Presumption of Guilt

For the last couple of months, I have been following the NSA scandal, but there have been too many other things going on for me to find the time to sit and down and write exactly what I want to say about this. I should clarify that while I find it interesting to try and ascertain whether the NSA’s indiscriminate monitoring of people’s phones was constitutional, constitutionality does not impact my views on the matter. For almost eighty years, Constitution got something as cut and dry as slavery wrong, so it would hardly be shocking if it got something as intricate as the proper balance of civil liberties and security wrong also. And if paper and ink written by fallible humans is considered the be all and the end all, God help us all. Still, taking into account that in their wildest dreams, the framers probably never envisioned that the NSA scenario would ever even be possible, my reading of the Bill of Rights strongly suggests that what the National Security Agency did was unconstitutional. The text of the Fourth Amendment 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.” Clearly, there is a constitutional guarantee of privacy, and while the amendment is worded vaguely, it’s hard to call monitoring millions of law abiding people’s phones “reasonable.” Conservatives and liberals alike who demand that the Constitution must always be followed will have a hard time defending the NSA’s actions.

My personal view is that the NSA’s monitoring of phones was inexcusable. It is perfectly justifiable to monitor a person’s phone if there is enough evidence of their possible terrorism or criminality to obtain a warrant. The NSA tried to eliminate that part of the equation by not even attempting to only tap the phones of terrorists. Instead, they decided to tap everyone’s phones in the hopes of catching some terrorists. This bears some resemblance to a scene in The Dark Knight, when Alfred tells Bruce of a bandit in a Burman forest that he dealt with while serving in the British Army’s Special Air Service. Bruce asks if he ever caught the bandit, and Alfred replies that he did. Bruce asks how, and Alfred says, “We burned the forest down.” Part of the point of warrants is that there has to be evidence that the specific person being investigated might be guilty of wrongdoing. The NSA, however, has treated the entire populace as a suspect, and everyone is presumed guilty until proven innocent. President Obama has stated there is no domestic spying program in the United States. President Obama, I love you, but that statement is false, and you know it. Nobody should believe that we have entered a new age of authoritarianism. Civil liberties have always been in a precarious position in America. For instance, real freedom of speech was not established in the United States until the early 1990s. An entire book could be written about the blatant free speech violations practiced by government in America before then. People like Supreme Court Justice William O. Douglas who wanted the government “off the backs of people” have often been like lonely voices in the wilderness, and Douglas himself took a number of years and getting passed over for both the vice presidency and the presidency to embrace that stance. Still, it would be beneficial for the country if the revelation about the NSA served as a wake up call. Five years ago, the idea of a United States government agency tapping every person’s phone would have struck many people as something out of a dystopian novel. Now, we know it is reality. Sometimes, the truth is stranger than fiction.

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