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Member since: Sat Dec 6, 2003, 05:15 AM
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K&R. Every DUer should read this.

I am posting the link again so that I can put it on my journal and cite to it in Hillary Clinton threads. It points precisely at the problem with a Hillary Clinton candidacy.

Fool me once . . . . as George W. Bush once tried to say.

We have been fooled for the past 34 years. I for one am tired of it.


Jefferson, who was the victim of much false gossip printed by irresponsible newspapers,

complained about the lies that were printed in the press, but absolutely defended the freedom of the press. He stated over and over that the laws protecting us from slander and libel are all we need. Beyond that the court, (the magistrate) should leave the press alone.

There is a long computer page of quotes from Jefferson explaining that without absolute freedom of the press, we have no freedom for individuals.

"Considering [the] great importance to the public liberty [of the freedom of the press], and the difficulty of submitting it to very precise rules, the laws have thought it less mischievous to give greater scope to its freedom than to the restraint of it." --Thomas Jefferson to the Spanish Commissioners, 1793. ME 9:165

"It is so difficult to draw a clear line of separation between the abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, rather than the magistrate, with the discrimination between truth and falsehood. And hitherto the public judgment has performed that office with wonderful correctness." --Thomas Jefferson to M. Pictet, 1803. ME 10:356

"Printing presses shall be free except as to false facts published maliciously either to injure the reputation of another (whether followed by pecuniary damages or not) or to expose him to the punishment of the law." --Thomas Jefferson: Notes for a Constitution, 1794.

"Printing presses shall be subject to no other restraint than liableness to legal prosecution for false facts printed and published." --Thomas Jefferson: Draft of Virginia Constitution, 1783. ME 2:298, Papers 6:304


Our government is not supposed to keep so many secrets from us. The Founding Fathers (maybe with the exception of Adams) would be turning over in their graves today if they knew how our government keeps secrets from the American people.

“Let the people know the facts, and the country will be safe.”
Abraham Lincoln

“The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”
Patrick Henry


You and I are the victims of the NSA surveillance.

Communism employed various techniques to place people under surveillance.

As a result, people in Communist countries whispered about their discontentment in life, their distrust of the government, their fear of ostracism, lest they suffer perhaps loss of income, loss of opportunity for themselves and their children due to some slip of the tongue, some unacceptable opinion they might have expressed, some small indiscretion that was picked up by an informant.

The NSA spying is far more intrusive than the spying the Communists did.

Who knows how many people have lost their jobs because of the spying?

We have no way of knowing. And we have no way of knowing how many people could lose a job or be viewed as dangerous by the NSA and your local police who will, if they do not already, get information from the NSA.

Government spying is a waste of time and money. We agree on that. But many people are employed as government spies by the NSA. Since what they do brings no reward to our country, how are they to justify the expense and time spent on it?

Here's how: they will find new, very practical uses for the information they discover -- like informing employers of disgruntled employees.

Truman signed the NSA into law in 1952.

"Originating as a unit to decipher coded communications in World War II, it was officially formed as the NSA by President Truman in 1952."


I quote this:

It (The NSA) was very quickly assigned the task of intercepting and collecting "foreign intelligence from foreign communications or foreign electronic signals" and entered into "'a secret arrangement' with ITT, RCA Global Communications, and Western Union" to gather millions of cables sent by Americans to foreign recipients.

Morton Mintz and Jerry S. Cohen Power, Inc. (Macmillan 1976) page 376.

At that time, according to Mintz and Cohen, the NSA was collecting millions of cables "which had been sent by American citizens in the reasonable expectation that they would be kept private." Mintz, Power, Inc., age 376.

The NSA set up a watch list of American citizens with suggestions for inclusion on the list from the Bureau of Narcotics. General Lew Allen, Jr. stated that when he took responsibility foe the NSA in 1973, he got rid of the watch list.

Mintz and Cohen at pages 376-377.

Congress finally ended the collection of the international cables (supposedly) in 1975.

"The NSA has the capability 'to monitor anything' Senator Church . . . warned. That capability 'could be turned around on the American people,' he said. 'And no American would have any privacy left. There would be no place to hide. If a dictator ever took charge in this country, the technological capability that the intelligence community has given the Government could enable it to impose total tyranny.'"

