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The Independent Institute
Commentary

NSA Spying Scandal May Indicate U.S. Checks and Balances System Is Broken


The founders of the United States envisioned a federal government that was constrained by a written Constitution, which further diluted power within that government into four competing branches. Those branches were the two houses of Congress, which were clearly supposed to be dominant in the federal sphere, and the executive and the judiciary. Unfortunately, over the more than two-and-a-third centuries of U.S. history, that’s not how it’s turned out. And the NSA spying scandal, more than anything else, shows that the founders’ original system has gone badly off the rails.

The founders’ idea of constraining government by a written Constitution and a system of checks and balances among the disparate branches was a good one. The system has probably slowed government encroachment on individual rights more than any other governmental system in the world. Yet constitutions and checks and balances are only parchment barriers to tyranny if the underlying political culture becomes broken. And the NSA spying scandal seems to indicate that it may have become so.

We have moved from the George W. Bush administration, which conducted an illegal and unconstitutional program of NSA spying on Americans, to the Obama administration, which is conducting a legal but unconstitutional NSA snooping effort. This change may seem like at least improvement, but it’s not.

When Congress discovered that the Bush administration was flouting the Foreign Intelligence Surveillance (FISA) Court and thereby not getting warrants to spy on Americans, it was outraged. In fact, Congress was so outraged that it widened that administration’s ability under law to do warrantless wiretapping!

In the most recent iteration of the NSA scandal, the NSA, in 2010, just decided to lift restrictions on itself to nose around into phone call and e-mail logs—not only would they track such patterns on foreigners but on Americans, too. Yet the agency loosened the reins on itself because in 1979, the Supreme Court had ruled that Americans should have no expectation of privacy surrounding what phone numbers they called.

Say what? The Ninth Amendment in the Constitution’s Bill of Rights clearly states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This indicates that just because the Constitution doesn’t say that people have the right to expect privacy on whom they call, the benefit of the doubt should be given to presuming it to be an unstated right rather than presuming that the supposedly restrained government in a republic has a right to snoop therein. Conservatives, despite their rhetorical love affair of limited government, often decry the “artificial creation” of privacy rights vis-à-vis encroaching government power, but the Ninth Amendment seems to indicate that the presumption should be that they are already there. Also, the fact that it took the NSA 31 years after the Supreme Court ruling to take advantage of its ruling, must mean that some subtle public norm against such spying must have waned.

Yet this is not the first time the Supreme Court has taken away citizens rights in the face government intrusion, especially in “national security” cases. In fact, in the national security arena, the courts routinely defer to executive or legislative violations of cherished individual rights.

The larger problem here is that all three branches of the federal government often approve of unconstitutional violations of American citizens’ rights. For example, the Fourth Amendment in the Constitution’s Bill of Rights requires “probable cause” that a crime has been committed for the government to have the authority to search and seize a citizen’s property. In addition, the amendment makes no exemption even for national security. Yet, the courts have allowed Congress to pass laws, and the executive branch to executive them, which have a lower standard.

When it was discovered that the NSA was unconstitutionally collecting the phone calls of all Americans, all of Washington, including the Obama administration and members of both parties from the congressional intelligence committees, rushed to defend the practice. And the FISA court—which, as a secret judicial body, should have no place in a republic—merely rubber stamps such practices. The couple of instances in which that powerless court has reprimanded the NSA should not be taken as the constitutional push back that the founders envisioned.

Policemen should not police themselves, nor should lawyers or doctors or any other occupations—for obvious reasons of bias for the profession against the citizen. Yet our governmental system allows the federal branches to monitor and police each other. Predictably, federal courts often rule in favor of the federal government at the expense of the citizen. Congress regularly allows, and even applauds, executive branch breaches of the Constitution and vice versa. For example, President George W. Bush not only didn’t veto government warrantless snooping enshrined by Congress in the flagrantly unconstitutional PATRIOT Act, he demanded that the law be passed.

What is the citizen to do if all three branches of the federal government lend a veneer of legal and legitimacy to violations of individual constitutional rights? In the old days, the states offered some push back to such tyranny but not so much anymore. The entire system might need to be reformed, but that is unlikely.


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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