A Stitch in Haste

In Part One I discussed an warrantless wiretapping apologist’s op-ed in the Wall Street Journal.

The New York Times had a comparable piece. Most of it is the same talking points and obfuscation as the other apologist arguments (e.g., falsely asserting that only “known terrorists” are being monitored, insisting that even secret and retroactive FISA warrants are too much of a hassle, etc.).

But this part caught my eye:

The purpose here is not to detect crime, or to build criminal prosecutions — areas where the Fourth Amendment’s warrant requirements are applicable — but to identify and prevent armed attacks on American interests at home and abroad.

This is, of course, utter nonsense.

The words “criminal” and “prosecution” appear nowhere in the Fourth Amendment. The conduct of trials (i.e, “prosecutions”) is covered by other Amendments. The Fourth Amendment is about investigation and makes no distinction between “mere” crime or terrorism or any other form of government intrusion upon privacy.

Also, while I don’t claim to be a expert on the history of the drafting of the Constitution or the Bill of Rights, it seems to me that the Framers were essentially deemed “terrorists” by the Crown during the Revolution, and they were hunted down, spied upon — and in some cases hanged — not for being “mere criminals,” but rather for being subversives intent upon overthrowing the “rightful” government and the “colonial way of life.”

And it also seems to me that, when the Bill of Rights was being drafted and ratified, it was about the loss of privacy in the name of “defending the government” that the Framers were thinking about, regardless of context.

To claim that the Fourth Amendment applies exclusively to criminal prosecutions and not other excessive intrusions by government is either willfully dishonest or mind-bogglingly ignorant. Argue about the meaning of “excessive” if you want, but don’t twist the meaning or context of the Fourth Amendment itself.

I say again: the apologists doth protest too much.

More thoughts at De Novo, California Yankee.