The authorization of domestic spying without warrants amounts to nothing less than a surrender of our civil liberty, the precise thing that guarantees our freedom and makes us so different from those enemies of freedom from whom the Bush administration is so determined to protect us.
Expanding the power of federal agents to pry into private lives suggests that we have already surrendered in the war on terror. If we willingly sacrifice the privacy, civil liberties and individual rights that are the heart of our Constitution, have we not handed victory to the terrorists? If the terrorists have caused us to be so frightened and cowed that we are willing to summarily dispense with the rudiments of our freedom, we have effectively capitulated to our enemies.
In keeping with the system of checks and balances devised to prevent any branch of government – particularly an executive seeking to assume the trappings of a monarch – from acting in derogation of the rights of the people, the showing of probable cause to a court of competent jurisdiction was established in the Fourth Amendment as the fundamental protection of individual liberty.
The administration has seen fit to unilaterally and fundamentally change that system to one in which the executive alone decides who is secure in his or her personal liberty. It has the remarkable effect of a constitutional amendment accomplished in secret. Essentially, an “except for the following circumstances” clause has been added to the Fourth Amendment, with government agents free to fill in the blanks as to what circumstances might apply.
The horrific acts of 9/11 called on the full measure of our determination to eradicate an evil enemy of civilization and decency. So long as wholesale murder is deemed to be a viable means to a political end, when killers are knighted as freedom fighters, there can be no peace and no context for justice and prosperity. Those who practice such barbarism cannot be permitted to roam freely, and we were vested with the right, and indeed the responsibility, to respond with the full measure of our capacity.
But that bloodthirsty attack did not constitute a justification for secret acts that diminish the rights of American citizens to be secure against invasions of their privacy by federal agents. On the contrary, it called on us to display an emphatic appreciation for the freedoms with which we have been blessed – the things that set us apart from the forces of hate and destruction.
Freedom is the most powerful weapon against enemies who recruit from the ranks of those burdened by hopelessness fostered by being subjects to the yoke of tyranny. In the face of such an enemy, we should be wearing our freedoms proudly on our sleeves, not surrendering them in covert eavesdropping operations against our own citizens.
We have established a system in which a secret federal court serves to expedite search warrants in national security matters while providing the judicial oversight called for in the Constitution. The president, by executive order, set up a separate system to bypass the court in connection with matters federal agents determine are related to terrorism. Not only does such a system deprive citizens of the fundamental right to judicial review for probable cause, it also ignores the duly enacted legal process set up by the legislative branch to address these very matters.
This administration needs to be held accountable for failings in connection with squandering the worldwide sympathy and outrage of the international community in response to 9/11. But the clandestine abrogation of our constitutional liberties is of far greater consequence than any administrative bumbling. It strikes at the heart of who we are as a nation, which established self-government by the people under the protection of law.
If the terrorists have taken from us the freedom that makes us who we are, we have given up our identity as a people. Our Constitution and laws provide the means of our domestic protection against acts of evil but do so in a way that ensures that government intrusion is permitted only where the courts determine that probable cause exists.
The terrorists apparently have frightened the president into giving up that assurance against tyranny. If he was going to surrender that constitutional right on our behalf, he should have at least told us first.
Raymond Daniel Burke is a principal in a Baltimore law firm. His e-mail is firstname.lastname@example.org.