Thinking Out Loud: The Founders, the Constitution and Spying on Americans

Defenders of the National Security Agency’s (NSA) surveillance program, in which the NSA “spied” by listening to the phone calls and reading the emails and texts of hundreds of millions of Americans, claim the program is perfectly legal.  The Foreign Intelligence Surveillance Act (FISA) that created NSA’s surveillance program was passed by Congress, is regularly reviewed by relevant agencies, and is overseen by FISA judges.  Meaning, they say, there is no violation of the 4th Amendment.

Then again, what that amendment actually says is that the people’s right “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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The 4th Amendment was included in the Bill of Rights because Americans were sick of British soldiers entering their homes and violating their privacy willy-nilly. Granted, those soldiers often had search warrants, but British officials issued those warrants for whatever reasons they arbitrarily chose, and they never explained those reasons to the Americans whose homes were being entered.  That is why the 4th Amendment requires “probable cause,” which means persuading a judge of the high “probability” a crime has been committed.  Only then would a judge grant a warrant allowing the state to enter a person’s property and search for proof of that crime.

British policy allowing the arbitrary violation of Americans’ right to be “secure in their persons, houses, papers, and effects” is also why the 4th Amendment says the search warrant must clearly identify “the place to be searched” and “the person or things to be seized.”

Compare that to the NSA policy that FISA has created.  That policy permits warrants to be issued to any NSA “investigator” seeking the phone calls and electronic communications of anyone in America, without probable cause, without naming the people whose records are sought, and without describing the place to be searched.

Indeed, today NSA agents looking to spy on American citizens need only claim that a citizen, or group of citizens, may be agents of a foreign power, or (in the wake the Patriot Act) may be in communication with a foreign-born person.

So “probable cause” went from being suspected of committing a crime to being suspected of communicating with a foreigner.   All NSA has to say to gain this surveillance power is that it is necessary “to protect against international terrorism.”

Noble ends never justify ignoble means.  The NSA policy is an erosion of the underlying principle of our Constitution, which is that government should only have the power it needs, not the power it wants.