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JDPriestly

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Member since: Sat Dec 6, 2003, 04:15 AM
Number of posts: 43,253

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Thurgood Marshall's dissent in Smith v. Maryland (1979).

We are hearing a lot about Smith v. Maryland these days. In that case, a majority of the members of the Supreme Court determined that the police did not violate the Fourth Amendment rights of a suspect when they obtained the suspect's telephone metadata or a pen register of the suspect's calls from the telephone company without a warrant. That decision concerned the records of a person who was reasonably believed to be a suspect that had committed a crime. And at that time, the government did not have the ability to correlate and map out the relationships between all kinds of people based on e-mails (which did not exist) and telephone records and records of other electronic communications.

Here is a brief excerpt from Thurgood Marshall's dissent to the majority of the Court's decision in that case:

The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise ignores the vital role telephonic communication plays in our personal and professional relationships, see Katz v. United States, 389 U.S. at 389 U. S. 352, as well as the First and Fourth Amendment interests implicated by unfettered official surveillance. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. See NAACP v. Alabama, 357 U. S. 449, 357 U. S. 463 (1958); Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 695 (1972); id. at 408 U. S. 728-734 (STEWART, J., dissenting). Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

. . . .

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., post, p. 442 U. S. 746, and MARSHALL, J., post, p. 442 U. S. 748, filed dissenting opinions, in which BRENNAN, J., joined. POWELL, J., took no part in the consideration or decision of the case.

http://supreme.justia.com/cases/federal/us/442/735/case.html

About Thurgood Marshall:

http://en.wikipedia.org/wiki/Thurgood_Marshall

As usual, Thurgood Marshall understood far more, saw much further and was more compassionate and faithful to justice for all than his colleagues on the Court.

As liberals, we should raise our voices to echo the wisdom and guidance of Marshall with regard to the massive eavesdropping in which our government is engaged. PRISM and other related and similar programs present dangers and extremism that was not presented in Smith v. Maryland. I believe that, over time, as more facts are presented to the Supreme Court, Smith v. Maryland will be overturned in part or in whole. Think about it. Marshall was truly a prophet in his dissent in Smith v. Maryland. His death was a great loss to our country.

I repeat because I just love this quote:

Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

There was no internet in 1979. The government was not doing massive

surveillance in 1979. Smith v. Maryland has only very limited, very marginal relevance to the program we are discussing now.

It will probably take a long time and quite a few decisions, but eventually, the Supreme Court will realize that this massive surveillance is incompatible with the Constitution on a number of grounds.

Not only does it deprive individual Americans of their innate right to express themselves freely with each other, but it elevates the executive branch of our government far above the others by giving the executive the authority to collect the metadata on anyone serving in the other branches as well as anyone running for office for the legislature. Thus the separation of powers is jeopardized, actually nonexistent when the executive can spy on the members of the other branches of government. So we have a constitutional crisis. A lot of people don't understand that, but that is where we are. Smith v. Maryland has nothing to do with the current situation. It dealt only with the Fourth Amendment issues and its use in convicting a criminal. It did not concern collecting information on law abiding citizens with absolutely no reason to do it other than that it is possible o do it.

In Smith v. Maryland, Thurgood Marshall dissented saying among other things:

The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise ignores the vital role telephonic communication plays in our personal and professional relationships, see Katz v. United States, 389 U.S. at 389 U. S. 352, as well as the First and Fourth Amendment interests implicated by unfettered official surveillance. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. See NAACP v. Alabama, 357 U. S. 449, 357 U. S. 463 (1958); Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 695 (1972); id. at 408 U. S. 728-734 (STEWART, J., dissenting). Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

. . . .

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., post, p. 442 U. S. 746, and MARSHALL, J., post, p. 442 U. S. 748, filed dissenting opinions, in which BRENNAN, J., joined. POWELL, J., took no part in the consideration or decision of the case.

http://supreme.justia.com/cases/federal/us/442/735/case.html

About Thurgood Marshall:

http://en.wikipedia.org/wiki/Thurgood_Marshall

He was a liberal and one of the most distinguished and best Supreme Court Justices in the history of our nation.

It is not uncommon that the Supreme Court confronting new facts turns to a dissent in a former case for guidance in issuing an opinion. And the Thurgood Marshall dissent in Smith v. Maryland is an excellent dissent, well reasoned.

The facts in this massive surveillance system that permits analysis all the metadata to create a picture, a sketch of someone under surveillance and their connections are very different from those in Smith v. Maryland in which a suspect's telephone records were obtained without a subpoena. In Smith v. Maryland, the police were examining the records of a specific person without a warrant. They were not just willy-nilly examining all connections of most of the communications of masses of people. They did not have the computer capacity to handle that much information.

