Data Mining - Just So We're Clear By: Mark W Adams

The phrase you're looking for is "probable cause."

The source of the conflict is the Bill of Rights.

That's what keeps gnawing at the back of your brain when reading the Sunday Times piece on Data Mining and hearing the Resident's plea to update the Foreign Intelligence Surveillance Act (FISA).

The idea is simple. Simple so long as you understand the basic principles of what it means to live in a supposedly "free society." For the same reasons that you cannot arrest someone just because they "look guilty," the government cannot order someone's privacy be violated -- searched, wiretapped, etc. -- unless there is a reason to believe the suspect is connected to criminal activity.

You cannot "search" (enter into an area or monitor someone's communications where they have some expectation of privacy) to "discover" probable cause -- it must exist prior to the search.

"So what!" say the Neo-anderthals who surely consider such notions even more quaint than the Geneva Conventions, or habeas corpus. "National Security is at stake! They want to KILL us!!!"

Leaving aside that we survived Nazi Germany and the Soviets without rejecting this cornerstone of Anglo-American jurisprudence, the scheme cannot and will not make us more safe. Not from terrorists, not from drug dealers, rapists, thugs or most certainly, not from the government. But Oh MY! Some nutjob with internet access and a disposable phone really, really hates us. THEY HATE OUR FREEDOMS, so we better eliminate the threat -- by eliminating our freedom.

Feh!

Follow me on this. What happens when someone is prosecuted and in the course of the trial the court learns that the evidence collected was tainted, obtained illegally -- without probable cause? They must throw the evidence out. If that tainted evidence, or other evidence collected as a result of learning the of existence of the original improperly obtained evidence (fruit of the poisoned tree) is the only thing the government has on the suspect -- the suspect goes free. He walks, with the added knowledge that he is being watched, and how he's being watched. Such means become more than useless, worse than counterproductive -- they are dangerous because they create smarter bad guys.

Such doctrines that insist on probable cause were put in place for a reason. It's how we define being free -- free from unreasonable government intrusion into our daily lives. They should not be allowed to harass you because you are somehow different, the wrong color, sexual or political persuasion, the wrong religion or look like you belong to the wrong ethnic heritage.

Nobody is "wrong" in this nation. People do wrong things, true. But here, we correct/punish/prevent wrong behaviors, not eliminate people's freedoms due to their status.

We don't do that here, not in America. At least we're not supposed to. And the only way to insure that our liberties are protected from the government who derives its authority from us, is to prevent it from using evidence it never should have acquired in the first place against us.

State police power is an awesome thing, subject to a whole host of abuses and unjust applications if not checked by reasonable limits. The government has the power to end your life, take away your freedom and throw away the key, and confiscate all you own. It is hardly too much to insist that it only does so within reason -- and that means having a legitimate, reasonable suspicion that you are involved in a criminal enterprise before they start listening to your every conversation and put a tail on you and everyone you associate with, especially those that attend the same mosque.

And that's the hat trick all in one fell swoop, ignoring our first liberties as Americans embodied in the First Amendment. Speech, assembly and religious freedoms assaulted by one program gathering all the information it can find on all of us, looking for smoke where there is no fire, and trampling on our 4th, 5th and even 6th Amendment rights for good measure.

Indeed, when you take a look at the Bill of Rights, it becomes clear that the neo-cons only honor the Second and Third, (and only to a point). The rest of it are quaint 18th century notions they refuse to accept even though they reflect the balance of power between the government and the governed that had evolved since the 13th century. This tried and true system just hasn't been sufficient to these fools who prefer a society, culture and economic system more akin to feudal times than a 21st century civilization.

Much of our Bill of Rights was taken directly from a document one hundred years older, the British Bill of Rights, which also influenced the drafting of the United Nations Universal Declaration of Human Rights and the European Convention on Human Rights. And, much like our Bill of Rights came about as a reaction to a despot's abuse, so did the British Bill of Rights.

This accumulated judicial wisdom must triumph, and I'm confident it will -- because I truly believe in the genius of our system. The Seventh Amendment incorporated that historical wisdom by referring directly to the "Common Law." The Common Law is awash with means for protecting us from would-be tyrants, some scoundrel with power who used fear and prejudice as a weapon against his enemies.

That is the quaint tale, abuse of power by the sovereign and the public, through their elected representatives, stomping out such transgressions against our liberties. It's the reason the Eight Amendment talks of prohibiting excessive bail and the Sixth Amendment speaks of speedy trials -- to thwart the government from making it easy to dispose of inconvenient people and political enemies who otherwise are law abiding.

I've a strong suspicion that the current throwbacks to Jacobinism (in both senses) which spawned the British version of liberty guarantees will create a backlash of similar proportions -- which is not a bad thing. That may be the lasting legacy of George W. Bush, that his policy of unfettered executive power is rejected so strongly that we never permit such disasters as epitomized by his reign be tolerated again, and that our institutions are transformed to prevent its recurrence.

One can only hope. But keep in mind that this struggle has been a backdrop of democracy for centuries -- and in the end, democracy has proven superior to despotism every time.

These are the bedrock principles of our civilization, unlike the relatively new notion called executive privilege (a limited doctrine first recognized in 1974 and not -- as Tony Snow would have us believe -- since George Washington).