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The Independent Institute
Commentary

NSA Snooping on Americans Is Unconstitutional and Outrageous


The firestorm of media coverage over a whistleblower’s revelation—that the National Security Agency (NSA) likely has been monitoring the telephone calls of most Americans and is likely reading some Americans’ emails, photos, and other electronic data without a search warrant when trying to catch suspected terrorists (a program called “Prism”)—has become muddled by pundits conflating the two distinct agency efforts.

From the limited information available on the programs—itself a problem because the United States still purports to be a republic—the first program is worse than the second. Although President Obama and other government officials keep insisting that no Americans’ phone calls were listened to, that should not comfort anyone. The former program is what the intelligence community calls “traffic analysis,” which means keeping track of the time, duration, and phone numbers of calls, and the second is called “content analysis,” which involves actually examining the content of communications. New technology has rendered examining communications content to be much less important to snooping; now, traffic analysis using supercomputers can be used to track people’s lives and whereabouts without ever examining content.

Although American laws have distinguished between traffic and content analysis, with intelligence agencies being more constrained legally in collecting content, this distinction is an artificial one foreign to the U.S. Constitution. The Fourth Amendment to the U.S. Constitution covers “searches and seizures,” which should cover both types of snooping, and requires probable cause that a crime has been committed and specific delineation of what is to be searched and seized: “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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The NSA evidently did obtain an order from the secret Foreign Intelligence Surveillance Act (FISA) court to acquire data on phone traffic of most Americans. But we should not be under the illusion that this court can correctly read even the text of the Constitution. Granting this order either means that the court stretched the “probable cause” requirement beyond all recognition—every American with a phone cannot really be legitimately suspected of being a terrorist or committing another crime—or did not use the standard at all, the more likely case but just as unconstitutional. A provision in the 2001 PATRIOT Act made it easier to obtain a court order for the government to get business records if they are considered merely relevant to a national security investigation. Yet the aforementioned Fourth Amendment makes no exception for national security matters, and the courts should have thrown out not only the request for the order but this section of the PATRIOT Act as unconstitutional for violating the more strict “probable cause” standard. The courts also should have ruled that collecting data on such a wide spectrum of Americans violated the Fourth Amendment’s nixing of general warrants—originally a reaction to British soldiers using overly broad search warrants to conduct fishing expeditions in colonial American homes. If there ever was a fishing expedition, sifting through the phone records of all Americans should qualify. These actions, however, probably would be asking too much of the clandestine FISA court, which already has shown its co-option by the intelligence agencies by denying only one search warrant in the face of almost 1,800 government requests. More generally, the judicial branch often cowers before the executive branch when the latter labels anything a “national security” matter.

Because the phone records collection program had been shrouded in secrecy, Senators Mark Udall (D-Colo.) and Ron Wyden (D-Ore.), who sit on the Senate Intelligence Committee, had been trying to obliquely warn the public that the phone records collection program was dangerous, and Udall has said that it produces little valuable information. Senator Rand Paul (R-Ky.) has perceptively noted that the government already can constitutionally spy on individual terror suspects using a warrant without the need to collect phone records for so many innocent Americans.

The Prism program of content analysis is also unconstitutional because it allows the government to get an order from the FISA court to conduct blanket surveillance of anyone “reasonably believed” to be outside the United States (yet the system can only predict the surveillance target’s foreignness with as little as 51% confidence) without specific individual warrants, even if the communications interception takes place in America. The program snoops into the content of the electronic data of a suspect’s contacts and then of the contacts’ contacts, thus potentially ensnaring a web of Americans. Again, the Fourth Amendment makes no exceptions for national security situations on its warrant and probable cause requirements.

Government officials and their surrogates in the media keep telling us that these programs are legal—that is, enshrined in law—and are overseen by all three branches of government: Congress, the executive branch, and the FISA court. That may be true, but laws can be unconstitutional, and these statutes even violate the text of the founding document. All three branches agreeing with and overseeing an unconstitutional law is the worst possible situation, because this fact is used to legitimize to the American people excessive government power.

Government officials have also claimed that several terrorist attacks have been thwarted, but they tend to conflate the two snooping programs. Prism may have done so, but Udall’s previously cited comment about the phone-records program is telling. In the most idiotic comment on the phone-records program, Senator Dianne Feinstein (D-Calif.), the totally co-opted chairperson of the Senate Intelligence Committee, insisted that the program was needed because any American could become a future terrorist. In today’s politically correct world, it is nice that Big Brother now has a Big Sister.

The comment about Prism resulting in the foiling of three terrorist plots is designed to stop debate in its tracks. But in a republic, both regarding terrorism and more mundane threats such as food or auto safety, we don’t live in a riskless society. Still, after Osama bin Laden has been killed and the main trunk of al-Qaeda decimated, terrorism now appears less of an existential threat to the country (and it wasn’t existential, even before these events). Even after 9/11, an American’s chance of being killed by terrorists is about the same as that of being killed by an asteroid and less than that of being struck down by lightning.

President Obama recently gave a speech seemingly shining a light on the end of the tunnel in the war on terrorism. Apparently, that didn’t apply to snooping on Americans in that war. As a candidate prior to becoming president, Obama argued that no tradeoff existed between security and America’s unique and sacred liberties; yet after these government spying programs were leaked, he contradicted his early stance and opined we couldn’t have 100% security and 100% liberty.

We can probably never have 100% of anything, but candidate Obama was correct about the false tradeoff between security and liberty. The U.S. government itself generates most of the anti-U.S. terrorism—with its interventionist foreign policy—and then rides to the rescue with excessive spending on defense and homeland security and the aforementioned over-the-top snooping programs and other restrictions on civil liberties. Yet U.S. foreign policy is supposed to defend the republic, not drive the train and erode republican government. Ever since World War II, the U.S. government has been letting the foreign policy tail wag the republic’s dog. To have a republic with limited government, we have to accept some risk, but that risk will actually decrease if we trim back the foreign policy tail. Thus, such a trimming would allow the curtailment of outrageous and unconstitutional snooping programs that undermine the founders’ republic.


Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.

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