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Orwellian Decision


by Robert Scheer

Why did we go so crazy after 9/11? The idea that somehow our freedoms could be easily sacrificed, including those that our Constitution declared most fundamental to the survival of our republic, became the norm.

This past February, more than a decade after attacks that would seem relatively minor in the histories of most war-torn nations, the so-called conservative majority of the U.S. Supreme Court—in cahoots with President Barack Obama—put the final nail in the coffin of one of the Constitution’s most sacred protections: the right to the privacy of one’s home and thoughts.

Enshrined in the Fourth Amendment to the Constitution, it was perhaps the most important right of all in the eyes of the founders of this nation. They had risked much as colonists in objecting to the warrantless intrusion into people’s homes conducted by the king of England. That is why they guaranteed “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.”

Surely, the right to be secure in one’s person and papers would extend in the modern era to telephone conversations, as candidate Obama stated when he first ran for President and condemned the warrantless electronic surveillance of the Bush Administration. He specifically denounced Bush’s exploitation of the 9/11 attacks as “an excuse for unchecked Presidential power. A tragedy that united us was turned into a political wedge issue used to divide us.”

Obama specifically denounced Bush’s use of warrantless wiretapping as “a false choice between the liberties we cherish and the security we demand.” He promised that “I will provide our intelligence and law-enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom. That means no more illegal wiretapping of American citizens.”

But Obama didn’t mean it. The unconstitutional wiretapping initiated under Bush that ensnares the communications of millions of Americans has been defended even more energetically by his successor. The Obama Administration filed the critical brief affirming the constitutionality of the eavesdropping by the National Security Agency that Amnesty International and the ACLU had challenged before the Supreme Court.

It was the reasoning of the Obama Justice Department that the court’s right-wing majority embraced in slamming the door shut on protecting the basic privacy rights of Americans. In a 5-4 decision, the court held that the plaintiffs had no judicial standing to bring their challenge to the administration’s policy because they couldn’t prove they had been victimized by its wiretap procedures.

Of course they couldn’t because the wiretapping procedures are so highly secret. But the Constitutional point, as former Constitutional law professor Obama well knows, is that the government has no more right to break into your phone conversations than it does to physically enter your home without a warrant. It is the warrant that serves notice to the victim that he or she may be being victimized.

Instead of honoring the sanctity of the right to privacy, Obama and the Supreme Court— as they’ve done with drone strikes and the rendition- torture program—substitute stealth for transparency to make official criminal behavior invisible. Prophetic writer George Orwell would have appreciated the Obama argument. Rejected by the court’s pro-civil liberties minority, it insisted that since the NSA’s surveillance operation is so highly secret, those who fear that the public is being victimized can’t prove it. By that reasoning, any nefarious action of the government—say assassinations of its critics— could be deemed exempt from judicial challenge as long as the facts of the killing are concealed behind the veil of official secrecy.

The Supreme Court majority ruling spells the end of government accountability and with it the end of the Bill of Rights protection of individual freedom. That is the template of the post-9/11 America into which this country has morphed.


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