By: the Common Constitutionalist
We all know of the giant $1.2 billion NSA storage facility in Utah. It tops out at over 15 times the size of Giants/Jets stadium and that’s just the part that’s above ground. 200 acres is evidently not enough room to store all the data to “keep America safe”.
In May of this year construction began on an additional 28 acre NSA site outside of Baltimore Maryland (and again, that’s just the part that we can see). Together they are seven times the size of the Pentagon. But don’t worry; they need all that acreage to “keep us safe”.
Many have complained of all that data being stored, but our government assures us that they aren’t reading our transmissions or listening to our phone calls.
They say they must monitor us all “in general” so they can better find the bad guys. That it is essential for the administration to issue “general warrants” allowing the NSA to spy on everyone.
So the question is, should we allow it to continue? Is it legal or even proper? Good questions. For answers, we conservatives always go back to our original documents: the Constitution, Declaration of Independence and Federalist papers as well as the founders actual statements.
But you may say, most of the surveillance is electronic. What did the founders know of that? Well, nothing of course. So what! A “general warrant” is the same, whether it is to intrude electronically or physically.
One has to go no further than the fourth amendment of the Constitution which states: “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 upon probable cause, supported by the oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That seems fairly straightforward. But where did it come from? One of the fourth amendment purposes was to prevent the new American government from doing what the British crown had perpetrated on the colonies for so many years.
Prior to the revolution, British courts issued “Writs of Assistance”, a type of general warrant. It gave the crown very broad search and seizure powers. The writs gave customs officials the power to enter private homes and businesses to search for smuggled or untaxed goods.
Writs of assistance not only gave British customs agents the power to search for illegal imports, but as the name suggests, it allowed them to command other government officials and even private citizens to assist them. A holder of a writ had the power to search any building or residence and confiscate any suspected contraband.
Writs of assistance were very similar to the data collected and stored by the NSA. Unlike a standard search warrant it was and is permanent, remaining in effect until six months after the death of the King in power when it was issued. Now that I think about it, NSA stored data is worse than a writ of assistance for a writ does eventually expire where NSA data is truly permanent.
Writs were such a concern to the colonists that in 1756 the colony of Massachusetts banned the use of general warrants, but it did no good for the crown superseded all colonial law.
Attorney and founder James Otis, Jr. describes general warrants as: “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that was ever found in an English law book.”
The issuance of writs had become so egregious as to be included among the specific complaints the signers of the Declaration of Independence laid out against King George III: “He has erected a multitude of New Offices, and sent hither swarms of officers to harass our people and eat out their substance.”
So as is always the case, if one wishes to find the answer pertaining to law or government one merely has to look back, not forward. I’d say the founders would be firmly against the NSA program, wouldn’t you?