In the early 1760’s the Royal Governor of Massachusetts began issuing “writs of assistance” as general warrants to search for contraband. They empowered officials to search indiscriminately for evidence of smuggling.
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These warrants were challenged in February of 1761 by James Otis, who argued forcefully that they violated the natural rights of Englishmen and were in fact, “instruments of slavery.”
A 25-year old attorney who attended the trial later wrote, “Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance. Then and there the child Independence was born.” That young lawyer was John Adams. To him, that’s the moment the American Revolution began – the general warrants were the first warning that his king had become a tyrant.
The Founders specifically wrote the Fourth Amendment to assure that indiscriminate government searches never happened again in America. In America, in order for the Government to invade your privacy or to go through your personal records or effects, it must first present some evidence that justifies its suspicion against you and then specify what records or things it is looking for.
Last week, we learned that the federal government is today returning to those general warrants on a scale unimaginable in Colonial times by seizing the phone and Internet records of virtually every American.
We’re told that this is perfectly permissible under past Supreme Court rulings because the government is not monitoring content but only records held by a third party. This wouldn’t be the first time the Supreme Court has erred grievously.
If phone records are outside the protection of the Fourth Amendment because they are held by a third party, then so, too, are all of our records or effects held by third parties. That means the property you keep in storage or with a family member, the private medical records held by your physician, the backup files of your computer maintained on another server — are all subject to indiscriminate search. Many of the general warrants served in Boston were on warehouses owned by third parties.
Even if we were to accept this rationale, then that third party – for example, the phone company – should itself still be safe from general warrants like those that have apparently scooped up the phone and internet records of every American.
It is argued with Orwellian logic that it’s permissible to seize these records indiscriminately since they aren’t actually searched until a legal warrant is issued by a secret FISA court. But if general warrants can produce the evidence for specific warrants, isn’t the Fourth Amendment prohibition against general warrants rendered meaningless? And all we know of the secret FISA court and its deliberations is that out of 34,000 warrants requested by the government, it has rejected only 11— hardly a testament to judicial prudence or independence.
We are told that the information will only be used to search for terrorists. Does anyone actually believe this? Just a few months ago, the director of national intelligence brazenly lied to Congress when he denied the program existed at all. Just a few weeks ago, we learned that this administration has taken confidential tax information belonging to political opponents and leaked it to political supporters. Is there anyone so naïve as to believe the same thing won’t be done with phone and Internet records if it suits the designs of powerful officials?
A free society does not depend on a police state that tracks the behavior of every citizen for its security. A free society depends instead on principles of law that protect liberty while meting out stern punishment to those who abuse it. It doesn’t mean we catch every criminal or terrorist — it means that those we do catch are brought to justice as a warning to others. This is true whether we are enforcing the laws of our nation or the law of nations.
Indeed, if we had responded to the attack on Sept. 11th with the same seriousness as we responded to Pearl Harbor, terrorism would not be the threat that it is today.
Ours is not the first civilization to be seduced by the siren song of a benevolent all-powerful government. But without a single exception, every civilization that has succumbed to this lie has awakened one morning to find the benevolence is gone and the all-powerful government is still there.
Rep. Tom McClintock, R-Elk Grove, represents the 4th Congressional District.