Robert F. Jakubowicz: Congressional watchdogs
Two local items in this newspaper last week about the Constitution caught my attention. One was a letter to the editor, warning that the government "is dis-regarding the Constitution and we can’t do a thing about it." This is one of those erroneous beliefs that are encouraged by Republican Party leaders who kowtow to fringe political groups with such views. Actually there is something being done.
The other newspaper item was an example of what is being done. It was the story about Berkshire Superior Court Judge Daniel Ford’s ruling prohibiting government prosecutors from using two pounds of cocaine as evidence in a criminal trial because law enforcement officers disregarded the Constitution in seizing it.
According to the Eagle story, the package containing the cocaine was spotted by Arizona law enforcement officials who notified the state police here because it was addressed to a local resident. Local law enforcement officials planned to deliver the package under the guise of a Fed Ex delivery. They obtained an anticipatory search warrant. This is a warrant which becomes valid after a future triggering event occurs. In this case it would have been the delivery of the package when the cocaine became available to be seized in the possession of the recipient.
But In the meantime, the recipient was entitled under the Fourth Amendment to a constitutional right of privacy regarding items in transit being mailed or shipped to him. Fed Ex posted a note in its tracking information that the package was in the possession of the police and that the addressee, according to the story, had a record of "armed violence." This posting apparently led law enforcement officials to open the package without a warrant to do so at that time to confirm it contained cocaine. Then, based on this search and the seizing of the cocaine, they obtained a warrant to search the addressee’s house where they found other evidence relating to drug dealing.
Judge Ford suppressed the use of all of this evidence against the addressee because the law enforcement officials did not have a warrant to open the package and seize its contents while it was in transit. The Constitution does not explicitly state that there is a right to privacy as such. But the Fourth Amendment’s explicitly stated right "of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," has been interpreted by the courts to mean that a right of privacy in these matters exists. The government’s interference without a warrant with effects like mail or packages in transit to destinations, which Americans have come to expect as a reasonable, constitutional right of privacy, violates that right.
I am sure that the person who wrote the letter to the editor expects privacy when it comes to mail and packages sent to her. One of the main reason she can rely on the government not violating this right of privacy is that lawyers, like Attorney Anthony Gianacopoulos, who challenged the government’s action in the local case, and judges like Ford and others in courts around the nation, act as watchdogs on an almost daily basis to protect such rights. This protection of constitutional rights by the legal profession is under-appreciated by the public.
There was also the revelation that the National Security Agency was snooping on millions of telephone call records. President Obama, contrary to his campaign vows for change and transparency, has continued some Bush administration practices of snooping on Americans based on questionable constitutional grounds for reasons of national security. This caused concern not only about whether the Obama administration is acting in disregard of the Constitution, but whether the government actually has the power to simply acquire such a mass of information about its citizens.
The American Civil Liberties Union (ACLU) is concerned that this is akin to snatching every American’s address book to compile a record of whom they talk to, about their families, friends, political and social associations and the like. The ACLU has filed legal action in a New York federal court challenging the constitutionality of the government’s review of these telephone records about Americans. The basis for the court challenge is twofold. One is the disregard of the First Amendment rights to free speech and association by having a chilling effect on the right of Americans to speak to anyone they want to, and to associate with anyone they want to. The other, is the disregard of the Fourth Amendment by an unreasonable search and seizure of a person’s private telephone records.
Eight U.S. senators have signed onto a bill to declassify the legal reasons for this activity, but not the details of national security operations, in the opinions of the secret government court that rules on these matters. The objective of this measure is to find out if these decisions are based on sound constitutional law reasoning.
These are just a few examples about what is being done by constitutional watchdogs and congressional institutions to deter the government from disregarding the Constitution.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.