Letters at 3AM: An Arbitrary Nation, Part 2

Laws arbitrarily enforced (or not enforced) according to the whims of the authorities are no longer laws

Letters at 3AM: An Arbitrary Nation, Part 2
Illustration by Jason Stout

In this series, I examine the Constitution of the United States to demonstrate that it is no longer a functioning document of law. While I'm making my case, entertain this question: If the Constitution is no longer the law of the land, what is?

On to the Fourth Amendment: "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."

Item 1: Technology knows no checks and balances.

"Police departments in Florida, Maryland, Texas, and Colorado are testing drones for surveillance and search-and-rescue missions. ... [The drones range] in size from a small airplane to a hummingbird ... [that is] capable of ... landing on a window ledge, where it can record sound and video. ... Drones can read license plates, spot body heat at night, or identify faces. ... The American Civil Liberties Union warns that drones [may usher] in an era in which Americans could be monitored every time they step outside. ... [I]n separate cases in 1986 and 1989, the Supreme Court ruled that police don't need a warrant to observe a private property from public airspace" (The Week, June 15, 2012, p.11).

There is also a "growing market of off-the-shelf computer surveillance technologies" that "grab images of computer screens, record Skype chats, turn on cameras and microphones, and log keystrokes. ... Mobile versions of the spyware [are] customized for all major mobile phones" (The New York Times, Aug. 30, 2012).

Item 2: There is no Fourth Amendment for Muslims, people who associate with Muslims, and professors who teach Muslims.

New York City police "eavesdropped inside businesses and filed daily reports on the ethnicity of the owner and clientele and what they overheard. The program was not based on allegations of criminal activity. ... Police also infiltrated student organizations. ... Officers included names of students and professors in police files, even when there were no allegations of criminal wrongdoing. ... At mosques, police recorded license plates and took photos and videos of worshippers as they arrived for services.

"[The NYPD] intelligence [division's] ... primary oversight body, the New York City Council, is not told about these secret programs and does not review or audit them. ... The Obama administration ... has tacitly endorsed the programs but does not review them. ... Nor does Congress, which authorizes the money" (The Associated Press, March 12, 2012).

The NYPD's violations of the Fourth Amendment are supposed to make non-Muslims feel safe. They shouldn't. A law arbitrarily enforced (or not enforced) according to the whims of the authorities is no longer a law.

Are you immune from becoming the object of such investigative whims?

The answer is no, as in Item 3: "President Obama's Justice Department" has issued new rules for the FBI that apply "not just [to] terrorism suspects but [to] pretty much anyone. ... [A]gents will be allowed to search databases [etc.] ... [without warrants]. No factual basis for suspecting ... wrongdoing will be necessary" (The New York Times, June 19, 2011).

Even heroes are not exempt, as in the scandal that drove David Petraeus from the CIA: "What is most striking is how sweeping, probing and invasive the FBI's investigation [was], all without any evidence of any actual crime – or the need for any search warrant" (The Guardian, Nov. 13, 2012).

Item 4: "Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls, and other types of communications" (The Washington Post, July 19, 2010).

"[T]his global surveillance system ... collects so much digital detritus – e-mails, calls, text messages, cellphone location data [etc.] – that the N.S.A. is building a 1-million-square-foot facility in the Utah desert to store and process it. ... Intelligence officials told [Senator Ron Wyden, D-Ore.] that they couldn't determine how many people inside the United States had their communications collected because checking the N.S.A.'s databases to find out would itself violate the privacy of those people. In other words, the protection of privacy rights is being invoked to cover up possible continuing violations of those same rights" (The New York Times, Aug. 22, 2012).

"Congress gave final approval ... to a bill extending the government's power to intercept electronic communications. ... President Obama strongly supports [this bill]. ... [C]ritics ... said that they suspected that intelligence agencies were picking up the communications of many Americans, but that they could not be sure because the agencies would not provide [to Congress] even rough estimates of how many people inside the United States had had communications collected under the authority of ... the Foreign Intelligence Surveillance Act" (The New York Times, Dec. 28, 2012).

Both parties are culpable. Thirty Democrats joined 42 Republicans to pass that bill, which was signed by a Democratic president.

Item 5: "The Supreme Court ... turned back a challenge to a federal law that broadened the government's power to eavesdrop on international phone calls and e-mails. ... Writing for the majority, Justice Samuel A. Alito Jr. said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. ... It is of no moment, Justice Alito wrote, that only the government knows for sure whether plaintiffs' communications have been intercepted. It is the plaintiffs' burden, he wrote, to prove they have standing[.] ... The Obama administration defended the law in court, and a Justice Department spokesman said the government was 'obviously pleased with the decision'" (The New York Times, Feb. 26).

A Times editorial, the same day: "The 2008 amendments to the [surveillance] law give the government sweeping power to intercept communications of Americans without individualized suspicions, warrants based on probable cause or any administrative findings of a terrorism connection. The law does not require the government to identify its surveillance subjects. ... [The Supreme Court's] refusal [to let this case go forward] essentially prohibits constitutional review of the 2008 law and whether Congress and the executive branch have undercut fundamental liberties."

Item 6: Last month, U.S. District Judge Susan Illston "ruled that the FBI's practice of so-called national security letters to banks, phone companies and other businesses is unconstitutional, saying the secretive demands for customer data violate the First Amendment" (The Associated Press, March 15). Notice that Judge Illston does not question the FBI's right to pry into our sensitive data without warrants or probable cause; her ruling is based on the First Amendment because the FBI "almost always bars recipients of the letters from disclosing to anyone – including customers – that they have even received the demands. ... [This] gag order creates 'too large a danger that speech is being unnecessarily restricted.'"

Then Judge Illston put her ruling on hold so the so-called Justice Department could appeal. The Obama administration dearly wants its FBI to have warrantless surveillance powers.

Shocked? Depressed? This might make you feel better: The Supreme Court just ruled that the blood in your veins is protected. Authorities need a warrant to extract it (The New York Times, April 18).

However, when it comes to almost anything else, the Fourth Amendment is applied or not, arbitrarily, when the authorities feel like it, making it just words on paper and nothing more. It no longer functions as law.

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U.S. Constitution, Fourth Amendment

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