Congress Tunes Its “Instrument of Villainy”

by Nat Hentoff

My most exciting memory of growing up in Boston during the Great Depression was learning how our independence was born. A pivotal event occurred in 1761 in a Boston courtroom. Lawyer James Otis Jr. spent nearly five hours arguing against extension of the “writs of assistance,” which British officials drew up themselves—like today’s FBI does—so they could burst into unspecified colonists’ businesses and homes in search of smuggled goods and other items.

As I chronicled in my book Living the Bill of Rights, Otis told the magistrates: “The freedom of one’s house is an essential liberty, and any law which violates that privacy is an instrument of slavery and villainy.”

Otis lost the case, but in the courtroom was a lawyer named John Adams (later our second President), who wrote in his notebook that very night: “Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”

Otis subsequently proclaimed in a pamphlet that those writs violated the British constitution and Magna Carta. Hence, as I have told American schoolchildren over the years, they inspired the Fourth Amendment to our Constitution. This part of the Bill of Rights guards against unreasonable searches and seizures and decrees that any warrant be judicially sanctioned and supported by probable cause.

Adams later wrote, “Otis was a flame of fire [that night].” But since 9/11 the Bush- Cheney Administration and Barack Obama’s even more harshly have dimmed that flame.

And now our lawmakers practically eviscerated the Fourth Amendment on December 28, 2012. As Robert Pear reported in the New York Times, “Congress gave final approval… to a bill extending the government’s power to intercept electronic communications of spy and terrorism suspects after the Senate voted down proposals from several Democrats and Republicans to increase protections of civil liberties and privacy.” The vote was 73 to 23.

The dissenters worried that electronic surveillance, though directed at suspected non-citizens abroad in contact with Americans, “inevitably swept up communications of Americans as well.”

More pointedly, despite President Obama’s strong support of the bill and its passage in the House of Representatives, Senate Democrat Richard J. Durbin of Illinois reminded those few of us who were paying attention that this extension of the government’s surveillance authority for five more years “does not have adequate checks and balances to protect the Constitutional rights of innocent American citizens.”

How many of us are still regarded by our intelligence agencies as “innocent American citizens”?

Dig this from Pear’s report: Senator Mark Udall (D-Colorado) said he and Senator Ron Wyden (D-Oregon) “were concerned that ‘a loophole’ in the 2008 law [Foreign Intelligence Surveillance Act] ‘could allow the government to effectively conduct warrantless searches for Americans’ communications.’”

Of course, Director of National Intelligence James R. Clapper Jr. told Congress, “There is no loophole in the law.” So how come, fellow Americans, Pear reported that “by a vote of 52 to 43, the Senate…rejected a proposal by Mr. Wyden to require the national intelligence director to tell Congress if the government had collected any domestic e-mail or telephone conversations under the surveillance law”?

In the midst of Republican and Democratic administrations’ reluctance to tell We the People what the hell is going on as the government invades our privacy ever more contemptuously, Senator Wyden told his colleagues that this impervious secrecy from on high “reminded him of the ‘general warrants that so upset the colonists’ more than 200 years ago.” Me too.

Senator Rand Paul (R-Kentucky) noted, “The Fourth Amendment was written in a different time and a different age, but its necessity and its truth are timeless.” He added: “Over the past few decades, our right to privacy has been eroded. We have become lazy and haphazard in our vigilance.”

We’ll long be paying for our laziness in ways we will not even know while those we keep electing continue to pry into our lives.

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Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America and Living the Bill of Rights.