Mintz and Cohen, at page 377.

But here we are. The program either did not end or was revived. (Was Cheney's presence in the executive branch in the Nixon and Bush administrations just a coincidence? Did the NSA conduct surveillance on virtually all international communications with the US after it was instructed to stop? I don't know.)

Today, we are more dependent on electronic communications than ever before. Therefore, the NSA activities intrude on more of our communications and into our private lives more than ever. This is particularly true because the collection of our communications is now arguably being done within the US. And the collection of metadata is most definitely being done in the US.

We need to make sure that Congress is exercising adequate oversight on NSA activities. And we need to curtail and open up to the public more about what those activities are.

The secrecy of the NSA programs since the beginning of the agency is quite troubling. Sen. Church was right in 1975 and is right today.

American citizens should, in my opinion, be protected regardless of where they are in the world. But that is my opinion.

The NSA is out of control is my guess.

Some good legislation has been proposed to get the NSA under control. But we tried that before and it did not work. We already have the CIA and the defense intelligence agency. We need to prevent the intelligence system from becoming the enemy of the people. I don't think they are that yet, but the potential is there. And that is a dangerous matter.

The essential thing to remember is that neither the Constitution nor the

government gives us the rights listed in the Bill of Rights. These are rights that belong to us no matter what our government says about it. The Supreme Court may curtail or abridge or diminish these rights in its decisions, but they still belong to us. When the Supreme Court defines the Fourth Amendment rights in a narrow way, the law will enforce that Supreme Court decision, but it is wrong because the right belongs to us. It is not even up to the government to recognize that right. The Supreme Court has, in my opinion, defined the First Amendment right too narrowly. And crazily. While it defines the right of corporations to spend money as speech and thus unlimited and not subject to regulation, it defines the right of people to speech, assembly and to petition the government as subject to reasonable regulation. There is a disconnect in the interpretation of the First Amendment. I am hoping that someone will notice the discrepancy. Unlimited campaign expenditures by the corporations but limited right to assemble, speak and petition the government for the rest of us. What?

The Fourth Amendment rights are some of the rights that are born with us, they are innate to us. (The Bill of Rights does not list all the rights that are born in us -- like marriage which has been recognized as a fundamental right.)

The problem is not whether any law or other constitutional provision can supersede or precede a right listed in the Bill of Rights.

The problem is how to apply the language of early America that is used in the Constitution to our modern technology. The Fourth Amendment recognizes our innate right to privacy in our lives and in our personal and real (real estate) property.

That cannot be changed. The executive branch of our government has to get a warrant based on probable cause with the specificity described in the Fourth Amendment before it takes or searches our private property. The NSA has not been doing that. The Court will have to decide how to apply the Fourth Amendment, how to reserve our privacy rights in the face of the technology we now have.

Because this is such an important issue and because the technology now at the government's disposal is so invasive, so capable of depriving us of any right to privacy without our even realizing that we have been violated, it will take a long time and many decisions before the Supreme Court comes to terms with its task.

Because we have so many conservatives on the Court, we may have to suffer a lot of grief, see a lot of overstepping by the executive branch (and maybe by Congress) before the country wakes up to the dangers that the use of that technology presents.

In a way, the potential in the surveillance technology and some of our other technology such as medical technology is as dangerous to our personal freedom and our country, maybe the world as nuclear weapons. We just don't realize it yet.

Stephen, it's more complicated than that.

Here is the text of the Fourth Amendment because we should never lose sight of what we are talking about:

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.


The comment at that website states that the Fourth Amendment focuses on the security and protection of the home. In fact, some of the early, pre-revolutionary cases that are believed to have given rise to the Fourth Amendment had nothing to do with the privacy of the home.

John Adams' defense of John Hancock based on an insufficient warrant concerned the Liberty, a ship, not Hancock's home. The Fourth Amendment does not specifically mention the home. The assumption that the Fourth Amendment is about protecting just the home seems absurd to me. It is not supported in the history of the revolutionary period.

