On Wednesday, Rand Paul led a nearly 13-hour filibuster of John Brennan's nomination to head the CIA in order to highlight how Americans' right to due process was in jeopardy by the president's use of drones.
In today's political environment, where American civil liberties are being scrutinized, we should consider how the Supreme Court has ruled in the past regarding our rights as U.S. citizens and how these decisions affect us today.
In this case, law enforcement agents used thermal imaging to detect hot spots outside of Kyollo's apartment. Upon seeing hot spots, the agents were able to secure a warrant to search the apartment where they found Kyollo had been growing marijuana. SCOTUS ruled 5-4 in favor of Kyollo that the use of thermal imaging constituted an illegal search. Scalia stated in the majority opinion:
"Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant."
Today, with the ever-expanding use of technology by the government for surveillance, including the controversial use of UAVs or drones over civilian air space, we should keep in mind that we are protected against unreasonable searches and seizures under the Fourth Amendment, especially those searches that would not be possible without such devices. In the near future we will more than likely see drones used to monitor U.S. citizen activity as well as gather intelligence domestically, but we do not yet know the extent of such activities.
Heller argued that the District of Columbia's laws, which effectively banned handgun ownership, infringed on his Second Amendment rights. SCOTUS ruled 5-4 in favor of Heller, once again reaffirming the individual right to keep and bear arms. In the majority opinion, the court recognized that the Second Amendment was put in place to prevent disarmament of the citizens' militia, so that no "politicized standing army or a select militia" would rule.
In addition, the ruling also points out that arms that are "in common use at the time" for lawful purposes are protected under the Second Amendment and can not be banned, and includes arms that the military may use. Furthermore, the ruling also mentions U.S. v. Miller for an example of arms that would not be commonly used by a militia, or those arms that are "dangerous and unusual," that would not be protected.
The court also mentions the common argument that these weapons may not be enough to fight against "modern-day bombers and tanks," it does not change the interpretation of the Second Amendment. Our legislators should keep this in mind when they are proposing new gun control legislation.
At issue here was the freedom of the press. The Nixon administration sought an injunction against both the New York Times and the Washington Post, in order to stop the publication of content from the Pentagon Papers, which was at the time classified information regarding decision-making practices in Vietnam. The court ruled 6-3 in favor of the New York Times Co., citing the importance of the First Amendment.
The court noted that there are limitations to the First Amendment and publication of such information that would lead to "grave and irreparable" danger, which may be cause for such limitations. However, many of the justices noted that the the freedom of the press should be preserved as a check against government power, particularly the executive. Justice Potter Stewart stated:
"In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people."
As our government wages the war on terror abroad, and especially here at home, the freedom of the press to present information that would scrutinize the executive's policy and enlighten the public is as applicable today as it was when this SCOTUS decision was handed down. We hear little from the press holding this administration accountable for policy such as fighting to keep the power to indefinitely detain U.S citizens under the NDAA or scrutinizing the justification of an executive "kill list" and how it is applied. Today, we need our press to be willing and able to scrutinize our government's policies and not just regurgitate partisan talking points.
Although the rulings in each of these cases serve to reinforce American civil rights, we must remember that in order for these cases to have reached SCOTUS, the government had to overstep its authority first. Government only derives its power from the governed, and the U.S. constitution was meant to explicitly enumerate the powers of the government. Today we take legislation like FISA, the PATRIOT Act, and the NDAA for granted. While Rand Paul was highlighting the peril that our civil liberties faced on Wednesday, we must continue to be vigilant in order to preserve our unalienable rights not just for us, but for generations to come as well.