Thursday, June 13, 2013

The NSA Scandal Violates the Lessons of Our History and Our Constitution

The NSA Scandal Violates the Lessons of Our History and Our Constitution:
When British soldiers were roaming the American countryside in
the 1760s with lawful search warrants with which they had
authorized themselves to enter the private homes of colonists in
order to search for government-issued stamps, Thomas Paine wrote,
"These are the times that try men's souls." The soul-searching
became a revolution in thinking about the relationship of
government to individuals. That thinking led to casting off a king
and writing a Constitution.
What offended the colonists when the soldiers came legally
knocking was the violation of their natural right to privacy, their
right to be left alone. We all have the need and right to be left
alone. We all know that we function more fully as human beings when
no authority figure monitors us or compels us to ask for a
permission slip. This right comes from within us, not from the
Thomas Jefferson made the case for natural rights in the
Declaration of Independence ("endowed by their Creator with certain
inalienable rights"). The Bill of Rights was added to the
Constitution to reduce to writing the guarantees of personal
liberty. ("Congress shall make no law abridging the freedom of ...
religion ... speech ... press ... assembly..." "No person shall ...
be deprived of life, liberty, or property, without due process of
law..." "The enumeration in the Constitution of certain rights
shall not be construed to deny or disparage others retained by the
And, of course, to prevent the recurrence of soldier-written
search warrants and the government dragnets and fishing expeditions
they wrought, the Constitution mandates that only judges may issue
search warrants, and they may do so only on the basis of probable
cause of crime, and the warrants must "particularly describ(e) the
place to be searched, and the persons or things to be seized."
Last week, we discovered that the government has persuaded
judges to issue search warrants not on the constitutionally
mandated basis, but because it would be easier for the feds to
catch terrorists if they had a record of our phone calls and our
emails and texts. How did that happen?
In response to the practice of President Richard Nixon of
dispatching FBI and CIA agents to wiretap his adversaries under the
guise of looking for foreign subversives, Congress enacted the
Foreign Intelligence Surveillance Act (FISA) in 1978. It prohibited
all domestic surveillance in the U.S., except if authorized by a
judge based on probable cause of crime, or if authorized by a judge
of the newly created and super-secret FISA court. That court was
empowered to issue warrants based not on probable cause of crime,
but on probable cause of the target being an agent of a foreign
The slippery slope began.
Soon the feds made thousands of applications for search warrants
to this secret court every year; and 99 percent of them were
granted. The court is so secret that the judges who sit on it are
not permitted to keep records of their decisions. Notwithstanding
the ease with which the feds got what they wanted from the FISA
court, Congress lowered the standard again from probable cause of
being an agent of a foreign power to probable cause of being a
foreign person.
After 9/11, Congress enacted the Patriot Act. This permitted
federal agents to write their own search warrants, as if to mimic
the British soldiers in the 1760s. It was amended to permit the
feds to go to the FISA court and get a search warrant for the
electronic records of any American who might communicate with a
foreign person.
In 30 years, from 1979 to 2009, the legal standard for searching
and seizing private communications -- the bar that the Constitution
requires the government to meet -- was lowered by Congress from
probable cause of crime to probable cause of being an agent of a
foreign power to probable cause of being a foreign person to
probable cause of communicating with a foreign person. Congress
made all these changes, notwithstanding the oath that each member
of Congress took to uphold the Constitution. It is obvious that the
present standard, probable cause of communicating with a foreign
person, bears no rational or lawful resemblance to the
constitutionally mandated standard: probable cause of crime.
Now we know that the feds have seized the telephone records of
more than 100 million Americans and the email and texting records
of nearly everyone in the U.S. for a few years. They have obtained
this under the laws that permit them to do so. These laws -- just
like the ones that let British soldiers write their own search
warrants -- were validly enacted, but they are profoundly
unconstitutional. They are unconstitutional because they purport to
change the clear and direct language in the Constitution, and
Congress is not authorized to make those changes.
These laws undermine the reasons the Constitution was written,
one of which was to guarantee the freedom to exercise one's natural
rights. These laws directly contradict the core American value that
our rights come from our humanity and may not be legislated away --
not by a vote of Congress, not by the consensus of our neighbors,
not even by agreement of all Americans but one.
The government says we should trust it. Who in his right mind
would do so after this? President Obama says the feds have your
phone records but are not listening to your calls and will not read
your emails. Who would believe him? James Clapper, the director of
national intelligence, testified that the feds were not gathering
vast data on Americans. Who would trust him? The NSA says that
Congress knew about all this, but its members were prohibited from
telling the American people. What kind of a democracy is that?
The modern-day British soldiers -- our federal agents -- are not
going from house to house; they are going from phone to phone and
from computer to computer, enabling them to penetrate every aspect
of our lives. If anything violates the lessons of our history, the
essence of our values and the letter of the Constitution, it is