Wire Taps and the Writs of Assistance, by Matt Wilding

An argument against wire taps with historical ideological evidence.

In 1761, a Boston lawyer named James Otis made a lengthy speech in a British Royal Court against the Writs of Assistance, a British law that in essence allowed for general search and seizure of colonial property without probable cause. As many Bostonians watched on, a young John Adams among them, Otis argued passionately for the privacy rights of the people of Massachusetts. He lost.

Although the Writs of Assistance were not overturned, many including Adams and his sometimes friend Thomas Jefferson recognized later that this moment was the beginning of the American Revolution. While the War for Independence was an effect of the Revolution, the Revolution itself was one not of swords, but of ideas. It was a movement where people believed that the power of government should lie with the governed. Today that power is threatened.

In a frenzy of media coverage, the modern day fight against the modern day Writs of Assistance exists in the executive office’s controversial wire-tapping program. The Bush administration has put in a valiant effort to prove to Americans that no laws have been violated, and that any and all opposition to this kind of activity is purely partisan. Karl Rove went so far as to say “some important Democrats seem to disagree” with the executive office’s right to find out why a member of al-Qaeda is calling an American citizen. He failed to mention that many Republicans feel the same way. He also failed to mention how they established who was getting calls from the terrorist faction and who just had relatives overseas.

George W. Bush himself has also publicly defended himself. In a speech in Kansas today, Bush defended his wire-tapping program, echoing Rove’s testimony that if Americans are communicating with the enemy, he has the right to know why. It seemed to escape him that if he could prove that an American was communicating with a terrorist operative, he would have very little trouble acquiring a warrant to tap their phones. Perhaps it’s all the paperwork. Apparently he has opted instead to violate the Fourth Amendment of the United States Constitution, which states:

“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.”

Although there is no mention of the telephone in this amendment, let us not be deceived. The means of communication at the time of writing was letters, and “papers” is listed among those things protected. It follows then that communications are protected from “unreasonable searches and seizures”. Luckily, proponents of the Bush administration have an answer for this, too. According to former NSA leader General Michael V. Hayden, these wiretaps are based on reason. As reported in today’s New York Times:

“The standard laid out by General Hayden – a ‘reasonable basis to believe’ – is lower than ‘probable cause,’ the standard used by the special court created by Congress to handle surveillance involving foreign intelligence.”

See, its fine! Reasonable basis isn’t as strict as probable cause. Precedent isn’t important as long as we’re being reasonable. The President echoed Gen. Hayden, pointing out that the Supreme Court had recognized his ability to expand his powers during the war on terror in the Hamdi V. Rumsfeld case, which involved an American citizen arrested in Afghanistan for fighting alongside the Taliban, and was not allowed his Constitutional right to a trial by jury of his peers or access to a lawyer. However, as the New York Times briefly pointed out today, the Supreme Court ruled against the government in this case. Although the court was ruled against many of Hamdi’s claims, it did not establish new war powers for the executive office. Further, although taking up arms against the United States makes one an enemy combatant according to the majority decision written by Hon. Sandra Day O’Connor, the fact of American citizenship awarded him at least a limited judicial review. The case did not, however, revoke the rights of American citizens who had not taken up arms against the United States. As such, citizens being wiretapped are protected by the Fourth Amendment.

We are living in an important time. Many are brushing off what is happening, apathetically saying that they have nothing to hide, so the wire taps don’t worry them. It isn’t about us having something to hide. It is about our right to do things without the government watching our every move. It is about our right to meet, discuss, and revolt. In a free society, a citizen is not monitored without probable cause and a warrant issued by a judge. If we violate that bureaucracy, we will fall into the hands of tyranny. Whether or not the current administration are the tyrants or not is a non-issue. The point is that if nothing else, they leave the door open of a later tyrant, and tyranny, economic such as in the 18th century or ideological today, is something we will not stand for.

originally published at www.thefutureofprogress.com