Peter Van Buren: Shredding the Fourth Amendment in Post-Constitutional America

Yves here. Van Buren continues his examination of what he calls the “post-Constitutional era”. This post focuses on the loss of privacy, a presumption enshrined in the Fourth Amendment. Van Buren describes how Fourth Amendment rights have been eviscerated in the post 9/11 era, such as by permitting the surveillance state to pour through millions of records using subpoenas rather than search warrants.

By Peter Van Buren, who blew the whistle on State Department waste and mismanagement during Iraq Reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. He writes about current events at his blog, We Meant Well. Van Buren’s new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now. Cross posted from TomDispatch

Here’s a bit of history from another America: the Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now in Post-Constitutional America.

The Fourth Amendment

A response to British King George’s excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches: “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.

In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.

Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.

The Constitutional Borderline

Begin at America’s borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.

Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.

Here’s the twist in the present era: the definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.

Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.

There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.

Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)

Making It All Constitutional In-House

Here’s another example of how definitions have been readjusted to serve the national security state’s overriding needs: the Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.

Some background: a warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Anderson’s home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”

A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.

The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: the DOJ isn’t doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don’t know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.

It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.

How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoena — no court involved — demanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.

Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.

Technology and the Fourth Amendment

Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover’s low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (COINTELPRO).

But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.

To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online — from banking to travel to social media. Where the NSA was once limited to traditional notions of communication — the written and spoken word — new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.

An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the world’s largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.

With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.

The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”

Once you have the whole haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM’s Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.

Tools like NORA and its more sophisticated classified cousins are NSA’s solution to one of the last hurdles to knowing nearly everything: the need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and — given the quickly expanding supply of data — will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn’t have a conscience and it can’t blow the whistle.

What does all this mean in terms of the Fourth Amendment? It’s simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.

On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week’s unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging one’s inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)

Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone — call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers. 

In its new decision, however, the court acknowledged that cell phones represent far more than a “physical object.” The information they hold is a portrait of someone’s life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.

Does this matter when talking about the NSA’s technological dragnet? Maybe. While the Supreme Court’s decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.

National Security Disclosures Under HIPPA

While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.

Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor’s office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law” states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.

How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.

The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) That’s why health-care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life — something, by the way, that couldn’t have less to do with American “security” or combating terrorism.

Our health-care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don’t discuss your fears with your doctor.

How the Unreasonable Becomes Reasonable

At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don’t lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.

In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.

Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king’s thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.

Print Friendly, PDF & Email


  1. John

    Very timely post.
    The problem is a few elite, persuasive politicians (Righties) have steadily been trying to criminalize everything. Name the social norm (welfare, dissent, privacy, education, work, voting, etc) and you will find Righties ratcheting up, or should I state, take away those things we use to cherish as a country. There is no coincidence the prison population has exploded in the recent decades, packed mostly with people of color and indigent people. These people need to be controlled.

    Government surveillance is a tool highly coveted to keep tight control. Just ask the North Koreans. So it is no surprise politicians and DoJ fight vigorously to keep the spy-state fully funded, protected and ever expanding.

    Two days ago Eric Holder was in Athens working with his European counterparts on ironing out data privacy protections for Europeans. EU leaders have been seeking the same level of data privacy protections for Europe like what is expected of Americans in the 4th Amendment. Lots of Europe’s data sits on American servers and big chunks of it are undoubtedly in the privacy realm . When Mr Holder stated the US would grant Europeans the same level of protections as Americans, it was somewhat sad to hear. Everyone knows just because Mr Holder says something it does not become law. What the Europeans are looking for will require a vote in Congress. How likely is that knowing what we know now? Americans are having to fight to keep the Constitution adhered to so it is unlikely Ms Redding is going to what she is looking for anytime soon. What could happen at some point is the Internet become a balkanized zone because no foreign leader is going to trust what any Administration says.

    Post-Constitutional now colonized America is a good depiction of the situation.

    1. Banger

      Just a quibble–it isn’t just the “right” that favors a post-Constitutional America–the centrists and center-left in this country have been solidly anti-Constitutional for some time. The trend has truly been bi-partisan. The libertarian right has probably been more attentive than the left concerning civil liberties and the Constitution.

      1. diptherio

        Yes, which means that civil liberties and defense of the bill of rights is one place where left/right/independent coalitions can form. Prime Skunk Party territory.

    2. washunate

      I would definitely echo Banger here.

