Reasonable And Unreasonable Warrants

The Privacy and Civil Liberties Oversight Board ( released a 200+ page report today “on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court.”  Before I venture an opinion on what the report says or doesn’t say, I need to take some time to actually read it, so as to understand the chain of reasons, that is the warrants, the Board used.

I can say, though, that Congressman Mike Rogers, head of the House Intelligence Committee, whom I disparaged in a blog post yesterday, criticized the majority report (the 2 Republican members issued separate analyses) for overstepping themselves by weighing in with “unwarranted legal analysis.”  A curious charge, given the Board’s explicit statutory mandate to consider relevant laws, not to mention that one of the PCLOB’s five members is Patricia Wald, a retired federal appeals court judge.  Mike Rogers may have law enforcement experience, but if he knows the difference between a particular warrant and a general warrant, or the reasons the American colonists hated writs of assistance, I would be so shocked I would take off my hat and bow to him, even on a zero-degree day in January.  What Rogers and Feinstein (and Obama, though with more panache, of course) seem to be presuming is that we cannot afford no stinking Fourth Amendment anymore, because requiring any reasons or preconditions for surveillance is such an inconvenient bore.

I would just note for the moment that the PCLOB issued the report this week on their schedule, and President Obama last Friday gave what the White House billed as a “pretty definitive statement” on the NSA programs on his own timetable.  The Board should thus not be criticized for stepping on President Obama’s message.  And Edward Snowden is free, for now, to do video links with EU commissions or online live chats with the freesnowden website (as he did today).  He is pretty clearly speaking for himself, not for Putin or the Russian spy services, as some reckless and frankly goofy pro-NSA propagandists have claimed.  He is certainly a fascinating interpreter and witness, though not now (or ever) an interpreter with any special privilege or prerogative.  I am inclined to agree with Virginia Eubanks’ point in her recent piece in The American Prospect, “Want to Predict the Future of Surveillance? Ask Poor Communities,” where she asserts that Snowden’s Christmas message “trotted out the hoary old cliches about George Orwell, Big Brother, and the end of privacy.  But for most people, privacy is a pipedream.”  For Eubanks, there are four “lessons” about surveillance we can learn from the experiences of marginalized groups as governments’ “test subjects”: surveillance is a civil rights issue; to a hammer everything looks like a nail; everyone resists surveillance, not just the bad guys; and privacy is not the problem (in brief, more important is connecting the world of digital communications with the worlds of active citizenship, democratic governance, free expression, and civic participation).



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