Talk given to the Bostonian Society, Old State House Museum

Boston, MA | February 23, 2011

 

Before I came here, I took another look at that big painting of James Otis which hangs in the new state house, and it caused me to wonder: How many of us, had we been living in the 1760s, would have appreciated the significance of Otis’s argument against the infamous writs of assistance?  (This a rather small room, don’t you think, for such a large argument?)  And, if we had been here, would we have applauded vigorously as “child Independence was born,” or would we have supported Governor Hutchinson and his fellows in their pretentious red robes and foppish wigs?

 

Were James Otis here with us this evening, I’m sure he would want to know: Are we Whigs, forever vigilant against potential abuses of governmental power, or are we Tories, willing to concede unlimited power to the next royal sycophant who promises to protect us from the “them” – whoever the “them” of the moment are?  “Does my legacy live,” he would ask, “or have I been pickled for tourists to gawk at?”

“Why, yes, Mr. Otis,” we would reply. “Of course we honor your legacy; it is the supreme law of our land. Your friend Adams wrote it into our state constitution, but the Fourth Amendment to the federal Constitution says it best . . . .”

 

“Yes, yes, those are fine words,” Otis might reply, “but what do they mean today?“ For example, suppose John Hancock owned one of those fancy laptop computers that could hold all his papers, and those of all my clients as well. Would the Bluecoats be able to search it without a specific warrant from an independent judge – one that establishes probable cause to believe that a crime has been committed and that evidence of the crime is to be found in the thing to be searched?

 

“Also, would anything prevent those customs agents from transmitting the entire contents of  Hancock’s computer to anyone they please, including Boston police, the FBI, British intelligence, his commercial rivals, or the Boston Gazette, thereby destroying Hancock’s chances of being elected governor  some day?”

 

Our answer would be embarrassing, I think. Today’s customs agents, working at Logan Airport, claim the authority to seize anyone’s laptop  upon entering the United States, keep it as long as they want, search it thoroughly, and forward its contents to whomever they wish.  They don’t have to persuade a judge that they have probable cause to believe that a crime has been committed and that evidence of that crime is in the thing to be searched. They don’t have to get a judicial warrant and return an inventory, as Otis advocated and the Fourth Amendment was once thought to require. They can just seize your laptop or Blackberry, keep it as long as they like, search it four ways to Sunday, copy its entire contents, and  use whatever they find to harass, defame, or prosecute you, or to put you on a no fly list.

 

Today’s customs officers don’t need a writ of assistance to undertake a general search.  They don’t have to confine their seizures to daylight hours, or limit their curiosity to contraband, as Charles Paxton did.  They can look for documents critical of government officials, or the latest version of French postcards. They can see what articles Hancock descendants have been writing, or what papers they have been sending satires too. They can seize all of authors’ papers and effects, and all of  their most privileged communications with lawyers, keep them for months, and read them at leisure. They have already done this to more than 3,000 American citizens and more than 66 hundred foreigners – all by executive fiat. Any one of us could be next, especially if we contribute money to Wikileaks.

 

Were Otis living today, he would be very disappointed. “You have been terrible keepers of  the faith,” he would say. “Paxton’s agents ransacked our warehouses, but never outside the presence of our sheriffs, who could testify against them. Unlike your police, our constables never allowed government agents like your CIA and FBI to kidnap people out of our ports, and ship them to the Barbary States to be tortured. The Redcoats occupied our homes, but they never tortured their prisoners the way your CIA and Army tortured theirs, and claim the power to resume torturing them, if current president insists. Nor did General Gage’s men claim the power to assassinate British subjects the way your elected king claims the power to murder American citizens.” 

 

“Indeed, compared to your government, the one we revolted against was a paragon of virtue. I’m sorry, but you have not kept the faith. Indeed, your custodianship has been a disgrace.”