The "unitary Executive" and Americans' personal privacy

John Dean has a new column out about the NSA spying, in which he addresses the broad political question of Why Should Anyone Worry About Whose Communications Bush and Cheney Are Intercepting, If It Helps To Find Terrorists? Findlaw.com 2/24/06

While noting that the problems arising from Bush breaking the FISA law under his unilateral executive theory of government "is not going to go away", Dean focuses on how the NSA program is problematic apart from the particulars of the statute.

One thing is that the program appears to use the technique known as "data mining", which produces a lot of "false positives", i.e., it tags people as terrorist suspects for whom there no substantial reason for such suspicions.  He writes:

The government may claim data mining is accurate - but Americans ought to be wary: Even greater claims of accuracy are typically made for fingerprint identification, and that has already gone grievously wrong in one notorious war on terror example.

Fingerprints on a bag holding detonators involved in the 2004 Madrid subway terror attacks were supposedly linked to Portland, Oregon attorney Brandon Mayfield. As a result, Mayfield - also suspicious in authority's eyes because he'd converted to his wife's religion, Islam -- found himself in solitary confinement for two weeks as a "material witness." But in the end, the FBI was wrong; the prints weren't his.

Dean expresses even greater concern about the large amount of private information on individuals that the federal government is collecting as it is:

Many people trust the government not to abuse or misuse this information. Based on experience, I don't. But if you do, imagine what a hacker might do after cracking into all that private and government information - the kind of security breach that happens every day. Such hacking could trigger scenarios that range from blackmail to graymail to identity theft, to others knowing more about you and your life than even you may know.

Discussing the development of the present-day legal concept of Constitutional privacy guarantees, he goes back to the Supreme Court's 1948 decision in Johnson v. United States which established the "probable cause" standard for searches under the Fourth Amendment.  The decision was written by Justice Robert Jackson, who, perhaps not coincidentally, was the lead prosecutor for the US at the Nuremberg War Crimes Trial:

Jackson perceptively added, "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." In other words, it's for the courts, not the executive branch, to judge whether a search is legal.

Why did Jackson reach this conclusion? "Any other rule would undermine 'the right of the people to be secure in their persons, houses, papers and effects,'" he explained, "and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law." These distinctions sting in an era where the NSA has refused to operate "under the law" - that is, under FISA and, indeed, under the Fourth Amendment itself.

Jackson's reaction to the police-state (read: the state hallmarked by totalitarianism or fascism) is indicative of the rights that grew from these negative histories. As Richard Primus writes in The American Language of Rights, "Reaction against Sovietism and Nazism helped bring about major shifts in the rights of free expression, racial equality, and individual privacy. A new vocabulary of 'human rights' arose to carry the content of those political commitments and to link them with a broader idea rarely seen in the generation before the war but ascendant thereafter: that certain rights exist and must be respected regardless of positive law." Needless to say, positive law - in the form of statutes, and Supreme Court precedents interpreting the Constitution -- followed.

To those who don't worry about giving up their rights, programs like the NSA's may seem fine. But others of us appreciate the blood and treasury this nation expended, both indirectly and directly, in securing those rights. And I am convinced my generation will fight  to the end to prevent the zeal of good intention in fighting terror, from letting the terrorists win by permitting the government to take those rights.