Archives for posts with tag: Fourth Amendment

It is my belief that there are absolutes in our Bill of Rights, and that they were put there on purpose by men who knew what words meant and meant their prohibitions to be ‘absolute.’

Hugo Black[1]

[This is Larry, and I’m not here to talk about sociology and the law. I’ll leave that to others. But today I’ll supplement the last blog, the one by Phil, our resident philosopher, with some facts. Even in a blog it’s nice to have a few of those, isn’t it? In it Phil paraphrased a quote from Hugo Black, one of the great liberal justices of the mid-20th century Supreme Court. Unfortunately while the paraphrase was interesting, the original was nowhere to be found. Phil said he’d get back to you [us] when he found it [the original quote]. That job has fallen to me, because I know the source. You see, Justice Black said it, or something like it, on television in 1968, and I remember the program. But luckily I don’t have to rely on my aging grey cells for the details, because his wife memorialized the whole business in 1982[2].]

But before we get to that, let’s talk for a moment about the person. Hugo Black was an important judge in his day. He joined the Ku Klux Klan in his early days, but soon left it. He discussed all that business back in 1937[3] and pretty much didn’t address it again. I’ve always thought it’s a good thing when somebody who joins a radical group changes his [or her] mind. I certainly don’t think Justice Black did anything wrong by dropping out. People make mistakes, and then correct them. For sure, that’s better than doing nothing.

As a judge he was famous for having said that there are absolutes in the Bill of Rights, although he never said that the whole thing was. “[I] did not say that our entire Bill of Rights is an absolute.”[4] But he did think, for example, that the part of the First Amendment that said “Congress shall make no law respecting any establishment of religion,[5]” was pretty much that way. “Now if a man were to say this to me out on the street … I would think: Amen. Congress shall pass no law. Unless they [the Founders] just didn’t know the meaning of words. That’s what they mean to me. Certainly they mean that literally.”[6]

Justice Black took much the same approach to pornography, which he saw as unsavory and poorly defined, but still opinion speech fully protected by the First Amendment[7]; and to the accused’s right not to incriminate him[or her]self, protected by the Fifth. These decisions were unpopular with many and as a result, the Court [and Justice Black] got a lot of negative mail. Are you surprised?

Don’t be. Even today Conservatives on AM Talk Radio complain about the Fifth Amendment and how it protects an accused, and Liberals don’t seem to care for the First Amendment very much. They really detest speech that offends them, especially if it’s uttered by President Trump. Conservatives also complain about Justice Black’s Klan membership, as though that somehow vitiates all of his subsequent legal work. “Because you once belonged to a bad organization, you never can have an opinion on something important that disagrees with mine?” Interesting argument.

But enough of that! We’re still looking for the famous quote that nobody can find. Well, here it is:

When Justice Black was asked about his negative mail – i.e., about the stuff he received – he answered what could have been a softball question with precision. “Do you think, Mr. Justice, that most Americans understand the Constitution?” He said: “No.”

I think most of them do not. I think most of them are sure they do—better than the Court. People don’t know it. I get letters all the time; I get many letters. People who don’t have a good idea of grammar; they’re certainly not good letter writers, and they’re telling me that “You ought to get off the Court and—.” Some of them tell me to go to Russia. “Go back to Russia.” Well, that’s too far for me to go back since I’ve never been there. But they think they know it. And their idea is all the same. You can trace it to the same thing, doesn’t make a difference what it is, what their experience is, or why they’re mad at the Court. It’s all because each one of them believes that the Constitution prohibits that which they think should be prohibited, and it permits that which they think should be permitted.[8]

So there we have it: The famous quote that Phil couldn’t find, but paraphrased anyway. Justice Black sure didn’t mess around, did he? Make of it what you will.

[Larry is signing out and leaving the building.]

 

 

 

 

[1] See The Supreme Court Historical Society, Publications, 1982 Yearbook (2008) at Hugo Black, A Memorial Portrait, p. 120, 148 . This will be cited as Memorial Portrait at p.  __.

[2] Id.

[3] See Memorial Portrait at p. 133. He discussed it in a radio address in 1937, and decided not to “raise the topic” again. “That is the subject I do not intend to revive. The newspapers do enough of that.”

[4] See Memorial Portrait at p. 127.