      “The problem is a few elite, persuasive politicians (Righties) have steadily been trying to criminalize everything”

      That quote is completely, 100% wrong. Please try again.

      This has nothing to do with Republicans or Rightists or whatever. This is a bipartisan effort. The states that really kicked off the drug war aren’t in flyover country – they’re NY and CA. The single biggest advocate in DC of the drug war over the past three decades is probably Joe Biden. The cities where the majority of black people live (and are thus arrested) are overwhelmingly Democratic. The most powerful unions in many parts of the country are corrections officers. Judges and police chiefs are some of the highest paid workers in our entire economy. Barack Obama’s comments about look forward, not backward are astounding in their overt embrace of the two-tiered justice system. Etc.

      1. Nathanael

        The Democratic Party is a right-wing party. With a small left-wing component.

        This isn’t really up for debate. Just compare it to the right-wing parties in other countries.

        The Republican Party has degenerated into an extremist hate group, defined largely by the groups of people they want to abuse.

        1. washunate

          I disagree with this view that the GOP is ‘worse’ than the Dems. The assault on Constitutional governance is bipartisan. The extremism is bipartisan.

        2. FederalismForever

          @Nathanael. “The Republican Party has degenerated into an extremist hate group.” With all due respect, you should pay closer attention to recent developments in the Republican Party. One of the few welcome recent developments in American politics is the emergence of a bona fide anti-war civil libertarian wing in the Republican Party. Senator Rand Paul is the primary figure here, along with Senator Mike Lee. But conservatives on the Supreme Court have also played a role. Justice Scalia, in particular, has issued many strong opinions on Fourth Amendment issues. See:

          I’m also not sure what you mean when you say that it is beyond debate that the Democratic Party is a right-wing party. One way of defining the Left vs. Right divide is whether a party tends to favor local solutions/local control (Thomas Jefferson), or instead favors greater centralization/federal control (Alexander Hamilton). On this analysis, the current Democratic Party is in no way right wing. Rather, from the ACA to Common Core to federal sentencing laws, today’s Democratic Party relentlessly favors one-size-fits-all top-down federal solutions, or prefers that unelected federal judges issue sweeping rulings on social issues such as gay marriage, rather than allow these issues to be addressed at the state level.

          1. James Levy

            Oh, so we should have left Jim Crow to the States? And air and water pollution control? And the rights of immigrants and women? How is the enforcement of the death penalty working out for you? Seems some states really like to kill black people. If rights are rights, then they have to apply to everyone, or they are privileges handed out at the whim of the Good Old White Boys who own and run much of the country. The only institution that can guarantee those rights for all is the Federal Government, and in fact it is duty-bound under the Constitution to do just that. You can’t escape that the one right of the States that Jefferson and all his followers loved the best was the right to own other people, and they cost us 620,000 demanding the right.

            1. FederalismForever

              Um . . . I was just pointing out that another way to frame the Left vs Right divide is State’s rights vs federal control. I see merit in both approaches, depending on the issue. I certainly don’t start frothing at the mouth about Jim Crow every time someone merely mentions state’s rights, regardless of the context.

  2. Banger

    Of course we know that these issues are all a result of being “at war” as they like to say. Whether it is the War on Terror, War on Crime or War on Drugs it is war, war, war, war, war that keeps the authoritarian types thriving in this society. The fact we fall for these cons is the main tragedy we face. We believe the media-Narrative at our peril.

  3. Jim Haygood

    While it’s just a small cog in the destruction of rights, let’s give credit to MADD for its contribution.

    Previously, police needed probable cause to pull over a motorist. Now they can set up dragnet checkpoints, stopping everyone. Finding infractions is like shooting fish in a barrel.

    Just yesterday I went through a daytime checkpoint, presumably intended to catch expired inspections, unlatched seatbelts, roach clips in the ashtray, and such.

    Checkpoints are a characteristic policy of police states.

    1. Martin Finnucane

      Ditto seat belt laws. Whatever their history and rationale, these laws function to allow law enforcement license to pull over who they want when they want. From there, it’s “strong odor of marijuana coming from the vehicle” and “the driver gave me consent to search the vehicle,” and it’s off to the races. You would be amazed by the degree of concern law enforcement have towards the safety of the young, African-American motorist.

