Tuesday, September 25, 2012

Digging Gold, A Timely Time Capsule

While browsing a yard sale across street, I found a letter from late Senator Mathias to a friend dated September 20, 1976. Attached with the letter are reprints of two talks he made in the summer of 1976 on the right to privacy.

Thirty-six years later, the points he made are still vivid and refreshing amid the broad adoption of Internet technologies today.

Senator Mathias was a Frederick native, who was born, raised in Frederick and practiced law in Frederick. Among the many honors he had received, he was granted an honorable doctoral degree from Hood College in 1974.

Senator Charles McC. Mathias, Jr. Addresses the American Bar Association

The Fourth Amendment in the Electronic Age

August 11, 1976

In 1817 former President John Adams wrote to a friend who had asked him to recall the genesis of the American Revolution. Age had not dimmed Adam's passion, or his memory of the events that had liberated his country from England. He went straight to the first of the great dramas in our long advance toward libertarianism. Richard Harris, in his New Yorker essay on the fourth amendment, has given us a detailed account of that drama, and those events. Today I'd like to touch the highlights.

"The scene", Adams wrote, "is in the council chamber in the month of February, 1761 . . . in this chamber, round a great fire, were seated five judges, with lieutenant-governor Hutchinson at their head, as chief justice, all arrayed in their new, fresh, rich robes of scarlet English broadcloth; in their large cambric bands, and immense judicial wigs".

John Adams was a young lawyer of 25. He and every other member of the bar of Middlesex County and Boston sat in the chamber that day, also arrayed in the gowns and wigs of English tradition. Adams took noted, and 57 years later resurrected the scene, which echoes today as powerfully as ever vital in our law and heritage.

At issue were the general warrants called writs of assistance, a legacy of the repressive court of star chamber. The writs authorized officers of the crown to search homes and property for smuggled goods, and to compel any British subject to assist in the search. They did not specify whose property, or what evidence was to be looked for.

The merchants of Boston demanded a hearing. They asked James Otis, Jr. of the Bay Colony to represent them, and offered him a generous fee. Otis accepted the job and declined the fee. "In such a cause", he said, "I despise all fees".

The Revolution had found one of its first heroes, a man usually overlooked in the liturgies of the Bicentennial. Otis resigned as advocate general of the admiralty court, a position with promise of wealth and advancement, and went to work for the Colonists against the writs of assistance.

John Adams never forgot Otis' 5-hour performance that day. According to Adams, Otis wove a spellbinding mix of classical allusion, history, legal precedent, constitutional law, and prophecy. When he was done, opposition to the writs was unalterably set in the minds of the Colonists, and one of the fundamental principles of English common law had been indelibly written in our history.

"I will to my dying day", Otis began, "oppose with all the powers God has given me all such instruments of slavery on the one hand and villainy on the other, as this writ of assistance. It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law that ever was found in an English lawbook. . . ."

A warrant, he said, must designate the place to be searched, the evidence to be looked for and the person in question. It can be issued only upon a sworn complaint. A general warrant, in Otis' view, was in dead conflict with the British constitution.

"On of the most essential branches of English liberty", he said, "is the freedom of one's house. A man's house is his castle, and whilst he is as well guarded a prince in his castle".

It was America's first defense of the right to privacy; a first glimmer of the notion that a citizen has the right to be let alone.

After Otis' peroration, the colonists followed events in England, where in 1763 a pamphleteer named John Wilkes was arrested and his home ransacked on the authority of a general warrant. Wilkes sued the officer for trespassing, claiming that a general warrant was illegal under the unwritten constitution. The jury found in his favor.

At the same time another incendiary writer, John Entick, was arrested on a warrant that did bear his name but ordered the seizure of all his books and papers, without specifying any particular ones. Entick sued and won. The Government appealed, and the Court of Common Pleas found unanimously in Entick's favor. "Papers", wrote Lord Camden, are the owner's goods and chattels: they are his dearest property, and are so far from enduring a seizure that they will hardly bear an inspection". Soon afterwards, the House of Commons declared general warrants illegal.