[5] We use the National Archives as our source for the wording of the Constitution, its Amendments, etc. It’s accurate and free. You can find the 1st Amendment there, at https://www.archives.gov/founding-docs/bill-of-rights-transcript  The full quote is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[6] See Memorial Portrait at p. 127, 128.

[7] See n. 3.

[8] See Memorial Portrait at p. 148.

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[This is G again. I’m back, still working off the timeline of the Snowden affair that my friends prepared these last three weeks. Fred asked me to remind you that he wants to “open source” the Timeline, so he’ll consider any and all suggestions for improving it. He’s very opinionated, as you know, so he’s not guaranteeing he will accept all changes, but he promises to give them all a fair hearing. I expect that’s better than you might get anywhere else.

Today we’re going to take a closer look at the NSC’s approach to collecting data about Americans, and compare it with the criteria set out in NSA’s “foundational authority” for spying, i.e., in Executive Order 12333.[1] Of course, that Order dates from 1981, but it’s still around[2], so it’s still “operative,” to use an old expression[3]. But is it being followed? Let’s take a look.]

Executive Order 12333.

This Order dates from the Reagan Administration. The people who wrote it were very careful to observe the Constitutional niceties. Nothing in the Order, they said, “shall be construed to authorize any activity in violation of the Constitution or statutes of the United States. [4]“ That’s an important statement, I think, because it says even the Intelligence Community must obey the rule of law. Media pundits, Hollywood script writers and others of similar ilk may not agree, but hey! That’s show business!

Assassination is prohibited[5] as a tool of intelligence, and human experiments are closely controlled. [6] One of these days we’ll look into the history of this; I’m sure there’s quite a story there. But that’s a tomorrow problem. Today we’ll just note that Intelligence agencies can’t break these rules or ask others to do so.[7] At least that’s what the Executive Order says.

Now let’s move on to our main topic, i.e., how and when does the U.S. Government spy on Americans?

Of course, by now we all know what the U.S. Constitution[8] says. The Fourth Amendment says our right “to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …”[9] The Government must first get a warrant, based on “probable cause,” and describing the particulars of what it is looking for, before it can invade our personal space.

So how does that work when the Government’s after intelligence? Well, it’s not absolutely clear. The Intelligence Community needs information to protect us, and will pursue it in a “vigorous, innovative and responsible manner.”[10] But at the same time, its activities must be “consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded.[11]” Sounds like a conundrum, doesn’t it? A puzzle, a riddle, a problem to be solved?

Well, apparently there is a solution, or at least a process, that intelligence bureaucrats can invoke if they’re suspicious of a citizen.[12] If the suspect is in this country or abroad, the Government should:

  • Use the “least intrusive collection techniques feasible”[13]
  • Don’t use electronic surveillance, unconsented physical search, mail surveillance, physical surveillance or monitoring devices unless such techniques are regulated by the Head of the Agency involved and the regulations are approved by the Attorney General.[14]
  • In general, use the CIA for surveillance overseas, and the FBI to do the same job in the U.S.[15]

So, just looking at the four corners of Executive Order 12333, it seems our Government has, or had, a system carefully tuned to examine individual cases, determine the appropriate surveillance techniques, and apply them. Today, however, we seem to have developed a different, parallel system. We have the new, improved …

NSC/NSA Vacuum Cleaner

No doubt you all remember June 6, when The Guardian released the first of its articles on Edward

Snowden and the documents he purloined from the NSA.[16] It turns out the NSA has been collecting signals intelligence on a wholesale basis for some time now, and has accumulated a massive data base including, what a surprise, data on U.S. persons at home or abroad. Is this because the Government has probable cause to believe that many of us are a danger to our country? No, not really. The Government needs all of that data because someday, somewhere, a pattern may emerge from it that predicts terrorist activity of some sort at some place or another.

And how do I know that? Well, because the Director of National Intelligence said so. He said the data collected “is broad in scope” because “more narrow collection would limit our ability to screen for and identify terrorism-related communications.”[17] Acquiring lots of data in this manner “allows us [the Government] to make connections related to terrorist activities over time.[18]” QED. The Government gets all of this data because someday it might be useful.

