Freedom in the Garbage Can

by
Dom Armentano

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by Dom Armentano: In
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All of our
elected representatives in Washington, including the President,
swear a sacred oath to “uphold the Constitution of the United
States.” Yet in the wake of the on-going NSA snooping scandal,
one wonders whether any of them have ever bothered to read that
founding document.  

Amendment #4
of the U.S. Constitution states, in part, that “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…and particularly
describing the place to be searched and the persons or things to
be seized.”

Some liberals,
conservatives and even some “libertarians” are in disagreement
over whether the NSA collection of domestic telephone and
email data is, in fact, unreasonable. I assert that it is
unreasonable precisely because we now know that the NSA has gone
far beyond its Patriot Act or FISA (Foreign Intelligence
Surveillance Act, 1978) authorization. Revelations to come will
make this conclusion even clearer.

These laws
allow the collection of intelligence information between “foreign
powers or agents of foreign powers” in the U.S. and elsewhere.
Yet even with the gathering and use of foreign intelligence, these
laws prescribe certain legal procedures that must be followed to
ensure that NSA spying serves a legitimate and legal purpose. On
the other hand, the dragnet collection and storage of general domestic
data such as phone records and email information (“metadata”)
on U.S. citizens, either by the NSA, the FBI or any governmental
intelligence agency, has never been specifically authorized
by any law (although some secret FISA court may have signed off
on such an outrage). Individuals under suspicion can be “searched”
electronically but only with “probable cause” and then
only with the issuance of a warrant specific to the place
or person to be searched. None of this, I assert, has been followed
in the recent disclosures about NSA spying.

Thus it appears
that the NSA has been involved in an activity (apparently approved
by the Department of Justice and the President) in likely violation
of the 4th Amendment of the Constitution. The ACLU will
test this theory with its legal suit that challenges the constitutionality
of this broad based domestic data collection program.

The retort
to all of this, of course, is that the threat of terrorism can justify
almost anything that the government chooses to do in the name of
“national security.” Nonsense. This theory has almost
zero legal credibility. Our history contains a fair number of examples
of government over-reach during alleged “emergencies”
(President Truman’s attempted nationalization of the steel industry
during the Korean War, for example) that have been sternly rebuffed
by the Supreme Court as blatantly unconstitutional. And the reason
should be obvious: Constitutional protection for individual rights
is even more necessary when times are precarious than when they
are not. After all, what are we fighting this alleged war on terror
to preserve?

Which of course
gets to the larger question of whether our government’s alleged
war on terror and the preservation of individual rights under the
Constitution are in any way compatible in the long run. There is
a solid historical reason why the Founding Fathers, especially George
Washington, argued that the U.S. must steer clear of any “foreign
entanglements.” They knew based on the imperial British and
Spanish experience, that foreign military interventionism must
lead to an overall increase in governmental power and, thus,
endanger the very liberties that the Constitution was created to
protect. They also knew that interventionism abroad must invite
retaliation and even repression at home and that “civil society”
would always be endangered by expanding militarism.

The government
surveillance infrastructure put into place after 9/11 can now capture
almost every electronic communication (personal, financial, medical)
between almost everyone on the planet. This development is unprecedented
in human history and is an absolute litmus test for those who believe
that a government with absolute power (over information) must eventually
be corrupted. We are getting perilously close to the point where
we must decide as a society whether adopting a technology for facilitating
the U.S. mission as the world’s policeman is somehow more important
than personal privacy, individual liberty, and perhaps even the
Constitution itself.

June
26, 2013

Dom
Armentano is Professor Emeritus at the University of Hartford (CT)
and the author of
Antitrust
and Monopoly

(Independent Institute, 1998) and
Antitrust:
The Case for Repeal

(Mises Institute, 1999).
He
has written hundreds of op/ed articles for dozens of newspapers
over the last 45 years. He lives in Vero Beach.

Copyright
© 2013 Dom Armentano

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This article originally appeared on: Lew Rockwell