First they came for the communists, and I did not speak out—because I was not a communist;
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist;
Then they came for the Jews, and I did not speak out—because I was not a Jew;
Then they came for me—and there was no one left to speak out for me.
–Pastor Martin Niemöller
The claim that the “Constitution doesn’t apply to foreigners” didn’t begin with the Bush administration, but it gained a lot of momentum under it. So much so that I would guess everybody reading this article (thanks to both of you) has heard that claim multiple times and may even believe it to be legally sound. It isn’t.
The Constitution covers a lot of ground, so I am not going to pretend to offer a treatise on each provision that may or may not apply to foreigners. Instead, let’s keep this to the context in which the claim currently is being made in the news- that foreign terrorists have no constitutional rights under any circumstance.
First, let’s begin where any constitutional analysis should begin- its text.
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It turns out that the Chinese hacking of Google’s services, including gmail, was in fact facilitated by… Google’s cooperation with the US government. To make it easier for US law enforcement to monitor email accounts, Google built in a back door which the Chinese then exploited to gain access to Google’s systems.
As reported by CNN:
Google’s system isn’t unique. Democratic governments around the world — in Sweden, Canada and the UK, for example — are rushing to pass laws giving their police new powers of Internet surveillance, in many cases requiring communications system providers to redesign products and services they sell.
Many are also passing data retention laws, forcing companies to retain information on their customers. In the U.S., the 1994 Communications Assistance for Law Enforcement Act required phone companies to facilitate FBI eavesdropping, and since 2001, the National Security Agency has built substantial eavesdropping systems with the help of those phone companies.
Systems like these invite misuse: criminal appropriation, government abuse and stretching by everyone possible to apply to situations that are applicable only by the most tortuous logic. The FBI illegally wiretapped the phones of Americans, often falsely invoking terrorism emergencies, 3,500 times between 2002 and 2006 without a warrant. Internet surveillance and control will be no different.
Ezra Klein has argued that the Aughts will be most remembered for the rise of the internet. I have a feeling the next decade is going to be remembered in large part for society’s struggle to maintain privacy.
Consider, for example, that most new telephones contain GPS devices. A company which maintains data records of the movement of that phone could fairly accurately reconstruct much of the life of that phone’s owner- where the person lives, when the person leaves and arrives at work or home, who the person hangs out with (by cross-referencing other GPS devices which show up in the same place at the same time as the phone owner), who that person calls, and, increasingly, the internet surfing habits of the phone owner (which could reveal almost anything, from shopping preferences to political beliefs). Americans, and particularly conservative Americans, have spoken pretty strongly in favor of trading away some privacy in favor of enhanced security protection by the government. They are even willing to allow a stranger to view them in the virtual nude for the feeling of being safe, even if studies show the technology is only somewhat effective. But how will Americans feel if their entire life is downloaded by a foreign government, or a criminal, or sold to another corporation for marketing purposes?
How ironic that each new technology designed to make us feel safer, working with laws designed to make us feel safer, may actually actively be creating back doors which expose us all to significantly more risk. Americans may be willing to trade privacy for security now, but what happens when privacy is security?
In light of this new Underwear Bomber (Aside: Seriously? Coca-Cola can scrape the residue off the rats in their factories, repackage it as Coke Zero, have marketing teams use absurd gimicks , and sell it (at discount, no less) for more than $1.25 a can? And we can’t come up with a better name than the Underwear Bomber? Can’t someone find a way to -gate this name?), I’ve been reconsidering my outlook on what we can do to prevent domestic terrorism on airlines.
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From Politico:
1. President Obama takes the heat President Bush did not
2. Rep. Chaffetz still wants body scan ban
and from the Washington Post:
3. Republican senator DeMint holds up nomination for TSA chief
In summary, the bombing attempt is Obama’s fault, a Republican amendment would prohibit using full body scans at airports in security checks, and a Republican is preventing the confirmation of a new TSA chief, who would oversee airport security. Got it.

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