Isn’t that a bit of an overreach? Of course, some terrorists are very dangerous; but we’ve had dangerous outlaws before in this country. Consider, for example, the case of John Dillinger. In 1933-1934 he and his associates robbed at least a dozen banks; raided police stations and federal arsenals for weapons; escaped from jail a couple of times (once with a wooden gun); vacationed in Florida; and killed a bunch of people, including bystanders and police.[19] Dillinger was killed in 1934 in a faceoff with agents of a newly minted federal agency, the FBI. Some say that without John Dillinger the modern FBI might not exist.

So how did the FBI do it? How did they catch John Dillinger? Did agents search the homes and offices of the innocent, intercept their mail, tap their phones, etc. and accumulate massive amounts of data in the hope that someday, some of it might give a clue as to Dillinger’s whereabouts? No. After all, the pesky old Fourth Amendment was supposed to protect the general public from hysterical intrusions by over-zealous police. They needed a warrant and “probable cause” to search, homes, papers, etc.

Instead the FBI relied on informants. Dillinger was caught because he was staying in a brothel in Chicago, and the head madam there gave him up. And there’s a lesson in that for the NSC. If you want to catch today’s Dillingers, the terrorists, check first with the hookers[20]. They know a lot more than you do about the criminal element.


[1] See Executive Order 12333. The Order was published in 1981, in the Reagan Administration, and still in effect. You can get it online from the Federal Register at http://www.archives.gov/federal-register/codification/executive-order/12333.html Henceforth it will be cited as Executive Order 12333 at ___.

[2] Actually, according to Wikipedia it’s been amended and ‘strengthened” a couple of times. For their short article, go to Wikipedia at http://en.wikipedia.org/wiki/Executive_Order_12333

[3] I’m referring to Ron Zeigler, President Nixon’s press secretary, who famously said: “This is the operative statement. The others are inoperative.” You can find the quote in Wikipedia. Just go to the website and search Ron Zeigler, or click here: http://en.wikipedia.org/wiki/Ron_Ziegler

[4] See Executive Order 12333 at § 2.8.

[5] See Executive Order 12333 at § 2.11: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Wikipedia says that this prohibition has been weakened a bit. For Wikipedia’s short article, go to http://en.wikipedia.org/wiki/Executive_Order_12333

[6] See Executive Order 12333 at § 2.10: “No agency within the Intelligence Community shall sponsor, contract for or conduct research on human subjects except in accordance with guidelines issued by the Department of Health and Human Services.”

[7] See Executive Order 12333 at § 2.12: “No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.”

[8] For the version of the Constitution we use, go to Transcript of Constitution of the United States (1787), Art. II, Sec. 4 at http://www.ourdocuments.gov/doc.php?doc=9&page=transcript You can download a copy from the Government Printing Office; just go to http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=CDOC-110hdoc50&packageId=CDOC-110hdoc50

[9] See U.S. Constitution, Amendment 4: “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.”

[10] See Executive Order 12333 at § 2.1.

[11] Id.

[12] The actual term used is “United States person.” See Executive Order 12333 at § 3.4(i).In this case, U.S. citizens also include permanent resident aliens, many corporations incorporated in the U.S., and unincorporated associations substantially composed of U.S. citizens or permanent resident aliens.

[13] See Executive Order 12333 at § 2.4.

[14] See Executive Order 12333 at § 2.4.

[15] See Executive Order 12333 at § 2.4(a), (b) & (c).

[16] See the guardian, Greenwald, NSA collecting phone records of millions of Verizon customers daily (June 5, 2013) at http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order ; the guardian, Greenwald, et al., The National Security Agency: surveillance giant with eyes on America (June 6, 2013) at http://www.theguardian.com/world/2013/jun/06/national-security-agency-surveillance ; See the guardian, Greenwald, et al., NSA Prism program taps in to user data of Apple, Google and others (June 6, 2013), at http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data

[17] See Office of the Director of National Intelligence, Clapper, DNI statement on Recent Unauthorized Disclosures of Classified Information (June 6, 2013), available as a pdf. from the Office of the DNI: go to http://www.dni.gov/index.php/newsroom/press-releases/191-press-releases-2013/868-dni-statement-on-recent-unauthorized-disclosures-of-classified-information?tmpl=component&format=pdf

[18] Id.

[19] There’s a good history of John Dillinger in Wikipedia. Just go to the website and search John Dillinger, or click here: http://en.wikipedia.org/wiki/John_Dillinger

[20] Apologies to the sociologists among you. I realize that the modern term for “hooker” is “sex worker.” I used the old terminology as a literary device.