Rob Douglas: Udall and the 4th

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Rob Douglas

Rob Douglas' column appears Fridays in the Steamboat Today. He can be reached at rdouglas@SteamboatToday.com.

Find more columns by Douglas here.

Having celebrated the 237th anniversary of the Declaration of Independence, most Americans proudly believe there are no modern vestiges of governmental injustice similar to those that caused 56 delegates to the Continental Congress in summer 1776 to risk their lives by announcing the birth of a new nation.

Indeed, most Americans seemingly believe that a democratically elected republican government could never become as oppressive or intrusive as that of the monarchy of Great Britain’s King George III in the late 18th century.

That belief is wrong for a multitude of demonstrable reasons.

One of those reasons — the use of general warrants by the federal government — is gaining fresh currency due to revelations by National Security Agency whistle-blower, Edward Snowden. Those revelations include previously secret information about how the NSA is collecting and storing vast amounts of personal information about all Americans.

The secret programs behind these unprecedented data collections have troubled U.S. Sen. Mark Udall for years. Perversely, until Snowden violated his oath of secrecy, Udall was legally gagged from publicly discussing his statutory and constitutional concerns about the very national security laws that he’s wanted to challenge.

Turn the calendar back 237 years.

On June 12, 1776, the Virginia Declaration of Rights was adopted at the Fifth Virginia Convention. Finding the use of general warrants by King George III immoral because they violate individual liberty, Section 10 of the declaration stated:

“That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.”

In fact, general warrants — a writ of assistance in 18th century parlance — were so abhorrent to the colonists, John Adams referred to them as, “the spark in which originated the American Revolution.”

Once free of Great Britain’s oppression, James Madison took pains to ensure the use of general warrants would forever be prohibited by drafting the Fourth Amendment to the U.S. Constitution. That amendment was ratified in 1791 as part of the Bill of Rights — the first 10 amendments to the Constitution. It reads:

“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.”

Because of Snowden — along with earlier whistleblowers and investigative reporting by a handful of dedicated reporters who’ve been instrumental in revealing clandestine surveillance programs tracking almost every aspect of American life — we now have proof that in the wake of 9/11 President George W. Bush and President Barack Obama have stretched the Fourth Amendment beyond the breaking point.

Along with Sen. Ron Wyden, Udall has struggled for years to find a way to have a meaningful public policy debate about NSA surveillance programs that — due to secret information he’s reviewed as a member of the Senate Select Committee on Intelligence – he believes violate the Fourth Amendment.

But here’s the rub.

The secret data collection programs, court orders and court opinions that Udall wants to scrutinize publicly, as a means of providing Americans with some degree of transparency concerning the amount of liberty and privacy they’re surrendering under the guise of national security, are walled off from any meaningful public review by the same national security laws underpinning the programs Udall believes are unconstitutional.

Now that Snowden has breached that wall of secrecy, Udall — as part of a bipartisan group of 26 senators — has sent a letter to Director of National Intelligence James Clapper demanding answers about how the Patriot Act is being interpreted as justification for the collection and retention of personal data about all Americans.

Arguably, Udall could have done more before the Snowden revelations to ignite the public policy debate he’s rightly sought about the surveillance of Americans who’ve done nothing to warrant scrutiny by their government. Still, he’s done far more than most in Congress.

James Madison would approve.

To reach Rob Douglas, email rdouglas@SteamboatToday.com.

Comments

Scott Wedel 1 year, 5 months ago

And now we have learned that the USPS is remembering the sender and recipient of ever letter or package for as long as needed for any investigation. It has come out that is how they caught that sender of the ricin letter.

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Scott Wedel 1 year, 5 months ago

Anyone that has any doubts of the seriousness of the lack of privacy and the importance of privacy, try asking for this data from elected officials. Ask them to provide you with whom they communicated via phone, email, mail and messaging, when and for how long for the past 6 months. And not just for official government business, but for all communications made at any time.

It appears that NSA is also collecting phone location data, so our elected officials should provide the public a list of all people they've met for the past six months.

If they are unwilling to provide that level of information to the public then government should not be allowed to collect that sort of information on the public.

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Stuart Orzach 1 year, 5 months ago

Rob, Thank you for poignantly and succinctly elucidating what needs to be the watershed event of our times. Unfortunately, it is met with a shrug in most quarters. Perhaps people need to squander their rights before they value them. We are now governed by secret legal interpretations that are upheld by secret (FISA) courts. We are governed by democratically elected officials who are then legally bound to not reveal violations of the constitution to those they are elected to represent. Citizens can no longer even pretend that they have done their civic duty merely by participating in the electoral process. What, in your opinion, could, and should, Mark Udall have done, and when should he have done it? Would he have risked as much as Snowden if he had acted?

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Don Thayer 1 year, 5 months ago

James Madison would NOT approve, he would be rolling in his grave. Mark Udall is NOT doing far more than most in Congress, he is absolutely complicit in allowing the U S Government to spy on Americans. He knew of it and had an obligation to tell 'We The People' that it was happening and to demand Congress, the Senate, and the President put a stop to it immediately. Instead, he sat back and watched until a real American made it public. Is he demanding whistle-blower protection for Snowden? No, he isn't. Clapper already knowingly lied to Congress, admitted it, yet Udall isn't demanding charges be brought against him. Udall is ASKING how the Patriot Act is being interpreted when he should be TELLING him how it should be interpreted. Rob, man up and call Udall out on this like you should be doing.

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mark hartless 1 year, 5 months ago

Gubbamint needs to spy on it's citizens for "security" reasons; yet security is not important enough for them to "secure" the border.

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rhys jones 1 year, 5 months ago

Secure the border? You're kidding!! Free Trade, Globalization, we welcome everybody, preferably workers who will get Chase Bank accounts. They're tight with the Fed.

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mark hartless 1 year, 5 months ago

Since they (the gubbamint) know every word of every communication then you might think they could help people like Hillary Clinton and the head of the IRS recall what they can't seem to recall about the possibly illegal orders they gave concerning Bengazi and intimidation of pollitical opponents...

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rhys jones 1 year, 5 months ago

I mentioned my guru's email remailer, which threw off the feds' tracking -- it was an email to a suspected terrorist (college professor in Texas) which found its way into the remailer, which caught the FBI's eye.

They're watching the wrong folks. The foxes are in the henhouse.

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mark hartless 1 year, 5 months ago

If we must live in a world where every thought and deed is known, recorded, and ready to be used against us, then can't we get every thought and deed of every beaurecrat out in the open as well?

How come the gubbamint knows how much I spent on which hotel in which city last year, which movies I watched, which drinks I purchased, etc, but can't seem to stop it's own employees from "sneeking" around those same "security" measures??

My life is an open book, theirs is still unknowable...??? BULLS**T

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rhys jones 1 year, 5 months ago

Yeah it does seem ironic, especially since their lives are so INTERESTING. Not to imply...

(just kidding, but really, if they're snooping YOU out, Mark, we ARE in trouble)

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