William Pitt the elder, the Great Prime Minister who was dismissed by George III for his sympathy toward American grievances, put it most eloquently of all: "the poorest man may in his cottage bid defiance to all the force of the crown. It may be frail: its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, -but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!"

In 1791, the Founding Fathers compressed theses events and utterances, and the tradition that shaped them, into the succinct injunction of the fourth amendment: "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 person or things to be seized".

To procure this right was one of the overriding aims of the American Revolution. It is a right no despotism can accommodate. It is a right no free society can be without.

It is fair, I think, to suppose that Madison and his colleagues were satisfied that they had guaranteed the people from intrusion, search and seizure beyond all doubt. They Bill of Rights was written to clarify. It drew lines around the individual freedoms, intended to be unalterable and plainly visible.

But the Founding Fathers could not foresee the electronic age. They could not foresee telephones, wiretaps, bugging devices, computers and data bands. Technology has cluttered the domain off the constitution. It has confused things. It has made our homes and our private lives accessible, even when our doors are looked and our shades are drawn. It has created a new kind of intrusion: invisible, unannounced often untraceable.

Unauthorized intrusions have almost always been a temptation to police in search of evidence, and to governments troubled by national security. With the electronic age, the temptations have proliferated. The meaning of privacy has become blurred in many minds, and in the confusion, electronic prying has outrun the restraints of the fourth amendment.

In 1928, the Supreme Court dealt for the first time with wiretapping in Olmstead versus United States. The plaintiffs were bootleggers who had been convicted on the evidence of recorded telephone conversations. They claimed that the use of such evidence violated the fourth and fifth amendments. The supreme Court upheld the convictions. Chief Justice William Howard Taft wrote the opinion. Wiretapping, he ruled, was not a search and seizure and not an illegal entry, because the tap had been placed outside. Only the spoken word had been seized, and the spoken word was not protected by the fourth amendment.

In spite of Taft, the Olmstead case produced an historic definition of privacy: the famous dissent by Mr. Justice Brandeis. "The makers of our constitution", he wrote, "sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the individual, whatever the means employed must be deemed a violation of the fourth amendment.

Nonetheless, Taft's unimaginative pronouncement stood for 39 years, until the court decided in Katz versus New York that warrantless wiretapping had to be construed a violation of the fourth amendment. "The fourth amendment", the court ruled, "protects people, not places". One did not have to be at home to be intruded upon.

The Katz decision vindicated Brandeis' 1928 dissent. And I believe the fourth amendment bears no other interpretation. What did the Founding Fathers intend to confer, if not the right to be let alone--the right to speak in private, the right to think in private?

Jefferson once warned that "the natural process of things is for Liberty to yield and Government to gain ground." In our 200 years history, we have resisted that tendency. Armed with the Constitution, we have fought infringements of our liberties, and on balance have squeezed out enough victories to bring civil liberties alive and well to the present day. The courts have stood by our right to privacy in some areas, such as the right to read as one chooses in the privacy of one's home. But the courts have not guarded us as well against intrusion and surveillance--nor has the Congress or the legal profession. And where we have turned our backs. Government has exceeded its rightful powers, almost without fall. Liberty has yielded, and Government has gained ground.

This past year, when it began to emerge that executive power had been used over nearly four decades in routine, secret disregard of the fourth amendment, the Senate finally interceded with the creation of the Select committee on Intelligence. I was a member of that committee. The revelations that came in more than a year of testimony astounded even the most seasoned members of the committee.

The FBI, as we learned, made hundreds of warrantless, surreptitious break-ins. Bugging devices were installed in offices and bedrooms. Private papers were photographed.

Phones were tapped.