    2. MtnLife

      Where are your papers? Don’t you know you aren’t responsible enough to make your own decisions? Please hand them all off to the Central Social Behavior Board. You need to hand over all privacy to make sure you are doing the right thing.
      I’m all for people making safe, responsible decisions. I’m totally against criminalizing making a different choice and the stepped up surveillance to enforce that behavior. I was trying to explain to someone yesterday about the dangers of using the rationale of “if someone won’t protect themselves, someone in authority should step in and make them do it” since there is no clear line as to where that would stop. Smoking isn’t the best thing for you but we shouldn’t criminalize someone who smokes. What about a bad diet? Do we need an in-house govt observer to make sure we don’t sneak a potato chip? With the stories of Big Data linking up with health care to introduce “preemptive health interventions”, the Constitution-free “border” zone (I’ve been full search non-warrant style a good hour from the border in NY), and suspension of nearly every other right under the guise of “fighting terrorism” how far away are those other “crazy” ideas?

      1. PrairieRose

        Plus one hundred million, MtnLife. If my neighbor isn’t free to make her or his own choices regarding his or her own behavior (whether the decisions are “bad” or “good”), then neither am I.

        Honestly, I should think the repubs and the libertarians would be screaming bloody murder about Big Data–they are constantly screaming about the “nanny state.” Well? Why aren’t you screaming about Big Data collecting information on everything you buy at the grocery store and then sending that information to your doctor and your health “insurance” company?? Jeez Louise. Honestly, I do not recognize this country anymore.

  4. washunate

    “Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now in Post-Constitutional America.”

    I really like this series, but I would point out that this mindset is dead wrong, perhaps an attempt at simplification that messes up the details?

    The assault on Constitutional governance predates 9/11. Especially the 4th amendment.

    1. tim s

      Agreed. 9/11 was more or less a “formal” declaration of war by the oligarchs on the general population. It seems that the oligarchs know this, but the rest of us have been slow to catch on.

      1. downunderer

        Right, but the reality of “slow to catch on” is so extreme that the phrase fails when used as an understatement for rhetorical effect. Clear back in 1982-83, I was getting into political trouble in a small town in Washington state by opposing government’s two-fisted punch of adding administrative civil seizure to the “War on Drugs” arsenal. Naturally, I lost the fight, for the same reason the entire state of Oregon lost it when they tried to require that seizure only follow an actual conviction.

        Unusually for such fights, this one involved two deaths, one of them a murder by a fellow City Councillor, who himself later died in jail (he’d be #3). But I can find no trace of a record of this online (this side of paywalls, anyway), though I’m a pretty fair researcher.

        But how can everyone also forget the notorious and well publicized police killing of a totally innocent man in his own home on the Los Angeles-Ventura County border? The raid apparently happened because several government agencies wanted his ranch, and the cash they could get for it, and used a tiny shred of already-debunked evidence to justify a typical dawn SWAT raid on his house (the only shred of evidence was a possible aerial sighting of pot plants gowing under some trees, which clandestine and illegal ground searches had already failed to find). Details of that story are easily found online. Google for “pot “Los Angeles” Ventura killed raid” and see what was happening in 1992, ten years after my problems, and ten years before 9/11/01.

        But here we are in 2014, and shredding the Bill of RIghts is being treated as something that started in late 2001?

        How many decades does it take, folks? Or are sports and celebrities just more important?

        “Look forward, not back” didn’t originate with the current President. A forgetful populace must be the dearest dream of every government.

        1. tim s

          I agree with you. None of this started on 9/11. It was the event that really ramped it up here in the states. Hence my quotations around “formal”. I know that is vague to state such things. Lives are short, and awareness of our surroundings much shorter even than that, so you will usually find people who are unaware of earlier events.

          You say decades, you can just as easily say centuries and milennium – it all just depends on your perspective.

  5. Peter Pan

    You’d think that with the evisceration of the Bill of Rights along with the collection of individual data, various databases and improved technology to search the wide variety of databases, that the government just might be able to find the toothpick (aka terrorist) in the wood chip pile. But they still can’t do it.

    So our best hope in all of this is that the government’s efforts are at best equal to the launch of the Obamacare website. Most of us will be seemingly unaffected (an illusion) while those directly affected will be done so in a completely arbitrary manner (unless you’re socioeconomically disadvantaged).

  6. dw

    well while the government is doing this, business has been leading the way. and it seems like long long ago business records were deemed not be subject to the 4th amendment because they belong to the business, not the individuals (and business wants it that way no matter what else they otherwise they would have 1) disclose what they have 2) correct it if its wrong 3). couldnt sell without permission. none of which they ever want to do unless it helps them some how). and that last one is a way to make more money. just dont get in their way when they have found a way to increase sales and profits! and considering how much data they have and what they can do with it (they can go so far as to send you texts to alert you to products or sales that might interest while you are in the store. they can also send you coupons for products you buy. which can lead to some issues at home. say when the daughter buy’s children clothes. to the parents. who are unaware she is pregnant?)

