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March 13, 2017

The use of “general warrants” or "writs of assistance," a practice heavily relied upon by the British in the mid-1700’s, is believed by many to have fueled the American Revolution more than taxation.  King George II and III authorized their use during their reign hoping to subdue the American rebellion.  One author wrote, “Using "writs of assistance," the King authorized his agents to carry out wide-ranging searches of anyone, anywhere, and anytime regardless of whether they were suspected of a crime.”  Customs agents often used these warrants to inspect homes, warehouses, personal property without restrain. A warrant remained valid for the life of the monarch.  Once issued, no judicial oversight or probable cause restrictions followed. The governmental power gained from this legal tool chilled freedom.  

Although James Otis, a Boston attorney, failed in his attempt to squash the issuance of a new warrant when King George II passed away, his effort according to John Adams “breathed into this nation the breath of life.”  The existence and use of these “hated writs” spawned the 4th Amendment.  Madison heavily used Massachusetts’ Constitution which “forbade warrants that did not specify the “persons or objects of search, arrest, or seizure.”  In 1967, the Supreme Court affirmed that the 4th Amendment rights apply to wire-taps of phone conversations.  

In recent years, the government has been taking a different approach believing that danger from abroad opens a door to a different practice.  The National Security Agency’s domestic spying program empowers them to collect private information mostly from innocent Americans looking for “suspicious patterns.” Madison once wrote, “Perhaps it is a universal truth, that loss of liberty at home is to be charged against provisions against danger, real or pretended, from abroad.”

In 1978, Congress pass the Foreign Intelligence Surveillance Act, authorizing spying on foreigners physically present in the United States. Today this power has morphed itself into U.S. “spies” accessing in real time all phone calls, computers, and any other digital data of every American including Presidents, Supreme Court Justices, law makers, business owners, and everyone else.  This access comes again without any public court oversight.

The interesting spin used today is spies seeking to control powerful individuals such as Presidents.  The recent Michael Flynn leaks illustrate the dangers from this practice.  Someone in the intelligence world illegally leaked a benign conversation Flynn had with the Russians shortly after the election.  The intent was clear.  Enemies of President Trump; believed to be former Obama hires, illegally and purposefully leaked wired-taped conversations with the purpose of influencing our government.  This dangerous practice of unelected “spies” covertly attempting to undermine government officials is an affront to constitutional safeguards we hold sacred.  

Mark, Bill and John