FBI and CIA computers were fed a prodigious diet of names and organizations. Nearly a quarter of million first-class letters were photographed to compile a CIA computerized index of one and a half million names. Some 300,000 persons were index in a CIA computer system; files were collected on about 7,200 Americans and more than a hundred domestic groups in the CIA's operation chaos. Army intelligence kept files on an estimated 100,000 persons. The Internal Revenue Service kept files on more than 11,000 persons and started investigations for reasons of politics, not taxes. More than 26,000 persons were catalogued by the FBI. Whose intention was to imprison them all summarily in the event of a national emergency.

The revelations went on and on, with scarcely a dull moment. We learned that quarrels among black groups had been aggravated with forged letters, inciting violence, marriages were disrupted, again with forged letters.

As James Otis put it "What a scene does this open." But in 1761, the violations were flagrant, and dressed in the formality of the writs of assistance. Today's intrusions on privacy dispense with all formality. They are soundless, and unseen. No doors are broken down, no papers carried away. Instead of seizure, there is photography and a computerized file. Instead of an ear to the door, there is bugging device inside the room.

These intrusions were seldom detected and so seldom challenged. Unchallenged, they multiplied. The fourth amendment was being flouted by those whom it was meant to bind and by those who were meant to enforce it; the American people stood by indifferent or unaware.

The blame belongs many places.

For 25 years, Congress has routinely appropriated funds for intelligence, knowing little about how the money would be used and not troubling to find out. From time to time, we attempted to set mild restrictions that were ignored, and then failed to insist on compliance.

The courts have hesitated to meet the intelligence community head-on. They Supreme Court conceded in 1972 that warrantless electronic surveillance had been permitted by Presidents without "guidance by the congress or a definitive decision of the courts."

And the legal establishment, the American Bar Association and the State and city bar associations, might have guessed how deep the disease ran, and met every lawyer's obligation to protest. The secrecy spun by Presidents and Government agents was thick but not impenetrable. Now and then a voice was raised, in fear or indignation. These complaints might have been looked into. What the press finally did, we might have done ourselves.

The recommendations of the Select Committee were designed to establish supervision, to check and balance the intelligence agencies as required by the Constitution. We advised, simply, that intelligence-gathering be brought within the bounds of law.

We proposed that there be no electronic surveillance without judicial warrant.

We proposed that no homes be entered, no mail be opened, without a warrant.

The Permanent Oversight Committee, which the Select Committee created when it finished its businesses, will have sentinel duty. It will alert the Congress and the country, let us hope, the moment the law is violated. For the moment, order and the rule of law have been restored.

But something in America has been dimmed in these decades of official lawbreaking. James Otis understood what it was when he spoke of "the liberty of every man."

It is more than an abstraction. It is more than a syllogism stating that if the liberty of one is taken away, then the liberty of any other can be taken just as easily. The fact is, it can be taken from some much more easily than from others. But wherever one man's liberty is violated, the liberty of every man, the transcendent aim of our law, is diminished.

The Socialist Workers Party, an ardent, possibly naive, undoubtedly peaceful group of Americans, as the FBI has admitted, was spied on and its offices broken into for years. Forged letters were sent to spouses and employers in attempts to wreck marriages and ruin jobs. In those abuses, the liberty of every man was diminished.

The late Martin Luther King, Jr., an apostle of non-violence and integration, was hounded by FBI spies and technicians whose instructions were to "destroy"him. In that crude campaign, the liberty of every man was diminished.

When the FBI concocted letters designed to instigate murder between the Black Panthers and a Chicago street gang, the liberty of every man was diminished as surely as if those agents tampered in your lives, or mine.

And as long as the Government intrudes illegally in the private life of so much as a single ragtag student demonstrator, the liberty of every man will be diminished.

No conscientious lawyer can be indifferent to be scars of these past years, or to the neglect that made them possible.

Today, a new test of the fourth amendment appears to be pending, brought along in the stealthy evolution of the computer.

