By ME Synon, Irish Daily Mail
This is why those of us who can be
described, and not always by our friends, as
anarcho-capitalist-libertarian-Tridentine-Rite-Jeffersonian-republicans
so much
resent being lumped under the title ‘conservatives.’
That is the word used in this part of
the world for British Tories. And the fundamental thing a Jeffersonian
republican knows about Tories is: we used to shoot them.
If you want to understand the difference between the two kinds of
‘conservatives,’ take a look at the debate over Edward Snowden, a
contract employee at the US National Security Agency.
Mr Snowden is the tech expert who
disclosed a vast secret programme of telephone and internet
surveillanceof Americans by the US government. Mr Snowden is thought to
be still in Moscow airport, trying to negotiate asylum somewhere,
anywhere, outside the reach of the Obama administration, who want to
skin and butcher his high-tech carcass.
Of course they do. Mr Snowden has exposed the kind of secret
surveillance on American citizens which the US Constitution forbids. The
man is a hero. The ones who ought to be facing prosecution in all this
are the members of the administration who are running the illegal
surveillance. The one who ought to be facing impeachment is President
Obama for sanctioning the snooping, which is in contravention of the
fourth amendment to the Constitution which he swore to uphold. Details
on that in a moment.
Meanwhile, what do the British Conservatives, and their soul-mates in
Ireland, make of Edward Snowden? Charles Moore, former editor of the
Daily Telegraph, a Tory-supporting paper, wrote a piece for the
Telegraph at the weekend which was run as well by the Irish Sunday
Independent. Mr Moore claims that Mr Snowden has ‘betrayed his own
state.’ He says he was ‘acting in the name of a morality which disdains
allegiance to the rule of national law.’
That is so Tory. It reminds me exactly why Jeffersonian republicans used to shoot them.
Mr Moore and his Conservatives
operate in a British state dominated by an over-mighty executive. The
ability of a Government-whipped Commons to stretch the unwritten British
constitution as they like and call it ‘law’ is exactly what drove the
original Jeffersonian republicans to secede from the British empire.
It is precisely why the framers of
the US Constitution made sure they limited with precision the powers of
the new federal executive and legislature. Having been governed by men
with ideas such as Mr Moore’s, the representatives of the 13 young
states knew exactly what they did not want again.
So
things are different under the US Constitution. The fourth amendment of
the ten first amendments known as the Bill of Rights says: ‘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 probably cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.’
What this means is that there is a requirement for search warrants
when any public authority wants to search individuals or their houses,
or to seize any property in connection with an investigation. No
law-makers have the right to over-ride this constitutional protection:
the US Senate and House of Representatives are not the House of Commons.
It is not Edward Snowden who, in
Charles Moore’s phrase, ‘disdains allegiance to the rule of national
law.’ It is President Obama and his top security officials.
The only circumstances in which a warrant is not necessary is when a
search is incidental to a lawful arrest. To get a warrant, a police
officer must appear before a magistrate and declare under oath that he
has good cause to believe a search should be made. The warrant must
specify the place to be searched and the property to be seized.
This is important: the framers of the
Constitution knew the dangers of the so-called general warrants used in
England up until the mid-18th century. These allowed British government
agents to search without specifics or probable cause, in short, to
coerce and frighten political opponents by doing repeated total sweeps
through their property and correspondence looking for whatever might
turn up.
In other words, exactly what the NSA has been doing to millions of American citizens.
Mr Moore seems to think that the US government agents should act as
though they have the power of general warrants. Yet the American states
decided in 1791 they weren’t allowing it, and put the fourth amendment
into the Constitution to make sure.
This prohibition is not something
caught back in the time of the American revolution. Even in modern
times, the protections of the fourth amendment have been extended to
require warrants for the search and seizure of intangible property, such
as conversations taken from recorded telephone calls. Warrants can be
given in secret; but there must be warrants.
Yet now we find out, thanks to the courage of Mr Snowden, that the
Obama administration has been ignoring this constitutional protection
against what lawyers know as ‘unreasonable search and seizure.’
Top members of the administration have
been under no illusion that what they were doing was legal. If they
thought it was legal, they wouldn’t have been lying to Congress about
it. Last March, James Clapper, the director of National Intelligence,
testified to a Senate committee that the National Security Agency does
not collect any type of data at all on millions or hundreds of millions
of Americans.
I suspect Mr Snowden was watching that televised testimony. He knew
different. Not long after, he packed his laptops – four of them,
apparently—and fled to Hong Kong.
He set up a clandestine meeting with a
Guardian journalist who broke the story about the NSA programme of
spying without warrants on law-abiding American citizens. NSA was spying
on others abroad, too, but because of the fourth amendment the crime in
all this is the unreasonable search and seizure by government agents of
information legally held by Americans.
What Tories can’t understand is that even if such surveillance could
be argued to be a good thing, no government agent – from a contract
worker at the NSA to the president himself -- has the right to pursue
surveillance outside the law. The Constitution would have to be changed
first. And if neither the representatives gathered in the US Congress,
nor the people of the states themselves, want to change the
Constitution, then the spying on citizens has to end. Otherwise the
government itself becomes the enemy.
Enough of that. To end on something else: next Saturday is the 220th anniversary of
the day Charlotte Corday went alone to the house of Jean-Paul Marat,
one of the leaders of the French Revolutionary Terror, and plunged a
six-inch blade into his heart. She then sat quietly and waited for the
police, or the mob, to take her.
Standing before the Revolutionary
Tribunal four days later, she explained: ‘I have killed one man to save
100,000.’ The tribunal sent her to the guillotine, as she knew they
would.
This week I salute her courage.
http://tinyurl.com/kytd449
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