whatever he pleases in his position as Commander in Chief, powers that include the right to kill people at will without trial, as I wrote about in “The Right to a Fair Trial”

Under this legislation, the only thing any President needs to do is to appoint an attorney general who shares the philosophy, “Anybody who is against the Administration is against the United States,” at which point criticism of the President becomes ‘probable cause’ and the critic becomes a target for government spies.

Nothing to Hide

The claim is that, “If you have done nothing wrong, then you have nothing to hide and should not care if the Bush Administration is spying on you.”

This only makes sense to somebody who has fallen into the trap of thinking that the Bush Administration is morally perfect in everything that it does, so that “against the Bush Administration” becomes synonymous with “wrong”.

What a person might want to hide from the Bush Administration may be the fact that he does not agree with or support the Administration's position on some issue. He may oppose a plan to allow an Arab country to unload shipping in American ports. He may oppose the Bush Administration’s plan to let India have an unlimited stockpile of nuclear weapons. He may be a part of an international organization working to fight global warming, or some other environmental cause that the President opposes. He could be a newspaper reporter tracking down a story that the Administration is taking American citizens off of the street and locking them up in a secret foreign prison.

These are the types of activities that a right to privacy (a right against warrantless government searches) protects. What it all boils down to is a right to think that the Bush Administration is mistaken on some issue, and to take steps to (peacefully and legally) oppose the President on that issue.

Even if a person believes that the Bush Administration is and must always be considered the model of moral perfection, there is still a right to believe otherwise – a right that an unlimited Administration power to enforce the doctrine, “If you are against this Administration, then you are against America” makes no room for.

Significance

I also fail to understand what these four legislators think this law will accomplish. To any degree that it contains limits on Presidential power, the President will merely issue a signing statement saying that he will interpret this law in a way that is consistent with his own view that the President’s power cannot be limited by Congress.

Recall what Bush did to the proposed limit on torturing prisoners. He issued a signing statement that stated that he could ignore this law if he felt that it was important to national security (meaning "important to protecting and preserving the unlimited arbitrary power of the Bush Administration"). So, at the same time he signed the law, he made it impotent. He will do the same to any limits on his domestic spying program.

Furthermore, this legislation will replace an earlier FISA law that the Administration is already ignoring. What makes anybody think that an administration that ignores a law will not also ignore its replacement?

Yet, this legislation is still important. Hopefully, someday, we will once again become a nation of laws instead of a nation of men. Someday, we will once again require that our Presidents obey the law and shun anybody who believes, “It is not illegal if the President does it.” When that time comes, we will need to have good laws, and this legislation is not good law.

Conclusion

Osama bin Laden cannot take away our freedom. He may be able to destroy a few buildings and kill a few people, but only our own government can destroy our freedom.

The principles behind the 4th Amendment are essential for a free country. They help to protect the right to disagree with those in power. Without the protections embedded in the 4th Amendment, the Administration can target anybody who expresses an opinion that it does not like. There has to be limits on the government. People have to be able to say, “I disagree with the President on this issue, and I am going to work politically to fight this program,” without becoming a government target.

This does not say that the government has no power to spy on terrorists. This only says that if the government is going to do any spying, then it must prove to an independent 3rd party – a judiciary branch – that it has probable cause to believe that the people it is spying on really are terrorists, rather than people with legitimate complaints against the Administration’s policies who are seeking legal ways to change those policies.