Misplaced Faith

We open today’s blog post with a quote from George R. R. Martin, affectionately known, I am told by friends who know him, as “GRRM”:

“You esteem this Penrose more than you do my lords bannermen. Why?”

“He keeps faith.”

“A misplaced faith in a dead usurper.”

“Yes,” Davos admitted, “but still, he keeps faith.”

“As those behind us do not?”

Davos had come too far with Stannis to play coy now. “Last year they were Robert’s men. A moon ago they were Renly’s. This morning they are yours. Whose will they be on the morrow?” ^[1]George R. R. Martin, A Clash of Kings: A Song of Ice and Fire: Book Two.

We follow with questions posed by the blogging community with which I identify, noting that this quote contains the grim answer. 

On April 27, Jeff Gamso of Gamso – For the Defense, wrote about the so-called “Millenium Bomber,” and the tortuous path to his sentencing after conviction. He noted that he hadn’t written about the Boston Bombers because…well, he felt enough had been said about that by Scott Greenfield, Mark Bennett, Gideon, Kennedy, and myself, among others.

But, as Jeff points out,

Look, the bombing at the Boston marathon and all that followed scared folks shitless.  Scared them more, in many respects, than did the planes on 9/11.  But they’re of a piece.

The case of the Millenium Bomber, as noted, had a tortuous path to sentencing, primarily because of this cloak of fear — or is it simply pure unadulterated vengeance? — with which the United States has cloaked itself of late.

In any event, the judge in that case, finally adequately pounded into coming up with what one hopes is a satisfactory sentence by the repeated appeals of the government and chastisement of the 9th Circuit, wrote (and I re-quote from Jeff here):

This case provokes our greatest fears. In the late 1990s, Mr. Ressam plotted a terrorist attack against the United States with the potential to kill and injure a large number of people. Because Mr. Ressam planned this act of violence and took steps to carry it out, many, including the federal government, believe that Mr. Ressam is a continuing threat and he should never see freedom again. But fear is not, nor has it ever been, the guide for a federal sentencing judge. It is a foul ingredient for the sentencing calculus.

The warning — italicized in the quote — is,

For judges imposing sentence (or deciding whether to expand the public-safety exception to cover all information the cops would like to know), for legislators looking for more ways to write laws so that the protections of the Bill of Rights will only be available to those who have no need for or interest in them, and for all of us inclined to buckle with fear and say “how far” when some government worker says to strip and bend over and pull apart the cheeks.

Is this really what Americans want? If so, why? I mean, is it really just fear, as Jeff thinks? Or is there something more dire inherent in “writ[ing] laws so that the protections of the Bill of Rights will only be available to those who have no need for or interest in them”?

Gideon, in “The Cost of Tsarnaev: the inexorable march toward totalitarianism,” warns us about making exceptions — pretending the Constitution doesn’t exist — just because we are particularly infuriated over a certain criminal, and says, concerning pretending Tsarnaev doesn’t have the right to an attorney, or to remain silent:

The outrage emanating from every corner of this great nation should be deafening. We should be pounding down the doors of our elected representatives, demanding that they pledge never to so abuse our rights again.

But it isn’t. And we aren’t.

So Gideon runs this out to an absurd conclusion:

If today, it’s okay to pretend like my right to counsel doesn’t exist, then maybe tomorrow my right to free speech doesn’t exist. Maybe tomorrow the government will have license to spy on me wherever I go, without my permission; reading my text messages and my e-mails because terrorism. Maybe tomorrow a high profile, well-respected and intelligent Federal Circuit Court of Appeals judge will suggest that we give up a little more privacy for perhaps a little more security.

Only, it turns out, that’s not actually an absurd position anymore.

Why are we okay with this?

First of all, there’s the fact that — as I wrote the other day — each of u is in the crazy position that we just don’t think it can happen to us. Second, police can already access a huge amount of your personal digital data without a warrant. So, meh…. Then, of course, there’s the threat of CISPA, the so-called Cyber Intelligence Sharing and Protection Act.

