The NSA Has Unconstitutionally Monitored The Telephone And Email Logs Of American Citizens And Breached The Trust That We Should Have In Our Privacy.
Have there been other times when the actions of our Government overstepped it’s bounds?
The National Security Agency not only intercepted the telephone calls of suspected terrorists but also collected in bulk the logs of telephone calls and emails of ordinary citizens. Monitoring also included the personal cell phone of our ally, Chancellor Angela Merkel of Germany. Apparently the monitoring of Merkel has gone on for many years during her ascent to the Chancellorship.
The earliest overreach that I am familiar with is by United States President Abraham Lincoln during the War Between the States. Lincoln suspended the Writ of Habeas Corpus against citizens. The Writ of Habeas Corpus is procedural so that a criminal suspect is given the reasons for his or her arrest. Lincoln felt that suspension of the Writ was within his powers though it is only a power of Congress. Several were arrested on suspicion of favoring the Confederate States. In the case of one citizen in Maryland that was arrested by military authorities, Chief Justice Taney of the United States Supreme Court ruled that Lincoln had overstepped his authority. However, Lincoln disregarded the Chief Justice’s ruling and continued to suspend the Writ on his own authority. Lincoln was in fact defiant during a public speech on Independence Day suggesting that the suspension of Habeas Corpus was necessary during the rebellion of the Southern States.
A mere five years later a new United States Supreme Court essentially supported Taney’s position saying that only Congress could suspend Habeas Corpus and that no civilian could be tried in military court.
During World War I, in Schenck v. United States, Justice Holmes of the United States Supreme Court used the phrase, “clear and present danger”. Schenck, as a member of the Socialist Party sought to print and mail to American conscripts a leaflet with a message that the Thirteenth Amendment was violated by the conscription act and that conscripts were treated little better than convicts. Schneck had three charges against him including violation of the Espionage Act of 15 June 2017. Schneck argued his rights under freedom of speech. In Holmes opinion, he used the words, “clear and present danger” because America was at war and needed men to fight. Holmes further said that a man that falsely shouted “fire” in a theatre was not protected by his freedom of speech when he would surely cause a panic. The Espionage Act punished not only conspiracies to obstruct but also to actually obstruct. Holmes saw that success was not a necessary element of such a crime.
The final apparent injustice against American citizens was the imprisonment of Japanese Americans during World War II. When the Japanese attacked Pearl Harbor there were about 112,000 people of Japanese ancestry that lived on the West Coast of the United States. Seventy thousand were United States citizens. About five thousand refused to swear allegiance to the United States and to renounce allegiance to Japan. Several thousand evacuees requested repatriation to Japan. Many lived near military or sensitive installations and there was evidence of disloyalty among some.
In Korematsu v. United States, Korematsu Constitutionally challenged the relocation of himself and others of Japanese heritage and the relocation in camps. The relocation of Japanese was affirmed in Korematsu and Justice Holmes said, “ . . . because Congress, reposing its confidence in this time of war in our military leaders- as inevitably it must determined that they should have the power to do just this. We cannot- by availing ourselves of the calm perspective of hindsight- now say that at that time these actions were unjustified.”
Several of the Justices dissented though in a minority. Justice Jackson wrote, “ A citizen’s presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four- the others say being a German alien enemy, an Italian alien enemy and a citizen of American born ancestors, convicted of treason but out on parole- only Korematsu’s presence would have violated the order.”
Balancing the civil liberties and Constitutional rights of American citizens against real and perceived threats is often tough to do. I will not be happy if I ever learn that my telephone conversations are recorded or listened to. However, I am not terribly upset over a brief screening at the airport if I am kept safe on my flight. I also don’t care that captured enemy combatants might be kept at Guantanamo as I know that some of the really bad guys are removed from causing trouble again. I also don’t care if water boarding is used on captured enemy combatants if it saves American lives. That is what counts in my book.
We expect to exercise our civil liberties and to say what we want (to a point). We also want to feel safe in our homes and at public places and to feel like when we go to bed at night that there is a great likelihood that we will awake the next morning.
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