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Peter Van Buren, What We've Lost Since 9/11 (Part 2)

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This article originally appeared at TomDispatch.com. To receive TomDispatch in your inbox three times a week, click here.

When it comes to spying, surveillance, and privacy, a simple rule applies to our world: however bad you think it is, it's worse. Thanks to Edward Snowden, we've learned an enormous amount about the global surveillance regime that one of America's 17 intelligence outfits has created to suck into its maw (and its storage facilities) all communications on the planet, no matter their form. We certainly know a lot more than we did a year ago about what the government is capable of knowing about us. We've also recently learned a good deal about "big data" and what corporations can now know about us, as well as how much more they may know once your house is filled with "smart" technology.

Less is understood about how corporate surveillance is coming to the workplace, but sooner or later -- count on it -- the company or business you work for will be capable, via intelligent software, of monitoring every move you make, not to speak of everyone you may be in touch with while on the clock. The truth is, whatever the euphemisms, just about every imaginable way of knowing and surveilling you is here or on its way. In Oakland, California, for instance, you could mistake the anodyne name of "the Domain Awareness Center" for the latest in New Age spiritualism. In fact, as CNN recently reported, it's a "proposed central surveillance facility where authorities can monitor the Port of Oakland and the city's airport to protect against potential terrorism." Someday, it may integrate "live, 24/7 data streams from closed circuit traffic cameras, police license plate readers, gunshot detectors, and other sources from all over the entire city of Oakland." This means that, despite theoretically being on the lookout for terrorists (how many of those are there in Oakland?), it will be able to track you anywhere in the area.

It's no exaggeration to say that in our developing brave new world of surveillance, inside or outside your house, there will be nowhere that you aren't potentially trackable and surveillable, no space that is just yours and no one else's. This also means that, however bad you think it is, government and corporate employees somewhere are already creating the next set of processes, technologies, and facilities to monitor you in yet more vivid detail.

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Now, let's add rule two: however bad you think it is, you don't know the half of it. Yes, you've been following the Snowden NSA revelations, but no Snowden has stepped forward (yet) to reveal what the CIA or FBI or Defense Intelligence Agency or Department of Homeland Security or National Geospatial-Intelligence Agency is doing. And as far as the national security state is concerned, the less you know, the better. Take, for example, a recent Associated Press story with this revelation: citing "security reasons" (as always), the Obama administration "has been quietly advising local police not to disclose details about surveillance technology they are using to sweep up basic cellphone data from entire neighborhoods."

It might even be your neighborhood. In such a situation, it will be easy enough perhaps to forget the value of the sense of privacy in your life, whether you feel you have something to hide or not. Just yesterday, the Supreme Court put a rare brake on the loss of privacy, ruling that the police must have a warrant to search your cell phone after your arrest. In the second of a three-part series on the shredding of the Bill of Rights (amendment by amendment), State Department whistleblower and TomDispatch regular Peter Van Buren takes on the destruction of the protections for American privacy in the Fourth Amendment -- destruction that, if we're not careful, could soon seem as American as apple pie. Tom

Shredding the Fourth Amendment in Post-Constitutional America Four Ways It No Longer Applies By Peter Van Buren

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Here's a bit of history from another America: the Bill of Rights was designed to protect the people from their government. If the First Amendment's right to speak out publicly was the people's wall of security, then the Fourth Amendment's right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now in Post-Constitutional America.

The Fourth Amendment

A response to British King George's excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches: "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 Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as "unreasonable" in our old constitutional world, but no more.

Here, then, are four ways that, in the name of American "security" and according to our government, the Fourth Amendment no longer really applies to our lives.

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The Constitutional Borderline

Begin at America's borders. Most people believe they are "in" the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.

Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the "border search." The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally "reasonable" simply by virtue of where they take place. It's a concept with a long history, enumerated by the First Congress in 1789.

Here's the twist in the present era: the definition of "border" has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.

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Tom Engelhardt, who runs the Nation Institute's Tomdispatch.com ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and, most recently, the author of Mission Unaccomplished: Tomdispatch (more...)
 

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