Whatever else happens in this degrading age of universal surveillance, let us as New Mexicans make sure that if we’re stopped in a speed trap for going ten miles an hour too fast that our entire genetic identity isn’t taken from us by some guy with a swab, blue gloves, and a gun.
It’s bad enough that Supreme Court Justice Anthony Kennedy in his majority opinion last week declared that seizure of DNA is a “reasonable search that can be considered part of a routine booking procedure” in serious crime arrests. But then the AP reported that New Mexico Governor Susana Martinez was considering proposing to the Legislature next year a bill to make DNA a reasonable search in misdemeanors as well as felonies.
The DNA ruling, and Gov. Martinez’s reaction, point to the disturbing connection between warrantless surveillance and prosecutorial bias and the awesome power of mere accusation in the Scandal Culture of the United States, a connection which drowns out the stern admonitions of the Fourth Amendment to protect us from government peeping toms in much the same way that corporate “free speech” drowns out the First Amendment rights of individual citizens.
It’s fitting that Justice Kennedy wrote not only the DNA majority opinion but also the 2008 majority opinion in Citizens United v. Federal Election Commission which, in the words of the late Ronald Dworkin in the New York Review of Books, “guaranteed that big corporations can spend unlimited funds on political advertising in any political election” based on the “preposterous” view that corporations must be “treated like real people under the First Amendment.”
Both rulings are a perversion, in my view, of the Constitutional intention to protect a person’s right to speak their mind on any matter in any forum and be heard in the marketplace of ideas, and the Constitutional intent to protect a person’s freedom from the power of accusation and prosecution.
Equating the spending of money with freedom of speech literally allows all those of meager or modest means to be shouted down by those with fabulous powers of finance and lobbying. Gathering DNA on a hunch that a serious crime is being committed, or gathering it from anyone who breaks even minor infractions, ignores the Fourth Amendment’s admonition that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated….”
Probable cause, however, is more than an accusation. It is given under oath to a judge, who considers whether to issue a warrant for searches, a warrant that stipulates “the place to be searched, and the persons or things to be seized.”
The Supreme Court’s DNA ruling, and Gov. Martinez’s desire to apply it across the board, completely perverts the notion of a warrant that limits the conduct of a search to specific things and places under the judicial protection of probable cause. Gathering DNA as a “booking procedure” is a blanket search and seizure with no warrant, with no judicial oversight of executive authority, and no protection of “due process of law” guaranteed to all of us in the Fifth Amendment.
In a society that is literally awash in gossip, scandal, sensationalism, and accusation, and, it seems, is universally spied upon from phones to internet, prosecutorial power is vast and potentially ruinous of innocent lives.
Both the DNA and the Citizens United decisions give more power to the powerful. They are about the care and feeding of bullies, of strong arm corporations and the power of executive branch to destroy reputations without due process by simple accusation and a controlled or sympathetic press.
But, the counter-argument goes, if you don’t have anything to hide, why worry? It’s an argument so naïve that it’s hard to imagine anyone even asking it.
It assumes that the world is rational, just, and fair, and that government is too. It assumes there is no malice, no cheating, no fraud in high places, no abuse of power, no cover-ups, no revenge, and that mistakes, misapprehension, errors, and stupidity, are not part of the equation. If you extend the assumption of that argument, the world and its leaders are so perfect and clean that we really don’t need laws and constitutions at all.
In the wake of last week’s decisions and revelations most of us now live under two enormous black clouds, the long proven and long suffered consequence of loading the atmosphere with the waste from burning of fossil fuels, and the ubiquity of surveillance and the misuse of technology in the service of control – both conditions we cannot escape.
In fact, surveillance now is like the weather. All we can do is watch and duck and take precautions. Under the guise of protecting us, the national security state treats all of us either like potential outlaws or like data and debris tossed in the tornado of public opinion. If you’re treated like an outlaw, run for cover, be meticulous about obeying all the rules and giving the peeping toms and all their invasive devices, as little as you possibly can. And hope to heaven politics in America is not as mad, capricious, and malicious as it seems.
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