The computer has become indispensable in commerce, industry, and government. Increasingly, information is shared from computer to computer, covering vast distances in seconds Law enforcement has become automated; the law enforcement assistance administration, created in 1968, recommended the development of computerized information system, and the FBI, a year earlier, unveiled its national crime information center, a monster computer in Washington, accessible on the instant to law enforcement agencies all over America.

Business and commerce now hum to computer rhythms. The bank, credit, medical, and business records of almost every one of us are stored away in some electronic memory. Computers do not discard information, unless ordered to. They do not forget it. They amass it, they produce it indiscriminately at the ouch of a button.

The capacity of men in power to wreck civil liberties and subvert laws was amply demonstrated in the Watergate affair, and by the intelligence community in every administration from Roosevelt to Nixon. Computers have only begun to demonstrate their potential. Men and computers, in collaboration, edge closer and closer to the innermost precincts of our private lives.

Two years ago I introduced the bill of Rights Procedures Act, which was designed to reinforce the fourth amendment. They bill would require court approval, upon a show of probable cause, before the Government could wiretap, bug, open mail, or dig into telephone, credit, medical, or business records. Court approval would have to be put in writing. Any Federal agent who proceeded to these measures without a court order would be subject to criminal prosecution.

Congress was created for the most part to make law, not enforce it. But where the constitution is made to seem ambiguous by modern technology, or where it is assailed by Federal agents and overreaching presidents, or where the courts are dilatory, then Congress does have the power to intercede. The Bill of Rights Procedures Act would reiterate the fourth amendment and insist by statute that it be enforced.

Over the years, the United States Supreme Court has been a primary guardian of our civil liberties. The court has traditionally exercised vigilance in its decisions defining the scope of the privacy protections afforded under the fourth amendment's prohibitions against unreasonable searches and seizures.

In recent months, however, the Supreme Court has signalled a retreat from its position as the protector against governmental intrusion. In a series of recent decisions--ranging from its ruling in United States against Miller that a citizen's banking records are not his private papers so as to come under the protections of the fourth amendment, to its holding in South Dakota against Opperman, approving sweeping inventory searches of automobiles in police custody, the court has taken a much narrower view of the fourth amendment. In dissent, Justices Marshall and Brennan have leveled unusually harsh criticisms of these recent decisions,. As Justice Brennan, joined by Justice Marshall, wrote in dissent in United States against Martinez-Fuerte, that case was "the ninth this term marking the continuing evisceration of fourth amendment protections against unreasonable searches and seizures."

I join in the eloquent dissents of Justices Brennan and Marshall and hope that this trend will be reversed in the coming term of the Court.

Against this background, I believe it is essential that the Congress and State legislatures--who apparently have been lulled into passivity by the dominant role played by the Supreme Court--reevaluate their usual practice of stepping aside to allow the courts to determine the breadth of the privacy safeguards in the Constitution. Even when Congress has had the opportunity to delineate the scope of these protections, it has either failed to do so or specifically left such determinations to the courts. Typical of its abdication to the judiciary are the following:

In the 1968 Omnibus Crime Control and Safe Streets Act, Congress expressly disclaimed reaching a decision regarding the constitutional limitations on the President's power to order wiretaps without judicial warrants;

In the Bank Secrecy Act, Congress authorized surveillance into the bank records of millions of Americans without making clear whether these administrative powers were subject to the prohibitions in the fourth amendment;

In the border search statute, Congress permitted searches of individuals within 100 miles of the border without declaring whether the fourth amendment was applicable to governmental actions of this nature.

The time is at hand when the congress and its State counterparts must enact legislation to protect the privacy which is essential to our democratic society.

In the advance of computer technology, the words of James Otis bristle once more. The writ of assistance, he said, "Is a power that places the liberty of every man in the hands of every petty officer." To prevent this, our fourth amendment was written. It was written to guarantee the privacy of the home and personal papers, and the right to be let alone. It was written to place the liberty of every man our of the reach of every pretty officer, every Federal agent, every Attorney General, and every President, and to lock it securely within the rule of law.

