In response to the collective outrage that the National Security Agency collects records on every phone call made in the US every day, the Obama administration has declassified some details about the program in an attempt to explain it and douse the flames. In short, the program is approved by the secret FISA court, reviewed periodically for abuse, and does not actually use the data except when specific threats or information arise. While this might make them, and even some outraged citizens, feel better, it does not make it any less unconstitutional.
The Fourth Amendment states:
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 administration argues that since they do not actually look at or use the data without probable cause, the program is valid. They are saying that they have probable cause when they do a search on the data. The problem is that they don’t have probable cause when they seize the data. There cannot possibly be probable cause to seize phone records for the entire country. This is by definition unreasonable, and thus prohibited by the Constitution that the congressmen who created the legal authority for, bureaucrats who administer, and judges who sign off on this program swore to protect and uphold.
The full statement by James Clapper, Director of National Intelligence, has one statement that I think deserves extra scrutiny.
The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism-related communications.
Quite simply, too bad. I’m sure there are lots of unconstitutional things the government could do to keep us safe. They still aren’t and shouldn’t ever be allowed to do them.
The Chairman of the House Intelligence Committee, a former FBI agent, Mike Rodgers, went even further today and said that we have already thwarted a domestic terrorist attack because of this program. Again, too bad. We could thwart even more terrorist attacks if we quartered soldiers in citizens’ homes or conducted military operations in American cities, but that doesn’t mean we should. Part of the byproduct of living in a free republic is the risk of occasional harm. We formed the federal government to protect our liberties from infringement by others within a framework of laws, not to prevent that harm by any means necessary.