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National Security: Privacy

Joe Boyles: Guest Columnist

Often in this space, I like to remind the reader of our Constitutional legacy.  Madison is named for the fourth president, James Madison, also known as the “Father of the Constitution.”  You cannot pick up a serious periodical that doesn’t contain some mention of a Constitutional issue.  That’s quite a legacy.

Two years after the Constitution was ratified in 1787, Madison introduced the first ten amendments, more commonly known as the Bill of Rights.  They are largely rights to protect individuals from the heavy hand of the government, or a police state at the most extreme.  When the state decides, as dictators often do like Nazi Germany or Communism, that the state interests are more important than individual liberty, dangerous things can happen.

So today, we’re going to explore the issue of privacy enshrined in the Fourth Amendment which reads like this: “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 without probable cause, supported by an oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

What this means in common language is that we have a right to privacy and that can only be violated if a court finds that there is probable cause that we have broken the law and the judge issues a warrant.  This is a pretty big deal for Americans.  We guard our privacy jealously and have a Constitutional right to do so.  In early 1973, the Supreme Court ruled in the Roe versus Wade decision that this amendment was a basis for women’s right to abortion.  While I don’t agree with that logic, I offer it as an example of just how important the Fourth Amendment is.

There is a supposition floating about that the outgoing Obama Administration “wire-tapped” the incoming Trump Administration, listening to their conversations, particularly those with Russian officials.  If that is true, is there anything wrong with that?  No, not if there was a national security concern and the FISA (Foreign Intelligence Surveillance Act) court agreed to issue a properly constituted warrant as specified in the Fourth Amendment.

Is there anything wrong with incoming Trump officials speaking with foreign officials, including the Russians?  Probably not, assuming they were merely setting the stage for a new administration and its policies.

But assuming no wrong-doing, was it proper to release the names of the parties having a conversation?  That would most likely be a violation of the Fourth Amendment protection of privacy and against the law.  When Michael Flynn’s name was leaked following his phone conversation with the Russian Ambassador, that was improper.  Apparently the same thing happened with other Trump officials.

There is also the suspicion that outgoing national security advisor Susan Rice asked for the names of those caught in the wire-tapping for use in some political gambit.  That would be a serious violation.  Wasn’t this one of the primary motives behind the Watergate crimes that brought down the Nixon Administration four decades ago?

I suspect that if the Trump campaign “colluded” with the Russians to damage the Democrats during the 2016 campaign, we’d already have evidence to support that allegation, given the number of leaks that seem to be undermining the newly inaugurated Trump Administration.  So far, there isn’t any such evidence, and I suspect there won’t be any.  It’s time to move on to other matters much more important to the American people.

To flip the coin: there appears to be some evidence that the outgoing Obama Administration “spied” on the Trumpsters, either before or after the election.  There might have been justification for that, but on that point, we’re unsure.  Regardless, there does not appear to be any justification to leak the names of Americans innocently caught-up in those conversations.  That’s a violation of law.

We should all be concerned about matters of privacy protected by the Fourth Amendment.  This is a non-partisan matter.  There is no justification for Democrats to do this against their Republican opponents or for the opposite to occur.  When it is wrong, it doesn’t matter who is doing it.

The Bill of Rights is very important, for individual liberty as well as to rein in the excesses of an over-zealous government.  Thank you, Mr. Madison.

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