Senator Mathias Addresses The Utah Bar Association

Speech by Senator Charles McC. Mathias, Jr.

July 17, 1976

"If men were angels," wrote Madison in the Federalist Papers, 'no government would be necessary."

In the Kentucky Resolutions of 1798, Jefferson echoed this unsentimental view of mankind. "It would be a dangerous delusion," he wrote, "were a confidence in the men of our choice to silence our fears for the safety of our rights . . . in questions of power then let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution."

The Founding Fathers were skeptical of human nature. They were inspired by the humanists, but they were never beguiled by illusions of a benign, ever reliable inner an. They knew that when the first bloom of the revolution wore off, men in power would have to be restrained. It was their premise that where power exists, sooner or later it will be used.

Our 200-year history has confirmed the skepticism, and the wisdom, of the Founding Fathers. The chains of the constitution have been constantly tested, as men and governments have stretched, and at times assaulted, the limits set upon them. So far, our system has endured the stress and collision. No other government in the world has survived in its original form as long as ours.

But this is not an invitation to complacency. We can be grateful, in this bicentennial year, that the Founding Fathers provided so well for us, but it would be foolish to relax completely. The tension of men and governments goes on, as Madison and his colleagues foresaw, in a constant process of ebb and flow.

This past year I served on the Senate Select Committee on Intelligence, and in that capacity got a vivid glimpse of man's propensity to use power as it accrues to him.

The intelligence fraternity has used power in a mind-boggling variety of ways, to almost any purpose imaginable, from the routine collection of information to cloak-and-dagger antics reminiscent of a grade-B spy movie. Power has been used for good reason, and it has been used for no logical reason at all, as though simply because it was there. Millions of dollars and hundreds of hours were lavished on projects of the most bizarre and aimless nature. In some cases, not even the perpetrators themselves could say what they hoped to accomplish.

For 25 years, the NAACP was investigated by the FBI to determine whether that organization "had connections" with the Communist Party, After the first year, an FBI report conceded that the NAACP had no association whatsoever with Communism, but the investigation went on anyway.

For more than 30 years, the FBI investigated the Socialist Workers Party, embarrassing its members and breaking into their offices in the nighttime, acknowledging all the while that the Socialist Workers Party had never broken any law and had never incited anyone to break the law.

One of the most dismal and misguided of the enterprises we investigated was the prolonged assault on the rights and privacy of the late Dr. Martin Luther King, Jr. In 1968, FBI headquarters notified its agents in the field that Dr. King must be destroyed, because he might "abandon his supposed obedience to white liberal doctrines (non-violence)." The order reads like a passage from Catch-22. By the perverse logic of the FBI high command, Dr. King was a prime suspect to foment violence, no matter how long and how earnestly he preached and practiced the opposite.

Once a project was entered into, it often grew naturally, feeding not on exigencies but upon itself. "The risk," said one witness, "was . . . to move from the kid with the bomb to the kid with a picket sign, and from the kid with the picket sign to the kid with the bumper sticker of the opposing candidate. And you just keep going down the line."

The process is in a familiar pattern. Power granted freely, without stipulation, rushes to opportunity like air into a vacuum.

Thomas Jefferson was in Paris as Minister to France during the constitutional Convention in 1789. When he received the news that George Mason of Virginia had failed to persuade the delegates to adopt a Bill of Rights he fired off a volley of letters to the founders of the New Republic. Civil liberties, he insisted, must e enumerated, leaving no doubt as to where the power of government ended, and where the rights of the people could not be infringed. Civil liberties could not be left to the goodness of men in power. Within four years, thanks to Mason, Luther Martin of Maryland, and above all to the entreaties of Jefferson, the first ten amendments had been written.

Encroachments on the Bill of Rights began almost before the ink was dry.