So I would not count on Smith v. Maryland's precedent. The facts are very different. Smith v. Maryland might carry the day in some decisions for a few years, but if we continue to have anything resembling our current constitutional government, Smith v. Maryland will eventually be overturned, I think, at least with regard to this massive surveillance.

In addition to everything I have already explained, the authorities who are collecting this so-called metadata have the ability to make a lot more sense of it by using computers than they did in 1979. I would also like to point out that in 1979, the government was not collecting the metadata of members of Congress or of members of the judicial branch of government.

This new surveillance does not just raise 4th Amendment issues but also raises 1st Amendment and other human rights issues as well as separation of powers issues. Thurgood Marshall -- as usual a visionary who saw much further than his contemporaries on the court.

Sorry if I am rambling. It is getting late.

The police crackdown on the Occupiers was pretty horrible.

The executive has a reach into the metadata of everyone in every branch of government as well as every activist in every party, everyone with a political opinion or a complaint.
Wall Street colluded to fix interest rates and just about everything else and no one has been prosecuted.
Lenders committed fraud in order to foreclose on homeowners who had been goaded into mortgages that cost more than the houses that were their security, but no lenders were prosecuted, not to speak of anyway.
We have seen fraud upon fraud, no indictments.

And meanwhile, our government is spying on all our metadata, knows who we call, when, who we e-mail, when and all our financial relationships, all our family and friends and just how often we are in contact with them.

But it's all cool because only a few people have been arrested or beaten by the police. Only a few have lost their jobs. Only a small percentage of homeowners lost their homes. Only a small proportion of Americans declared bankruptcy. So it's all cool with the government snooping on our private business.

"We think we are free."

http://www.press.uchicago.edu/Misc/Chicago/511928.html

"What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could not understand it, it could not be released because of national security. And their sense of identification with Hitler, their trust in him, made it easier to widen this gap and reassured those who would otherwise have worried about it.

"This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes. And all the crises and reforms (real reforms, too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter.

. . . .
. . . "The dictatorship, and the whole process of its coming into being, was above all diverting. It provided an excuse not to think for people who did not want to think anyway. I do not speak of your ‘little men,’ your baker and so on; I speak of my colleagues and myself, learned men, mind you. Most of us did not want to think about fundamental things and never had. There was no need to. Nazism gave us some dreadful, fundamental things to think about—we were decent people—and kept us so busy with continuous changes and ‘crises’ and so fascinated, yes, fascinated, by the machinations of the ‘national enemies,’ without and within, that we had no time to think about these dreadful things that were growing, little by little, all around us. Unconsciously, I suppose, we were grateful. Who wants to think?

"To live in this process is absolutely not to be able to notice it—please try to believe me—unless one has a much greater degree of political awareness, acuity, than most of us had ever had occasion to develop. Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted,’ that, unless one were detached from the whole process from the beginning, unless one understood what the whole thing was in principle, what all these ‘little measures’ that no ‘patriotic German’ could resent must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing. One day it is over his head.

. . . .

But, the fact that a court order requires Verizon to maintain

all records which means they are available for mass subpoenaing by the government is not in question.

I think that the Obama administration needs to be far more "transparent" (his word, his promise) than it is being.

And this is in addition to the fact that ordinary, harmless grandmothers like me are being put through a wringer when we try to go visit our families and pass through airports. If the intrusion on our privacy were not enough, the money spent on this while our bridges and schools deteriorate is deplorable.

I could but a ten-foot fence around my house. But I have other priorities. That is the question. What are the priorities of our government? What are our priorities?

That's the question.

National security means more than just sifting through our e-mails and phone calls. It means repairing our bridges, our schools, making public spaces available for democratic assembles.

The real question is what kind of nation are we? One in which we huddle in fear in our cocoons, in our homes, while homeless people are left to starve on our streets so that we can "fight" terrorism with a massive fear campaign?

Or are we to be a compassionate, enlightened nation that is to be a beacon of freedom, liberty and and equality for all the world?

We are at a crossroad here. We have to choose.

Do you want to spend the rest of your life cowering in fear that you might say the wrong thing in an e-mail or to a neighbor? Or do you want to live free as Americans always have.

These NSA programs suggest to me that we are becoming a nation of suspicious cowards. Why? We have so much to be proud of.

And contrary to what conservatives think, I have lived outside the US for years. Americans are respected and loved. Sometimes ridiculed. Sometimes questioned. But respected and loved. Let's don't change who we are because of a few fanatical terrorists. Please. We must remain a nation of FREE PATRIOTS, not become a nation of cowering ninnies.
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