Out of the Woods

How secure are we? – 2

Authoritarian governments have always told their subjects that the government's coercive and violent acts were necessary in order to protect the people. The inquisition protected the faithful against helpers of the Devil. Stalinist violence was justified by the alleged threats of capitalist reaction and its plan to overthrow the socialist society. Nazi coercion was said to protect the German people against the international Jewish conspiracy and against communism. Episodes of right wing hysteria in our own country were defended on the grounds that they protected us from a communist threat.

The same tired authoritarian rhetoric has become commonplace once again in the last few years as the government has arrogated to itself new powers which are clearly denied it by our Constitution. The Fourth Amendment of the Constitution explicitly protect citizens against “unreasonable search and seizure” and demands a warrant before the police can enter your home to search it, before law enforcement can listen to your phone calls or read your e-mails.

The Fourth Amendment to the Constitution was motivated by the experience of the American colonists of having the British customs services search merchandise and confiscate it without giving the citizens any recourse. Hence the importance of the Fourth Amendment is not only in the demand that law enforcement obtain a warrant before searching your house or arresting you. The importance of the Fourth the amendment lies in the publicity of this requirement. If the police come to your door they have to show you the warrant. They may not enter your house when you are not home.

The reasons for that are obvious: only if the warrant is public, only if you know about it, only if there are no secret invasions of your home or your privacy, can you complain by going to court and challenging the government action.

Your safety as a citizen depends on this ability to challenge the government action. You cannot challenge actions you do not know about. The legal system manages to protect us if we are informed about government actions against us and are given an opportunity to defend ourselves, to bring in evidence and witnesses to show that the government action against us is unjustified or even illegal.

This safety of the citizen is threatened by the USA Patriot Act and by the whole institution of the FISA courts.

The USA Patriot Act allows police to enter your house when you are not home. It may secretly enter your house, confiscate items or install various forms of listening devices. Because these actions are secret, you are in no position to challenge them. Your freedom as a citizen is suddenly limited in very serious ways.

The FISA courts were instituted in 1978 after the government had been caught performing illegal wiretaps on political enemies of the president. The original intent was merely to put an end to using law enforcement for clearly political purposes. Over the years, both the courts themselves and their functions have been expanded. Now the FISA court can allow the national security agency to demand extensive records about phone calls from the phone companies and monitor our actions and communications in other ways.

In order to obtain permission for citizen surveillance, the government needs to go to the secret FISA court and ask for a secret warrant for its surveillance.

Many critics complain that the government does not need to allow the other party to appear before the court. But that is unreasonable. When the police applies to a court for an arrest warrant for a person they consider a criminal, that person is not informed and is certainly not allowed to make a case before the court. But once I am arrested, I go to trial and can there defend myself.

The problem about the FISA courts is its secrecy. These courts have given the government authority to monitor many of my activities. Were it not for Edward Snowden and others we would not even know about that. But now we are still not able to challenge these FISA court warrants in the regular court system, because the government will say that FISA court proceedings are secret and therefore cannot be discussed, let alone challenged.

Once court proceedings become secret, citizens lose their ability to challenge the government. A country where citizens may not challenge the government is by definition an authoritarian country.

The US government trumpets American freedom while it tramples them in the FISA courts. To preserve our freedoms those courts must be abolished.