Are Federal Spying Powers Modern Day Writs of Assistance?

By Daniel Brookman

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

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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 4thAmendment 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.

Daniel Brookman is an independent insurance whose practice focuses on estate and business planning strategies utilizing life insurance and other related products. He serves as a trustee on the board of his local NAIFA chapter where they advocate at both a state and national level for the preservation of tax favorable treatment of insurance products and investment accounts. He also serves on the board of a charter school and is an advocate for a free market in education.

This article first appeared at Mises.org

Image credit: The Anti-Media


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3 Comments on "Are Federal Spying Powers Modern Day Writs of Assistance?"

  1. Understand that any Tyranny we face now and even more so in the future is from our own Domestic Feral Governments.
    https://westernrifleshooters.wordpress.com/2018/01/01/psa-6/

  2. Grace by Faith | January 3, 2018 at 9:40 am | Reply

    Great Britain is bankrupt and as a result was taken off common law (where there is 800 years of jurisprudence) and put on admiralty law, like every bankrupt UN nation, so common law arguments will never win. As I wrote before, using common law arguments like Otis did, in an admiralty venue is like trying to get a haircut at Taco Bell. Never going to happen. We’re still a British colony, so by extension, we are ruled with British admiralty.

    Admiralty is contract law – contract because they want us to pay back the money for the continuing bankruptcies. Admiralty courts are the same as courts martial, and due to these bankruptcies, we’re all under martial law rule, enslaved to uphold the debt. See: Capitis Diminutio Maxima. And martial law is only in a military venue – see: gold fringe around the flag. In this military venue, we are the enemy – supposedly because we created the debt, which, of course is not true. We are not bankrupt, and the debt is fake – of course it is, they lie about everything.

    Rand Paul is controlled opposition. His father he does the Tubal-Cain Pass Grip of a Master Mason handshake to show allenigance to the Craft as an adept, and his mother is an Eastern Star (Lucifer is the eastern star).

    “Synarchy…is ‘government by secret societies’,
    or by a group of initiates who operate from behind the scenes.
    It is an analogue of ‘theocracy’, or rule by a priesthood.”
    ~ Marquis Alexandre Saint-Yves d’Alveydre

    Ron Paul reveals his true globalist colors by maintaining that Islamic terrorists destroyed the Twin Towers on 9-11, and that the U.S. Military should be used against them. “Why are we taking precious military and intelligence resources away from tracking down those who did attack the United States–and who may again attack the United States–and using them to invade countries that have not attacked the United States?” (Ron Paul Speaks, fn. 22 Ron Paul, “Questions That Won’t Be Asked About Iraq,” U.S. House of Representatives, Sept. 10, 2002.)

    The truth is, Ron Paul is a free trade globalist who desires an international currency. The following statement was made by Congressman Paul in an address to the House of Representatives in 2001:

    “There’s nothing to fear from globalism, free trade and a single worldwide currency…. The effort in recent decades to unify government surveillance over all world trade and international financial transactions through the UN, IMF, World Bank, WTO, ICC, the OECD, and the Bank of International Settlements can never substitute for a peaceful world based on true free trade, freedom of movement, a single but sound market currency, and voluntary contracts with private property rights…. The ultimate solution will only come with the rejection of fiat money worldwide, and a restoration of commodity money. Commodity money if voluntarily and universally accepted could give us a single world currency requiring no money managers, no manipulators orchestrating a man-made business cycle with rampant price inflation.” (Congressional Record, 13 March 2001)

  3. Good points. The combination of spying with secrecy and lack of actual oversight is toxic. It invites rampant abuse and government by runaway criminal spies – which is the reality in the US/UK and many other places today.

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