http://mrzine.monthlyreview.org/2015/images/met_tat.jpgThe NSA's bulk collection of personal communications predictably and inevitably leads to the use of that information as the basis for jailing and prosecuting our clients. Civil suits against this snooping have met with some success, but they face the government's assertion of state secrets and political question. They risk becoming entangled in discovery disputes. No, the frontier of battle here is where it has always been: Government levels a charge against our client. And we have the power and the duty to inquire how they got the evidence. This is not, as we know, saying that our client must be guilty and we are going to quibble about evidence-gathering. The full inquiry into the government's methods often discovers that exculpatory evidence has been hidden, and that the word "intelligence" is simply a name that is given to hasty conclusions and unregulated suspicion. The term "intelligence" is simply another example of how language has been hijacked in the service of unaccountable power. I cannot predict how the coming struggle will turn out. I am heartened by knowing that in our lifetimes in the law, we have won victories by returning to the constitutional text -- think of Crawford v. Washington and Apprendi v. New Jersey. . . . And so our first weapon is the text and history and meaning of the fourth amendment, not as seen in former times, not as the government sees it in this time, but in a timeless and forward-looking way. The fourth amendment is not dead, though the devil's choir known as the NSA is loudly singing its requiem. Here is another thought. Many of the cases are about dope dealers, gamblers and defrauders. But the enduring value of the fourth amendment was established in those early precedents, about opponents of colonial rule and organizers against tyranny. The right to be free of intrusion is the right of all people in a world filled with injustice to communicate with one another, to understand their circumstances, and to act together in their common interest. That was Justice Jackson's message in Brinegar, brought to us fresh from his experiences at Nuremberg.

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