Wednesday, April 22, 2009

Technology, Terrorism, and Tyranny

NOTE* Excerpted from the article by the same title first published in 1999 by the author on the Law and Liberty Foundation Web Site. Footnotes copied from original document.


Within the philosophical framework of western jurisprudence, preservation of individual human rights of the citizens is the very reason for the existence of government. The rights to freedom of association, freedom of speech, privacy, and travel were considered by the founding fathers to be " inalienable" rights endowed by Almighty God. As such, these rights were beyond the reach of the state unless the holder of the right (the citizen himself) should commit an act tantamount to forfeiture. Chief among these rights is the inalienable right to personal liberty. "Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one' s person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law." [26] Influenced, as they were, by Blackstone and others, the founders erected a criminal process by which every citizen could claim a protection against the host of evils which might inflicted against them by an over-zealous prosecutor. They recognized the principle that once liberty is abridged, other individual liberties would shortly and inevitably be under attack as well. "Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown) there would soon be an end of all other rights and immunities." [27]

Given this historical foundation of western jurisprudence, government is, and should be, wary of doing injury to the Constitution, no matter how great may be the threat of terrorism. It will almost certainly be more injurious to the long-term health of our Republic if the Constitution is abrogated for the sake of a temporary disturbance. A prudent man will never suffer a cure which is worse than the disease it purports to remedy.

The government, predictably, advocates for virtually unlimited discretion in applying new technology to its ongoing drug/terrorism fight. Although professing a high regard for the Bill of Rights, the government (both legislative and executive branch) has been only too willing to suspend the Constitutional protections if there exists sufficiently compelling national interests. Of course, the national interest is always sufficiently compelling in their view. While giving some ground in favor law enforcement, the courts have shown an inclination to protect privacy from the increasing spate of new technologies. They split on the use of the heat-detecting Forward Looking Infrared (FLIR), with several federal circuit court’s ruling that FLIR does not violate the Fourth Amendment because the energy that is released and detected is waste heat. The most recent decision in the 10th Circuit, however, questions the legality of using both FLIR and other new surveillance technologies. In a marijuana growing case in which it threw out evidence obtained through thermal images of a house, the Court noted that "the Defendants need not have anticipated and guarded against every investigative tool in the government's arsenal. To hold otherwise would leave the privacy of the home at the mercy of the government's ability to exploit technological advances: the government could always argue that an individual's failure (or inability) to ward off the incursions of the latest scientific innovation forfeits the protection of the Fourth Amendment. ... [T]he government would allow the privacy of the home to hinge upon the outcome of a technological race of measure/counter-measure between the average citizen and the government a race, we expect, that the people will surely lose." [28] It is, after all, the people whose rights the government is instituted to protect if we are to believe the signers of the Declaration of Independence. Thankfully, most of our jurisprudence still reflects that ancient notion. Justice Wm Brennan, writing a dissenting opinion in U.S. v. White, had this to say about the public policy implications of an unrestrained police surveillance power:
When a government degrades its citizens, or permits them to degrade each other, however beneficent the specific purpose, it limits opportunities for individual fulfillment and national accomplishment. If America permits fear and its failure to make basic social reforms to excuse police use of secret electronic surveillance, the price will be dear indeed. The practice is incompatible with a free society. [29]

In the case against Plamondon in 1972, the Supreme Court affirmed the lower court in holding that a bombing suspect, charged with destruction of federal property, had been denied his right to protection against unwarranted search when his phone conversations were tapped without judicial authorization. Justice Powell writing for the majority, responded to the government's claim that only the executive branch of the federal government could adequately determine what was in the national best interest. Powell articulated the dangers of allowing the government to be the sole judge of the necessity of employing high-tech surveillance against its citizens:
History abundantly documents the tendency of Government--however benevolent and benign its motives--to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure. [30]

Nearly every president since FDR has sought to increase the s cope of the executive authority, some with more success than others. No president since FDR has been as zealous in securing expanded power for the presidency as has William Jefferson Clinton. While entire volumes could be written about the excesses of Constitutional torture indulged in by the current sitting president of the United States, it is sufficient here to say only that America is at critical jurisprudential juncture. What is needed desperately in our leaders (all three branches of government) is a profound sense of commitment to principles; those historic principles of right and wrong which animated our nation during its formative years. Unless, and until, our president, our legislators, and our judges understand and embrace the notion that the liberty of the nation is tied directly to the liberty of the people; and unless the people wake up and take their rightful place at the helm of the great ship of state, we will continue our tumble towards tyranny.


[26] Sir Wm. Blackstone, Commentaries on the Law of England, Book One, Chapter One, Oxford: Clarendon Press, MDCCLXV, Reprinted 1966, The Layton Press, Buntingford England, for Oceana Publications, NY, pg. 130.
[27] Id. pg 131
[28] David Banisar of Privacy International at
[29] Justice Brennan, dissenting in U.S. v. White, 91 S. Ct. 1122 (1971) quoting R. Clark, Crime in America (1970) pg. 287
[30] Justice Powell, writing the majority opinion in U.S. v. Plamondon, 92 S. Ct. 2125, (1972)

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