Don’t make the mistake of thinking, when they include the word “Protection,” that they’re talking about your protection, either. The bill — allegedly intended to protect the nation by giving your private web browsing history and other information to the military, the National Security Administration, and others-as-yet-unspecified — contained a provision protecting private companies like AT&T, Sprint, etc., in the event you were erroneously or negligently harmed, damaged, arrested, killed, or whatever, due to those companies you trusted with your data giving it over to the government, or someone else, “for cybersecurity purposes.” There was no protection in there for you.

Which is why President Obama — no friend of your privacy, but forward-thinking enough to consider Democrats running for office in the future — threatened to veto the bill.

And, oh, by the way: Google Glass.

If Boston taught us anything, it should have taught us that law enforcement will just do whatever it wants, when it wants, regardless of laws, or even the Constitution of the United States. Most people will cheer them on.

I doubt seriously that Obama’s veto will even slow anyone down.

Scott Greenfield claims,

Some (like me) would argue that privacy pervades the Constitution, like the Fourth Amendment’s protection against unreasonable searches and seizures, but Poser disagrees.  The word may not be there, but is it a stretch to conclude that the 1st, 3rd, 4th, 5th and 9th Amendments don’t relate, as the Supreme Court has held case after case, [and don’t protect] our right to privacy?

I agree with Scott (and Gideon), but what do I know? I’m just a criminal defense lawyer who makes it a habit of paying attention to the erosion of constitutional rights because, after all, the Constitution was written to protect bad people, so they could do bad things, with complete immunity.

And I only defend bad people who do bad things. Not my fault. Innocent people never get (Update 9/26/2016: link broken) arrested.

What will Americans do when privacy becomes a thing of the past? Are we really okay with government having all this information? If so, why?

The GRRM/grim answer is that far too many of us have a misplaced faith in some very live usurpers.

Mayor Bloomberg — he of the “No Extra-Large Sodas For You!” fame — says,

“The people who are worried about privacy have a legitimate worry,” Mr. Bloomberg said during a press conference in Midtown. “But we live in a complex word where you’re going to have to have a level of security greater than you did back in the olden days, if you will. And our laws and our interpretation of the Constitution, I think, have to change.”

The “olden days,” when no one had to worry about the Boston bombers, or 9/11. Our quaint fears from days of yore merely included the possibility that our government might go all military on us and shoot the hell out of a few people. Or maybe declare war on us, wounding, maiming, or killing thousands more.

And over what? Privacy?

One of the primary causes of the first Revolutionary War were “general warrants,” which

spurred colonists toward revolution and directly motivated James Madison’s crafting of the Fourth Amendment.

The experience of the colonists was very similar to what Bloomberg and others want us to adopt today:

Reasonable search and seizure in colonial America closely approximated whatever the searcher thought reasonable. ^[2]Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search & Seizure, 1789-1868, p. 294, n. 87.

The founders, which includes all the Americans who voted to ratify the Constitution, expressly rejected this by adopting the Fourth Amendment. ^[3]Id. There is no reason to believe that we who claim to embrace the Constitution and have not amended it to alter the Fourth Amendment think otherwise.

But our leaders do. Law enforcement does. “Reasonable” search and seizure today is whatever law enforcement says.

What? A judge reviews that? Are you trying to make me bust a gut laughing? (In any event, a judge is still very much a part of the government, yes?)

Once upon a time, perhaps, government officials and law enforcement officers, though never perfect, viewed themselves as public servants. They were our men and women. The morning of Boston’s “sheltering in place,” they were someone else’s. They certainly were not the servants of those citizens ordered at gunpoint from their own homes in violation of every fiber of the United States Constitution.

And whose are they tomorrow?

“Davos, I have missed you sorely,” the king said. “Aye, I have a tail of traitors, your nose does not deceive you. My lords bannermen are inconstant even in their treasons. I need them, but you should know how it sickens me to pardon such as these when I have punished better men for lesser crimes.” ^[4]George R. R. Martin, A Clash of Kings: A Song of Ice and Fire: Book Two.

We need the police. We need them to serve and to protect. We do not need them as Overlords. And they need to uphold their oaths to us and to our Constitution.

As it stands right now,

You have every right to reproach me, Ser Davos. ^[5]George R. R. Martin, A Clash of Kings: A Song of Ice and Fire: Book Two.

There is no rule of law. There is only the rule of the men and women of “law enforcement.”