  7. gouge em out

    Fuck the Fourth Amendment. You don’t need that crap. You got UDHR Article 12, integral part of federal common law and the common law of every state. You got ICCPR Article 17, supreme law of the land equivalent to federal statute. To stop the government parasites from cheating on your rights, we got authoritative guidance that doesn’t miss a trick: the Siracusa Principles debunk police-state newspeak; and for privacy-specific protections you got Human Rights Comittee General Comment 16.

    Best of all, to invoke these legal rights you don’t have to appeal to the shit-flinging shaved apes of the supreme court. You go over their head to the world. The civilized world will enforce this. Here’s how.

    NSA espionage and sabotage breach conventional international law including ICCPR Article 17 and Vienna Convention on Diplomatic Relations (Article 27 clause 2, Article 30 clause 2, and Article 49) – particularly since the legal precedent of Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia.) Under the law of diplomacy, espionage is duplicitous proceedings, which give legal grounds for suspending or invalidating international agreements. Documented NSA duplicity lets countries demand renegotiation of all sorts of agreements: trade treaties, international organization charters, even alliances.

    NSA’s missions, espionage and sabotage, are treated in the Geneva Conventions as irregular methods of warfare: “une activité préjudiciable à la sécurité de l’Etat.” Then there’s NSA complicity in targeting protected persons and noncombatants for the war crimes of murder and torture in breach of international criminal law including the Geneva Convention common articles. Peacetime espionage is a breach of the principle of non-intervention, a legal absolute just like the ban on use or threat of force – coercive intervention is as serious a crime as aggression.

    The prohibited nature of NSA conduct is reinforced by customary international law including UDHR Article 12 and American Declaration Article X. Offenses like espionage and sabotage that are criminalized in every jurisdiction are a natural part of customary international law and can be enforced by judgments in the International Court of Justice.

    The US government as a treaty party is responsible for making good NSA espionage and sabotage, including contracted wrongful acts under state direction and control. Court-ordered restitution, compensation, satisfaction, and interest for NSA’s conduct is unknown and potentially ruinous. State responsibility principles governing reparations specifically include the moral damage of “personal affront associated with an intrusion on one’s home or private life.”

    Germany blackballing Verizon? You ain’t seen nothin yet. Add to the unacknowledged US liability for aggression the TBD restitution, compensation, satisfaction, interest, and legal countermeasures for systematic unlawful surveillance of correspondence, and you’re running into money.

    1. James Levy

      I can’t tell if you are being serious. What army is going to show up in Washington and serve the writ? How can you collect from a nation whose nuclear arsenal can wipe out the planet? What American police force will enforce these rules (which they have never heard of and could give a shit about) and what judge and jury will decide in your favor? One in the Hague? What does that matter. How many aircraft carriers do the judges in the Hague have at their disposal to enforce their rulings? See my point? You may be a very honorable person, but you are talking nonsense.

      1. downunderer

        In addition to James Levy’s quite valid points, anyone who thinks that anything “can be enforced by judgments in the International Court of Justice” should check Wikipedia about both the formal realities and the reality of history.

        “Article 94 establishes the duty of all UN members to comply with decisions of the Court involving them. If parties do not comply, the issue may be taken before the Security Council for enforcement action. There are obvious problems with such a method of enforcement. If the judgment is against one of the permanent five members of the Security Council or its allies, any resolution on enforcement would then be vetoed. This occurred, for example, after the Nicaragua case, when Nicaragua brought the issue of the U.S.’s non-compliance with the Court’s decision before the Security Council.[6]”

  8. gouge em out

    Thanks for the concise recap of standard US government indoctrination: international law is pointless cuz we got guns. The US population has internalized it fervently. People naturally don’t remember when the ICJ stopped a war: Libya, 1992. Wouldn’t be surprised if it also slipped your mind about that time the mighty US hegemon paid off its archenemy to escape formal judgment by the ICJ: The Aerial Incident of 3 July 1988 (Iran v United States of America). You could look it up but it’s all gone down the memory hole in the US. That ‘realist’ stuff is sanctified in international relations courses and media axioms but it’s just a bunch of catchy slogans.

Comments are closed.