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The Independent Institute
Commentary

Reforms of Domestic Government Surveillance


In the National Security Agency (NSA) domestic snooping scandal, at least two major issues exist: 1) warrantless government “traffic” analysis of patterns of potentially all Americans’ phone calls, from which new technology allows authorities to assemble a fairy good picture of innocent peoples’ lives; and 2) the secret Foreign Intelligence Surveillance (FISA) Court that has been a rubber stamp for government warrants to spy on American citizens and permanent residents. Many lawyers, and even former judges on the secret court, have come up with laudable, but insufficient, ways to fix the obviously broken system. However, simple solutions are best: Repeal Section 215 of the PATRIOT Act, which has allowed government collection and analysis of the phone records of ordinary Americans, and abolish the FISA Court entirely.

Congressman Justin Amash (R-MI) has proposed a solution to the first issue. Congressman Amash has proposed, with bipartisan support, an amendment to the 2014 defense appropriation bill that would end the authority for the blanket collection of records under the PATRIOT Act. His proposal prohibits the NSA and other agencies from using Section 215 of the PATRIOT Act to collect records, including telephone call traffic, that pertain to persons who are not subject to an investigation under Section 215 of the act.

Traffic analysis is a government search and thus falls under the Fourth Amendment’s requirement that any search warrant must be specific concerning the place to be searched and the persons or things to be seized (the phone records of more than 300 million Americans hardly qualify) and must be generated by probable cause (all Americans are unlikely to be terrorists). The Constitution provides no exceptions for this fundamental right—which is vital to avoiding the creation of a surveillance or police state—including for “national security.” Section 215 of the PATRIOT Act does not use the probable cause standard. Thus, the government’s bulk traffic analysis of Americans phone records clearly violates the text of the Constitution.

Also, at the nation’s founding, the term “probable cause” meant that a crime had been or would likely be committed. In contrast, the Foreign Intelligence Service Act, which set up the FISA Court, requires the government only to have probable cause that a surveillance target is a member of a foreign terrorist group or a foreign government or entity in order to intercept the phone and electronic communications of American citizens and permanent residents. The government doesn’t need to measure up to the higher constitutional standard that the target is suspected of having committed a crime.

Writing in the New York Times, James G. Carr, a federal judge who served on the FISA Court, provides some illumination on why the court has essentially been a rubber stamp for the government in obtaining search warrants. He argues that the problem is primarily not spineless judges who will not stand up to the government (although this seems to be a problem in general with the judicial branch when the executive branch invokes the term “national security”), but is the lower standard of probable cause to obtain a search warrant. Even if true, however, this lower standard enshrined in the Foreign Intelligence Service Act, and the FISA Court’s use of it, to approve search warrants on Americans is clearly acting outside the U.S. Constitution.

In the wake of the NSA spying scandal, proposals to reform the court have included publishing declassified summaries of all its rulings and the creation of a public advocate to argue against the government’s filings with the court and to appeal FISA court rulings (now only the government can appeal).

These proposals to increase the court’s transparency would be an improvement on the current Orwellian situation, but a better solution would be to get rid of the Orwellian situation. There is no place in a constitutional republic for a secret, parallel system of justice with lower standards—as noted earlier, the US Constitution provides no Fourth Amendment exception for national security.

Thus, both the FISA Court and the Section 215 of the PATRIOT Act (actually the entire PATRIOT Act) need to be neutered. Even without draconian measures passed in the post-9/11 hysteria, terrorism is already a crime—and a very infrequent one at that—which can be dealt with by restricting law enforcement, and judicial oversight of it, to traditionally open methods, processes, and institutions.


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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