On September 11th, 2011 President Bush addressed a very shaken and frightened America and said these now famous words: “A great people has been moved to defend a great nation. Terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America. These acts shattered steel, but they cannot dent the steel of American resolve. America was targeted for attack because we're the brightest beacon for freedom and opportunity in the world. And no one will keep that light from shining.” At the time, these words were comforting and, since that time, many politicians and even a new President have repeated these words in their own tongue. No matter the words used, the message was the same: America will not bow down to terrorism. These words make people feel good and, most importantly, these words make people feel proud of our great country. In fact, it’s these words that drive young men and women into the fog of war to not only defend our nation from those who want to do it harm but also, to stand up and protect the very freedoms and liberties spelled out in our Constitution.
Words can be strong but actions are even stronger and last week, the actions of our government proved, without any ambiguity, that the terrorists have won. America has bowed down to terrorism and accepted the reality that the terrorists have created for us: a reality that is built upon paranoia. The FBI defines “terrorism” as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives”, and if the trading of civil liberties and freedoms in the name of “national security” isn’t a “political or social objective”, then I don’t know what is. Nobody wants a repeat of 9/11, nor does any President want to have a 9/11-style attack occur on their watch but surely, that is not justification for blanket, non-discriminatory searches of millions upon millions of people’s private phone records, credit card transactions, and internet activity.
The Fourth Amendment makes clear that a search warrant requires probable cause and must specify the persons, places, or things to be searched. Collecting and searching the kinds of records that the NSA has been collecting, on the massive scale upon which they have been collecting such records, is a violation of the Fourth Amendment, regardless of whether it is “within the bounds of the law”, as indicated yesterday by President Obama as well as numerous other politicians. Because something is “lawful” does not necessarily means it’s “constitutional”, hence the existence of the Supreme Court, whose sole responsibility is to determine the constitutionality of laws. Unfortunately, the Supreme Court has never had an opportunity to determine the constitutionality of the NSA’s data collection “laws” because those laws have been created in secret, and are managed by the secretive Foreign Intelligence Surveillance Court. In other words, another guarantee of the Constitution, Article III, Section 1, was violated, again, in the name of “national security”.
Many politicians have indicated these past few days, that terrorist plots have been thwarted thanks to the data collected by the NSA, and have made the case that these data collection programs are necessary to keep America safe. There is no doubt that this is true however, this is no justification to circumvent the Fourth Amendment. Certainly, we can all agree too, that many crimes would be solved and/or prevented if we simply allowed police officers to conduct searches at-will, without cause, and without the need for obtaining a search warrant first. However rational such a policy may seem to a politician who is simply trying to keep Americans “safe”, it is hoped that Americans would never allow such a roving band of police officers to enter their home and search it without justification and, in fact, such a policy would be politically suicidal for any politician who voted for it. Definitely, the Supreme Court would overturn such a policy, deeming it “unconstitutional” and a violation of the Fourth Amendment. So why would our government think that a similar policy, aimed at data collection, would be justified, constitutional, and acceptable to the American people? I suspect that the answer is two-fold: 1) the program was never supposed to be revealed and thus, the American people were never to find out about it and, 2) there is a personal disconnect between data collection and police officers physically searching one’s home. In other words, to a politician, “it’s not like the police confiscated the records directly from your phone or computer”. It happened in a non-descript building, by faceless, nameless people, and therefore, to Americans, the reality of it is not so “real”; certainly not as real as if a cop simply seized your phone and sent its phone log to the NSA.
The paranoia created by terrorism has created a system where by politicians have bowed to their demands and traded, without thought, debate, or even asking, American’s rights and liberties in exchange for an allegedly more secure environment, and they have done this while, at the same time, vowing to never bow to a terrorist. What politicians say versus what politicians do has always been contradictory but this time, politicians have gone too far and have, in essence, allowed the terrorists to win. We live in fear and paranoia but that should never get in the way of those values and freedoms that separate America from the rest of the world. Remember, what the United States is doing is not that far off from what the likes of Syria, Iran, and other third-world despots are doing and when we have crossed that line, we are no longer beating them; we have become them. The age-old saying “if you can’t beat your enemies, join them” should never apply to our civil liberties.
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