All of our elected representatives in Washington, including the President, swear a sacred oath to “uphold the Constitution of the United States.” Yet in the wake of the on-going NSA snooping scandal, one wonders whether any of them have ever bothered to read that founding document.
Amendment #4 of the U.S. Constitution states, in part, 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 and no Warrants shall issue, but upon probable cause…and particularly describing the place to be searched and the persons or things to be seized.”
Some liberals, conservatives and even some “libertarians” are in disagreement over whether the NSA collection of domestic telephone and email data is, in fact, unreasonable. I assert that it isunreasonable precisely because we now know that the NSA has gone far beyond its Patriot Act or FISA (Foreign Intelligence Surveillance Act, 1978) authorization. Revelations to come will make this conclusion even clearer.
These laws allow the collection of intelligence information between “foreign powers or agents of foreign powers” in the U.S. and elsewhere. Yet even with the gathering and use of foreign intelligence, these laws prescribe certain legal procedures that must be followed to ensure that NSA spying serves a legitimate and legal purpose. On the other hand, the dragnet collection and storage of general domestic data such as phone records and email information (“metadata”) on U.S. citizens, either by the NSA, the FBI or any governmental intelligence agency, has never been specifically authorized by any law (although some secret FISA court may have signed off on such an outrage). Individuals under suspicion can be “searched” electronically but only with “probable cause” and then only with the issuance of a warrant specific to the place or person to be searched. None of this, I assert, has been followed in the recent disclosures about NSA spying.
Thus it appears that the NSA has been involved in an activity (apparently approved by the Department of Justice and the President) in likely violation of the 4th Amendment of the Constitution. The ACLU will test this theory with its legal suit that challenges the constitutionality of this broad based domestic data collection program.
The retort to all of this, of course, is that the threat of terrorism can justify almost anything that the government chooses to do in the name of “national security.” Nonsense. This theory has almost zero legal credibility. Our history contains a fair number of examples of government over-reach during alleged “emergencies” (President Truman’s attempted nationalization of the steel industry during the Korean War, for example) that have been sternly rebuffed by the Supreme Court as blatantly unconstitutional. And the reason should be obvious: Constitutional protection for individual rights is even more necessary when times are precarious than when they are not. After all, what are we fighting this alleged war on terror to preserve?
Which of course gets to the larger question of whether our government’s alleged war on terror and the preservation of individual rights under the Constitution are in any way compatible in the long run. There is a solid historical reason why the Founding Fathers, especially George Washington, argued that the U.S. must steer clear of any “foreign entanglements.” They knew based on the imperial British and Spanish experience, that foreign military interventionism must lead to an overall increase in governmental power and, thus, endanger the very liberties that the Constitution was created to protect. They also knew that interventionism abroad must invite retaliation and even repression at home and that “civil society” would always be endangered by expanding militarism.
The government surveillance infrastructure put into place after 9/11 can now capture almost every electronic communication (personal, financial, medical) between almost everyone on the planet. This development is unprecedented in human history and is an absolute litmus test for those who believe that a government with absolute power (over information) must eventually be corrupted. We are getting perilously close to the point where we must decide as a society whether adopting a technology for facilitating the U.S. mission as the world’s policeman is somehow more important than personal privacy, individual liberty, and perhaps even the Constitution itself.