The trigger for the dispute between the American revolutionaries and the British government was the British government's enforcement of import duties and restriction of trade in the American colonies. The British government wanted to tax and control the products that Americans brought in. To this end, they issued general warrants that permitted the British to enter the businesses, ships and homes of Americans to search for illegally imported items.

Here is an article in the Indiana Law Journal that discusses the likely original intent of the drafters of the Fourth Amendment. Madison drafted the Fourth Amendment for our Constitution based on the work of John Adams.

Do read the whole article, Stephen Leser. I hope you enjoy it.

[Vol. 8679
Several themes that found later resonance in John Adams’s views and in Fourth
Amendment jurisprudence can be seen in Thatcher’s arguments, including the
acknowledgement of probable cause as a standard to measure the propriety of an
intrusion, a concern with standardless discretion, and the temporary nature of
warrants. Still, it was Otis who inspired Adams, and many of the principles that
Otis advocated found a place in Adams’s writings and subsequent search and
seizure constitutional provisions. Specifically, significant aspects of Otis’s
arguments became elements of Article 14 and Fourth Amendment structure and
jurisprudence. They include the following: identifying the right to be “secure” as
the interest implicated by a search or seizure; listing the home as a protected place;
utilizing the common law search warrant as a model for when warrants can issue;
defining unjustified intrusions as “unreasonable”; and indicating that probable
cause based searches and seizures are proper. More broadly, Otis’s concerns about
the need for certain procedures, the scope of intrusions, and the arbitrary use of
authority, have had continued importance in search and seizure jurisprudence to
this day. Underlying all of those arguments and principles was a quest for objective
criteria to measure the legitimacy of a search or seizure.

. . . .

Many of the state governments at the time of the American Revolution adopted
legal protections against unreasonable searches and seizures. . . . Those protections,
embodied in the constitutions of the various states after declaring their
independence, typically addressed only abuses associated with general warrants. The Massachusetts Constitution, drafted by John Adams in 1779 and adopted by the Commonwealth in 1780, offered a much different model. The constitution Adams created was preceded by a “Declaration of Rights,” including a search and seizure provision that ultimately became Article 14, which provided:
Every subject has a right to be secure from all unreasonable searches
and seizures of his person, his house, his papers, and all his
possessions. All warrants, therefore, are contrary to this right, if the
cause or foundation of them be not previously supported by oath or
affirmation, and if the order in the warrant to a civil officer, to make
search in suspected places, or to arrest one or more suspected persons,
or to seize their property, be not accompanied with a special
designation of the person or objects of search, arrest, or seizure; and no
warrant ought to be issued but in cases, and with the formalities
prescribed by the laws


I added the emphasis.

The FISA orders and searches and seizures by the NSA closely resemble the general warrants that were so hated by the American colonists. (It was reading the Verizon order that shocked me into becoming a crusader on this issue. It is far too general, far too sweeping. I was just speechless.) They do not conform to Adams' and Madisons' and the Founding Fathers' standard. They are not based on probable cause and they do not identify with specificity the persons, places, things, etc. to be searched. And they do purport to authorize searches.

Since the introduction of telephones, the internet and other new technologies (including the automobile) the question is whether and how the Fourth Amendment should apply. These new technologies permit intrusions into our lives and the amassing and analysis of data that would have astounded our Founding Fathers.

The NSA takes the view that it can do what it wants. I and, from what he has done and said, Edward Snowden and many others strongly disagree.

Since at least the Franklin D. Roosevelt era, our government with a nod from the Supreme Court has increasingly violated our rights under the Fourth Amendment. As we use more technology that makes the sidestepping or ignoring of the Fourth Amendment less noticeable to us, we need to defend our rights.

To explain: violations of the Fourth Amendment are obvious when the police come and knock down your door without a warrant. But today, the government can accomplish almost the same degree of invasion of your personal privacy with no noise, imperceptibly by just reading your text messages to your boyfriend for example. That's pretty horrible.

The Supreme Court has, in the past, suggested that the test to apply in deciding whether a search or seizure violates the Constitution is whether we have a reasonable expectation of privacy as to the person, place, thing searched. That is a pretty weak test in my opinion because the government and the Supreme Court have told us that we can't expect much privacy at all. The expectation of privacy is measured not by our subjective expectation of privacy but by the Court's expectation of privacy. And for example Anthony Wiener's expectation of privacy about his person is probably very different from mine. But that is the test. It is ultimately therefore the Supreme Court Justices' expectation of privacy that controls the test I suppose.

