Hide and Seek
Daniel J. Solove over at Concurrent Opinions ponders a response to the “Nothing to Hide” argument posited by supporters of unmitigated surveillance. He gets very close while considering the value of “not having to explain or justify oneself,” grasping at the same instinct the framers may have had when they wrote the Fifth Amendment. While often cited as the right to keep one’s mouths shut, the Fifth Amendment also guarantees due process when a person’s liberty is at stake (life, liberty and property).
There are numerous definitions of “liberty” but most sources define it as freedom from control, especially arbitrary or government control. If the reason liberty was included in the due process clause is to ensure freedom from arbitrary government control, we may find some context in examining the purpose and procedures of due process. As merely a conscientious citizen I don’t have the means to examine this issue to scholarly standards but it is not to big a stretch to suggest that the issue of what role warrants play in due process is a key question.
Under what criteria and to what extent can the executive branch engage in developing a criminal case without a check from the judiciary? Another way to state this (and one that has been causing strife in our country for the past half century) is what level of privacy may not be violated by the executive (with or without judicial approval)?
Where Solove cuts short is where I suspect the legal argument may begin: what threat of invasion of privacy constitutes deprivation of liberty? If the executive can, without judicial oversight, infringe on the privacy of its citizens in the course of developing a criminal case, at what point do we stop feeling free and by extensions stop being free?