In 1798, the Alien and Sedition Acts were passed, in circumstances that have a familiar resonance. The Nation feared war with France. There were considerable numbers of Frenchmen in the country. The several alien acts authorized deportation of aliens and imprisonment of persons whose motherland was at war with America. The Sedition Act made it a high misdemeanor "unlawfully to combine and conspire" to oppose legal measures of the Government, and to engage or abet "insurrection, riot, or unlawful assembly or combination." Ten persons, all Republicans, were fined and imprisoned under the act by the Federalist administration of John Adams. Republican editors who criticized President Adams were liberally prosecuted, while Federalists who denounced Vice-President Jefferson were left alone.

Jefferson and Madison responded passionately in the Kentucky and Virginia resolutions. If the acts should stand, Jefferson warned, "these conclusions would flow from them: that the general Government may place any act they think proper on the list of crimes and punish it themselves, whether enumerated or not enumerated by the Constitution."

There is simplicity in this, and clarity. The Government may not condemn, harass, punish or confine, except where the law and the Bill of Rights allow. The constitution was not written to be ignored, according to whim or convenience. It was not written to be suspended in hard times or crises. It is the law, and final.

Even Lincoln was spurred to abridge one of the bedrock principles of the Bill of Rights. When the Civil War broke out, Lincoln suspended the writ of habeas corpus. On suspicion of disloyalty or agitation, thousands of citizens were imprisoned without trial. Congress ratified the order after the fact, and in 1863 a compliant Supreme Court sustained it.

American civil liberties have always been battered in wartime.

In 1918, Congress enacted the Sedition Act, a blunt-edged weapon against dissent. The act authorized severe punishment for anyone during wartime who should "utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language" about the flag, the Armed Forces or their uniforms, the Constitution, or the form of the Government of the United States. If the congress has ever struck more fiercely at the First Amendment, I should like to know when.

During World War II, this country fell into one of the most painful and disgraceful of our lapses, the internment of Japanese-Americans. The lieutenant general in charge of west coast operations gave this quaint explanation of the policy he recommended so devotedly: "The fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken." On this frail and witless supposition, 112,000 Japanese-Americans lost every shred of protection under the law. President Roosevelt succumbed to the paranoia. Every Japanese-American on the west coast was herded into centers in the western deserts and the swampland of Arkansas.

When wartime conditions do not exist, the Government is often tempted to invent them.

In 1919, Attorney General A. Mitchell Palmer bequeathed his name to history as director of the Palmer raids, wherein thousands of political dissenters and anarchists were arrested summarily Aliens were deported. On January 2, 1919, Government agents swooped into 33 cities and arrested 2,700 persons.

Nearly all of the sad and comic antics of Watergate were ascribed to national security. The men around the President seem to have believed that they were committing small sins to prevent greater ones.

The same delusion has flourished in the intelligence community. As Government agents, prodded by their superiors and encouraged by every administration from Roosevelt to Nixon, proceeded to the most aberrational violations of the bill of rights, they carried the heartfelt conviction that they were promoting the greater safety of this Nation. "It was my assumption," one witness told us, "that what we were doing was justified by what we had to do . . . the greater good, the national security."

The rationale is old, and it comes easy. Consider how many tyrannies have been erected, and how many liberties snuffed out, in the name of that nebulous and changeable aim, "the grater good."

The founding fathers knew better than to take the risk. They believed that power grows to the extent it is permitted, and they constructed the constitution around the assumption. Its verity has been borne out again and again, most recently by the zealous excesses of the intelligence community. These excess were covert, hidden even from their victims. They were almost never discovered, and therefore seldom challenged, unchallenged, they grew and grew and grew.

I believe we have checked them. Our rescue has come in a resounding invocation of the doctrines of Madison and Jefferson. Those doctrines remain our greatest surety against the ill-will or carelessness of men in power, and the misconduct of their subordinates. As we celebrate our 200th birthday, we ought to remind ourselves of this, and resolve as Jefferson advised, to "let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

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