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May 08, 2006


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Kimball Corson

The worthy commentators on this blog are barely able to keep up with the fast breaking Fourth Amendment atrocities of this Administration. Now we learn that NSC has been keeping and scanning with on or another algorithm the phone records of most Americans since 9/11 in the biggest database ever assembled. Access to such records has historically required a warrant, but only Quest stood up on this point and refused governmental access after being threatening with loss of government contracts in the future if it did not cooperate. AT&T, Bellsouth and Verizon knuckled under. Interestingly, Quest lawyers noted that in negotiations with government lawyers, the latter said they did not want to seek warrants from the FISA court because they were afraid they would be denied.

There is a key point underlying NSC’s foreign and newly disclosed domestic surveillance programs that has not been focused upon, but I think is key. The Administration argues, with respect to both programs, that it does not misuse the information it obtains without warrants or independent oversight, but that position flies in the face of a basic Fourth Amendment principle. That principle is that because governments are not to be trusted with such private information, they may not have access to it without a warrant. That is, most broadly viewed, the government has to make a showing of why they need the protected information and why they reasonably believe it will help them uphold the law. Historically, the government does not get any access to such information until it makes that showing and independent oversight, the judiciary, agrees and issues the warrant. Here, the Administration subverts that principle and turns it on its head, saying, ‘Trust us with the information; we will not misuse it,’ even though there is no oversight and secrecy is used to keep collection and use of the information from our knowledge. This is the rub. We are asked to trust our government in matters private to us that not even disclosed to us. The farcical aspect is obvious.

All this said, the so called war on terrorism, may require some compromise of this basic principle to allow limited and defined use, but certainly not without independent oversight from the start and certainly only during wartime, reasonably construed. Congress has its work cut out for it, but I worry about whether it is up to the task, being so badly roiled in partisanship and too much a rubber stamp of approval for the Administration.

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