Der Spiegel claims that the NSA can use various technologies to view you as you type on the internet -- if you have Skype, they can view you supposedly -- and Snowden stated that the NSA employees can watch us as we edit on the computer. That is an example of a new technological capacity that the Supreme Court has not ruled on.

I would assert that I have, at the very least, a reasonable expectation of privacy to any information that I use a password to get including my personal identifying information on DU. People certainly have an expectation to privacy if that encrypt their messages or use some sort of program that limits the collection of their history. I would also assert that I have a reasonable expectation of privacy as to my location when I am not in a government office, and there is no search warrant for me. I would assert a reasonable expectation to my financial accounts, to the interior of my car, to my phone records, to the content of my phone records, my e-mails and many, many other things. I would assert a reasonable expectation of privacy to anything I have or use on my computer that is not specifically placed by me on a website that is open to the public. I believe that I have a right to expect privacy in my Google searches. If Google asks my permission to collect them, fine. But it is up to me to consent to government access to them.

Those who argue in support of the NSA surveillance rely on that Maryland case decided by the Supreme Court in the late 1970s. Supreme Court decisions make general rules based on specific circumstances. The specific circumstance in that case concerned obtaining pen registers from the phone company in the context of a criminal investigation. The Court did not necessarily approve of the NSA's obtaining the pen registers of millions of innocent people, then sorting and analyzing them so as to determine who calls whom, what our social networks are. The facts are very different.

We need to obtain new Supreme Court rulings by bringing new cases, instances in which innocent people are placed under surveillance. Changing precedents set by the Supreme Court is a war of attrition. The past decisions have to be questioned, distinguished, meaning differentiated based on the facts or the law. It can take a long time to correct a situation. Think of the "separate but equal" battle. But so far, the U.S. government has made bringing new cases that are not related to criminal activity difficult if not impossible by asserting the right to withhold evidence based on national security interests.

Whether the government should withhold such evidence is a political issue. I believe the government's policy in that regard needs to be changed.

We also need to push Congress to pass new laws that prohibit the NSA's abuse of its capacity for surveillance. To that end, we need to change public opinion, to alert people to the dangers of excessive NSA surveillance.

Snowden has played a very helpful role in alerting Americans that he witnessed what he believed was excessive surveillance when he worked as a private contractor for the NSA.

I'm with John Adams and his fellow revolutionaries. I want to see the Fourth Amendment enforced so as to protect our privacy. I want the standard to be the issuance of a warrant that complies with the Fourth Amendment.

I do not think that Americans will put up with the status quo once they understand what is going on, what it means for their loss of privacy. Snowden has done us a favor by starting the conversation. Without seeing the Verizon order, I for one would not have understood just how bad the problem with the NSA surveillance is.

I support Edward Snowden's efforts to start a conversation. In the end, this is an issue that has to be dealt with through international protocols. I don't want the Chinese, the Germans, the Russians or the Portuguese or the British to place my electronic data under surveillance any more than I want the American government to do it.

We all, we earthlings, need to protect our right to privacy. It is a universal right.

A link for those of us without cable or who could not catch the show.


Americans -- Courage is in our DNA.

Our ancestors would laugh at our NSA for justifying its massive surveillance including its collection of our metadata by the dangers we face.

In a great speech on the freedom of the press and his own disinclination to meddle with it (in contrast to Obama who is trying to force Risen to give up his sources on a story that Obama claims comprised our national security) claimed that the time in which he served -- the 1960s -- was the most dangerous in history.


I was born during WWII. Since I can remember, the leaders of America have either asserted or acted as though the time in which they were lived was the MOST DANGEROUS in our nation's history. Their awe at the task of protecting our country is understandable, even admirable and explains their hyperbole. But they are wrong.

My ancestors came to this country when it was very, very young. They faced dangers that we cannot imagine now. When they later entered Kentucky and Indiana and moved on West, at each watering hole, at each campground, at each settlement, in every home they built on the prairie or in the wilderness, they faced dangers to themselves and our country far greater than any we can imagine today.

