Mises Wire

Are Federal Spying Powers Modern Day Writs of Assistance?

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.
—The 4th Amendment to the US Constitution

Continuing Resolution Bill H.R. 1370 was signed into law by President Trump Friday December 22nd allowing the President to symbolically sign the Tax Cuts and Jobs Act in time for Christmas. Attached to the bill, in addition to the usual wasteful spending, is the extension of the controversial FISA Section 702 Amendment that allows the government to spy on Americans without a probable cause warrant. Fortunately thanks to a handful of bipartisan Senators the reauthorization only lasts until January 19th 2018. Senator Rand Paul (R-KY) threatened to filibuster any bill that included a long-term extension of the FISA amendment.

Undoubtedly we will see the FISA Amendment debated in Congress after the New Year, and it will be important battle in an effort to restore Americans’ protections from warrantless searches and seizures guaranteed by the 4th Amendment. Overreaching intelligence community zealots and their allies in the legislature have been using national security as justification for a less than constitutional standard for collecting and using Americans private data.

Specifically, Section 702 currently allows the FBI and other federal agencies to use bulk data collected during the surveillance of foreign targets to be used in the prosecution of domestic cases. It acts as a backdoor to allow carte blanche spying on U.S. citizens bypassing the requirement for specific warrants issued upon probable cause. Senator Paul has been fighting for better protections for Americans from these unconstitutional actions and introduced the bipartisan USA Rights Act with Senator Ron Wyden (D-OR) earlier this year aimed at doing just that. The bill didn’t make it out of the powerful Senate Intelligence Committee.

The blanket warrants being used are essentially no different than the Writs of Assistance the British Crown imposed on colonial merchants leading up to the Revolutionary War. These Writs were general warrants that allowed officials to search and seize private property based upon any suspected premise. James Otis, a prominent mid-18th century lawyer, appointed to the prestigious post of Advocate General of the Admiralty Court, resigned his post to represent the colonial merchants challenging the legality of these Writs. Otis acted as counsel for the merchants’ pro bono saying that “in such a cause he despised all fees.”

During the 1761 Writs of Assistance case Otis argued against the constitutionality of the arbitrary searches and seizures claiming that they have no place in English Common Law jurisprudence. Otis laid out his vision in a nearly 5 hour oration in front of the Superior Court and the young impressionable Massachusetts lawyer, John Adams.

Adams took notes of the argument and, a short time later, wrote and extended “abstract” of the case. Inspired by Otis, Adams throughout his life repeatedly referenced the importance of Otis’s arguments. Almost 20 years after the Writs case, Adams drafted Article 14 of the Massachusetts Declaration of Rights, which embodied many of Otis’s arguments, but also contained several of Adams’s own innovations. If we look at Adam’s summaries of-and comments on-Otis’s arguments in the Writs case as evidence of Adam’s knowledge and intent, the primary concern is not whether summaries are historically accurate. Rather, an examination of Article 14 demonstrates that Adams embraced the arguments he attributed to Otis. Hence, Otis’s arguments shed light on Adam’s beliefs as to core search and seizure questions.1

But, even though Otis lost, the case attracted attention and thereafter judges and lawyers worked together to frustrate customs officers trying to obtain the writ. Contrary to popular belief the colonists were never oppressed with the use of the Writ of Assistance. It was on the books and it irritated the Americans, but thanks to the guts and ingenuity of a courageous bar and bench, most writs gathered dust waiting to be signed in the chambers of colonial judges.2  Article 14 of the Massachusetts Constitution was greatly influenced by Otis’s speech and writings with Adams himself saying “never one whose service for any 10 years of his life were so important and essential to the cause of his country as those of Mr. Otis from 1760 to 1770.” No one can deny the importance of the Writs case and its influence on search and seizure jurisprudence in the newly formed republic, which is to say the spirit of preventing general warrants was deeply imbedded in the nation’s founding documents. So, 256 years after the original case was argued by Otis, and 226 years after the 4th Amendment ratified into the U.S. Constitution we’re back where we started from, fighting against general warrants.

So how many 4th Amendment advocates are there in Congress today? The most outspoken member of Congress on this issue is currently Senator Rand Paul. When asked about the USA Rights Act he skillfully predicted what we now know to be true when he told journalists “It’s disappointing that we may not get a debate or vote. Typically we wait until deadline and then stick it on spending bills.”

In the October interview Paul explained that very few GOP Senators supported additional restrictions on the FISA amendment but maybe 60 to 100 members of the House Freedom Caucus were receptive. He went on to add that he had been “discussing privacy issues” with President Trump.3

James Otis stated, “I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other, as this Writ of Assistance is.” The FISA Amendment is nothing more than that same slavery and villainy rightfully opposed by Otis and Adams, and today by Senator Paul. It is time to reestablish the constitutional standard and abolish these modern day Writs to protect the natural rights of man to his privacy and property. 

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