Warrantless wiretapping in national security cases? For it. Detaining citizens indefinitely without trial? Sure. Assassinating Americans abroad without making public the evidence or the legal rationale? Done. In October 2010, American Civil Liberties Union Executive Director Anthony Romero pronounced himself "disgusted" with the administration's record.
But there is one big redeeming item on his record: He has appointed to the Supreme Court people who don't entirely share his taste for aggressive statism. In two recent major decisions, both Sonia Sotomayor and Elena Kagan have declined to indulge ominous encroachments on personal freedom and privacy.
Their latest stand came in a case where police put a Global Positioning System on a suspect's car and monitored his every move for nearly a month -- without a warrant. The Fourth Amendment to the Constitution bars "unreasonable searches and seizures." But the Justice Department said that's irrelevant because attaching the device did not amount to a search.
At that point during oral arguments, Justice Stephen Breyer said, "If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States" -- a prospect he likened to the totalitarian surveillance depicted in George Orwell's "1984." The government's lawyer did not contradict him.
Obama's Supreme Court appointees recoiled at that prospect -- along with the rest of the court, in a rare unanimous verdict. Both also indicated a willingness to put tighter constraints on police than some of their colleagues might prefer.
Kagan signed onto an opinion by conservative Justice Samuel Alito taking the view that modern technology demands a new interpretation of what constitutes a search. In this instance, police can acquire far more extensive information about far more people than would have been imagined two centuries ago, when the Fourth Amendment was written.
In cases like this, Alito said, "society's expectation of privacy has been that law enforcement agents and others would not -- and indeed, in the main, simply could not -- secretly monitor and catalogue every single movement of an individual's car for a very long period."
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