Rob Douglas: Udall and the 4th
July 4, 2013
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.