The Director of National Intelligence admitted last Friday that the National Security Agency (NSA) has violated the Constitution’s prohibition of unreasonable searches and seizures.
A letter released by his office late last Friday says that:
on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
“One occasion” isn’t talking about a single wiretapped phone conversation, by the way. The New York Times noted back in 2009 that:
The N.S.A. is believed to have gone beyond legal boundaries designed to protect Americans in about 8 to 10 separate court orders issued by the Foreign Intelligence Surveillance Court, according to three intelligence officials who spoke anonymously because disclosing such information is illegal. Because each court order could single out hundreds or even thousands of phone numbers or e-mail addresses, the number of individual communications that were improperly collected could number in the millions, officials said.
In November, 2001, the National Security Agency (NSA) began illegal, warrantless wiretaps of Americans’ phone calls and emails. In 2008, Congress amended the Foreign Intelligence Surveillance Act (FISA) to approve the warrantless wiretaps.
But there’s still that pesky old Fourth Amendment prohibition of warrantless searches.
According to the ACLU, the NSA currently intercepts and stores 1.7 billion of our emails, phone conversations, texts and other electronic communications.
As a candidate, Barack Obama said FISA was flawed. He promised to push to amend it if elected. As President, his Administration has held passage and extension of FISA a top priority.
Sen. Ron Wyden (D-OR) has been saying for months that the NSA is spying on us in ways that would alarm us, if we but knew. But he can’t tell us any more, he says, because the details are all classified.
The Cato Institute’s Julian Sanchez specializes in the intersection of privacy, technology and politics. His best guess as to what’s happening? The NSA is collecting and saving vast amounts of private data. But they’re postponing questions about whether or not it’s constitutional until they want to search their database.
Sanchez told The Atlantic recently:
This is a huge departure from what has traditionally been understood to be constitutionally permitted. We do not normally allow the government to indiscriminately make copies of everyone’s private correspondence, so long as they promise not to read it without a warrant: The copying itself is supposed to require a warrant, except in extraordinary circumstances. It appears almost certain that a very different rule is in effect now, at least for the NSA.
It cannot be overemphasized how dangerous such a change would be. Traditionally, a citizen’s right to private communication was either respected or violated at the time it occurred: Your rights would be violated in realtime [sic], or not at all, and even in the lawless era of J. Edgar Hoover, only so many citizens could be spied on at once. Under this new regime, the threat to our rights is perpetual. Even if this administration and the next are scrupulous about respecting civil liberties, even if every man and woman currently employed by the NSA is noble and pure of heart, the conversation you have today may well be there for the use or misuse of whoever holds power in ten years, or fifteen, or twenty. Will the incumbent president in 2032 resist the temptation to hunt for dirt in online chats from his opponent’s college years–showing greater restraint than so many past presidents? One must hope so–but better to design the rules of a free society so that such leaps of faith aren’t required.
On his first day in office, Pres. Obama promised “a new standard of openness.” Now we know–because they’ve told us!–that the feds are violating the Constitution. We just don’t know how, because they’re hiding behind the national security Cloak of Invisibility.
Here’s where the rubber meets the road, Mr. President. It’s time to honor Sen. Wyden’s requests. It’s time to shine light on the NSA’s warrantless wiretaps of American citizens. It’s way past time for that new standard of openness.