They had no internet, no telephones, no electricity or gas. They chopped trees for kindling wood so that they could cook and heat. They lived in log cabins or houses constructed without cranes and bulldozers. They tilled virgin soil. They hammered horseshoes over blazing fires. They created America in the face of dangers we cannot and do not bother to imagine.

They were fearless.

But they valued freedom and eventually fought for the independence of our country and for a new government, a constitutional government that would pioneer a new relationship between the ordinary man and his civil life. It wasn't just a change of the chief of state. It was a change in the relationship between the farmer (we were mostly farmers back then) or the working man and the government. No longer would we have a king, a sovereign, a master. We would be our own king, our own sovereign, our own master. (I'm talking about Yankees who moved from the East to the West, not Southern slaveholders.)

Today, our government, purchased and owned not by us so much any more but by the very, very wealthy (some of whom serve in Congress) and corporations, is seeking to govern us as a master. The first attack is on our right to know the truth about the dangers and opportunities that confront and greet us.

The first attack is on the media including the internet.

Had my grandfather many times removed, who first came to this country when there was little civilization here, enjoyed the capacity we now have to live safely and tranquilly, had he been able to sit in the evening and watch canned TV shows, old movies or interact with others on the internet, he would have felt incredibly safe, maybe even claustrophobic. He would have believed he had a life of ease.

I think he would have felt very generous toward people in other countries whom we now perceive as enemies. Instead of wasting his time in fear, I think he would have set out to learn more about them. I think he would have tried to figure them out, outsmart them. And I think he could have done that without quivering in fear just as he learned to catch and hunt enough game to feed his family until his crops were in.

I think that if my grandfather many times removed were living today, he would want our government to be truly honest with him. And I think he would have been very cautious before he bought a cow from a stranger off the street or the propaganda that now passes for news.

To survive you have to be smart, but you don't have to lie. You can keep secrets, but they had better be your own, not the public's.

And now to the point: Our government keeps too many secrets from us. It doesn't trust us. And I ask myself, what has happened to the dream of my ancestors, the dream they had for this country. Where is the country that is governed by the people, not by a king, or a sovereign or a master? Where is it when the very government that is supposed to be under our control is placing us under surveillance?

Where is it when that government tells us that we live in the most dangerous times imaginable?

Our ancestors faced dangers far greater than any dangers we could even imagine, save one. And that one danger that is greater than any danger we have faced so far is the danger that the warming oceans and the rising seas and the melting icebergs pose to our grandchildren and their children. (And we don't hear nearly enough about that real danger.)

The idea that we should allow our government to hide so many secrets that are not specifically combat-related from us because of the dire dangers we face is absurd.

We Americans are the most courageous people on earth. At least we used to be. Every one of us. It's in our DNA.

Very few Americans can boast that they have no ancestors who ventured to this country distancing themselves from the comforts of family and childhood memories to face a mysterious wilderness or at least an unknown future. Even today, although the dangers are less obvious, most immigrants leave behind not just family but very often a career and opportunities in order to allow their children to have a better, freer life.

Ironically, the glory of America, the dream of a better, freer life is now being endangered not by foreign enemies but by our own corporate-owned government snooping on our private lives, negotiating trade agreements that will curtail our rights in secret, keeping all kinds of secrets from us and punishing our press, our media when it tries to inform us (I originally wrote this in response to an OP about James Risen and the Obama administration's attacks on the press).

As I write this, I hope the NSA agent who may now or in the future read my post will realize that what he is doing is downright wrong. We have a right to be a free people. That means free of surveillance. Law enforcement is supposed to punish illegal actions. It should not concern itself at all with our political expression, our political speech or our personal law-abiding lives.

My ancestors did not want a country in which the government placed the people under surveillance. How do I know? It's in my DNA and the DNA of all Americans: the love of freedom and the courage to accept the risks that accompany it.

If terrorists endanger our country, don't let them come in. Placing Americans under surveillance is not necessary to keep them out. Otherwise, place criminals under surveillance after they have committed criminal acts. But don't place law-abiding citizens under surveillance.
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