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The leak, the NSA, and the 4th Amendment

Posted by Richard on December 20, 2005

I must confess that I always get a bit nervous when I hear the initialism "NSA," especially when accompanied by the words "domestic surveillance." So my first reaction upon hearing about the NYTimes story, although milder than for instance Jed Baer’s, was nonetheless negative. What the friggin’ hell was Bush thinking? Why didn’t they go to that FISA court to get warrants?

This concern was tempered by some perspective. Most of the critics (not including people like Jed) are either forgetting recent history or hypocritically holding this administration to a different standard than the previous one. Does the name Echelon ring a bell? As Mark Levin noted:

There are no warrants. No probable cause requirements. No FISA court. And information is intercepted that is communicated solely between U.S. citizens within the U.S., which may not be the purpose of the program but, nonetheless, is a consequence of the program. ECHELON has been around for some time. The media and members of Congress didn’t accuse Bill Clinton, under whose administration the program apparently moved into full swing, of "domestic spying" or violating the Constitution. Is ECHELON constitutional? Congress hasn’t defunded it. So, it seems to me this entire current debate, unleashed by the New York Times last week, about expanding the NSA’s eavesdropping authority (exactly what is expanded and how, we still aren’t certain) is, well, disconnected from reality.

And here’s some much-needed perspective: Bush authorized monitoring phone calls between al Qaeda operatives in other countries and people in the U.S. in order to prevent another 9/11-style terrorist attack; Clinton authorized Echelon to monitor millions of phone calls and emails inside the U.S. in order to spy on foreign businesses:

The massive invasion of privacy was justified by Echelon’s defenders as an indispensable national security tool in the war on terror.
But Clinton officials also utilized the program in ways that had nothing to do with national security – such as conducting economic espionage against foreign businesses.

"The Clinton administration has attached especial importance to economic intelligence, setting up the National Economic Council [NEC] in parallel to the National Security Council," the Monitor reported in 1999.

"The NEC routinely seeks information from the NSA and the CIA," the paper continued, citing anonymous officials. "And the NSA, as the biggest and wealthiest communications interception agency in the world, is best placed to trawl electronic communications and use what comes up for US commercial advantage."

Which of those purposes strikes you as the more justifiable?

Yes, I know that "everybody does it" doesn’t excuse doing the wrong thing. I’m just saying put it in perspective. The federal government has exceeded its Constitutional bounds a bazillion times in my lifetime, and almost every one of those times it’s had less justification than "stopping a massive terrorist attack." Even if what the NSA did under Bush is wrong, it’s a damn sight less bothersome to me than most of what the feds do.

The Democrats and their media friends who are up in arms over the NSA surveillance are the same people who demanded to know why the administration didn’t "connect the dots" before 9/11. Phone calls from al Qaeda to people in the U.S. are pretty damn important dots. If an al Qaeda leader in Pakistan is talking to someone here in Denver, I want there to be some way to find out what they’re talking about. So I’m open to doing what the administration did, and I’m willing to listen to arguments justifying it.

Thus I found Dale Franks’ post on Monday pretty persuasive. For openers, I’m embarrassed to admit that he had to remind me of the exact language of the 4th Amendment:

Note the language of the text. The constitution does not say that people will be free from all warrantless searches. They shall be free from unreasonable searches. Warrantless searches and seizures are conducted every day in the United States, under a variety of reasonings, such as exigent circumstances, searches incident to arrest, etc. Much of the uproar over this policy seems to stem from an assumption that all searches require warrants. This is simply untrue, and has never been true. Warrants are generally required, but not always required.

Yep, that’s what it says — "unreasonable." I’m a strong proponent of applying the Constitution according to the "plain meaning" of the words. I’m pretty certain that the plain meaning of what is "reasonable" — either today or 216 years ago, take your pick — certainly does include monitoring communications between persons in the U.S. and foreign enemies waging war against it. 

Franks went on to point out that the surveillance in question is for intelligence-gathering, not for pursuing criminal charges against the subjects, and that this too makes a big difference. If we were monitoring criminals to obtain evidence to be introduced at trial, Franks argued, then a warrant would be required. But that’s not the case here:

The only question in this case, then, is whether the president can, as commander in chief during a time of war or insurrection, order surveillance of American citizens who are in communication with the enemy, for the sole purpose of gathering intelligence about enemy intentions, and where no criminal jeopardy ataches to the surveillance subject.

Franks explored this question in depth, examining both the Constitutional and statutory issues. He concluded that this surveillance is clearly not a 4th Amendment violation, and "the question of whether it is a violation of FISA is eminently debatable." Read the whole thing. I’m persuaded, but then again, maybe I’ve been swayed by my concern that too many people aren’t taking the Islamofascist threat seriously enough.

Or by my deep suspicion of the motives of most of the critics. After all, these are the people who were so concerned about violations of national security law when Valerie Plame’s name was "leaked" that they demanded an independent counsel investigation. Why aren’t they interested in who broke the law by leaking the NSA story to the NYTimes? Why aren’t they calling for reporters James Risen and Eric Lichtblau to get the Judith Miller treatment and sit in jail until they reveal their sources? I think I know the answer — because they have other priorities than upholding national security laws.

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One Response to “The leak, the NSA, and the 4th Amendment”

  1. David said

    No, the people who got upset about the warrantless wiretapping were not the same people who wanted the dots conntected prior to 9-11. They were the people who know all too well that reinstating a demolished constitution would be a largely uphill battle. Now Obama jumped in and granted immunity to the telecoms. You should know that you will never be able to make a private phone converstaion, write an e-mail or even use the internet without tacet licence to allow it to be tapped by federal authorities. You say, well, I’m not a terrorist, I’m doing nothing wrong. Understood. But just wait a few years when more rules are bent out of shape for whatever reason. Wait until all of your rights for probable cause, Habeus Corpus, free speech are dismantled among a context of indifferent idiots who never understood or cared about our Constitution anyway. What are you going to do, then? At what point is this country not worth fighting for? At what point do you draw the line? For all of the thousands of soldiers who died to preserve our way of life, and our civil liberties, they twist the story to make those most aware of the dismantlement of the Federal Constitution look like the fools, the enemy. What are you doing to maintain our way of life when it has been threatened from both that of the terrorists and an incompetent government that seizes this opportunity to dismantle your civil rights in an environment of fear and uncertainty? All this insanity. What happened to the “terrorist threat level” chart that just dissappeared without explanation? How much can you consider that all of this was developed for an alternative purpose?

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