"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."
Section 702 of the Foreign
Intelligence Surveillance Act Amendments of 2008 (FAA) authorizes the
government to seize and search the international communications of American
citizens without probable cause or warrants in violation of the Fourth
Amendment. Some thought that it should not be extended beyond December 31, 2017, its expiration date, unless Congress cured its constitutional infirmity.
It was not.
Members of Congress are bound by
oath or affirmation to uphold and defend the Constitution period; no commas,
semicolons, or question marks. The murderous abominations of the 9/11 terror
attacks changed nothing on that score.
The Supreme Court admonished in Ex
Parte Milligan:
The Constitution of the United
States is a law for rulers and people, equally in war and in peace, and covers
with the shield of its protection all classes of men, at all times and under
all circumstances. No doctrine involving more pernicious consequences was ever
invented by the wit of man than that any of its provisions can be suspended
during any of the great exigencies of government. Such a doctrine leads
directly to anarchy or despotism…
As a cornerstone of our
liberty-centered constitutional universe, the Fourth Amendment makes citizen
privacy the rule and government encroachments the exception. Warrants issued by
neutral magistrates based upon probable cause with particularized evidence that
crime is afoot are ordinarily required to justify government invasions of
privacy.
In the narrow circumstances that
excuse warrants, a government search or seizure must still satisfy a standard
of reasonableness.
The makers of our
Constitution…sought to protect Americans in their beliefs, their thoughts,
their emotions and their sensations. They conferred, as against the Government,
the right to be let alone — the most comprehensive of rights, and the right
most valued by civilized men. To protect that right, every unjustifiable
intrusion by the Government upon the privacy of the individual, whatever the
means employed, must be deemed a violation of the Fourth Amendment.
The American Revolution was ignited
by opposition to hated British Writs of Assistance, general search warrants
that empowered every petty colonial official to rummage through homes or
businesses in search of smuggled goods.
An address by William Pitt the Elder to
the British Parliament thundered throughout the colonies, and epitomized the
spirit of the Amendment:
The
poorest man may in his cottage bid defiance to all the forces of the Crown. It
may be frail, its roof may shake; the wind may blow through it; the storms may
enter, the rain may enter, —but the King of England cannot enter; all his forces
dare not cross the threshold of the ruined tenement.
Speaking through Justice Antonin
Scalia, the Supreme Court decreed in Kyllo v. United States that the
Fourth Amendment today should be interpreted should be adapted to secure “that
degree of privacy against government that existed when the Fourth Amendment was
adopted” notwithstanding staggering advances in technology.
At that time,
government encroachments on privacy were minimal. Federal criminal laws were
few. Investigations were minimal. And no intelligence community existed to
snoop on Americans to gather foreign intelligence.
Section 702 authorizes invasions of
citizen privacy orders of magnitude beyond the degree of privacy that existed
when the Fourth Amendment was ratified in 1791. It empowers the National
Security Agency singly or in conjunction with sister intelligence agencies to
intercept, store and search the international communications of U.S. persons
with a targeted communicant reasonably thought to be located outside the United
States and in possession of foreign intelligence information.
The Foreign Intelligence
Surveillance Court (FISC) does not review each discrete NSA interception to
insure the target is a foreigner outside the United States or that the
communications intercepted relate to foreign intelligence, including
international terrorism.
Instead, the FISC simply approves annually
surveillance procedures that the Attorney General and Director of National
Intelligence certify are calculated to target only foreigners located abroad
for foreign intelligence purposes.
The latter is broadly defined to include any
information that relates to the foreign affairs of the United States.
The government has employed section
702 to collect more than 250 million internet transactions annually as of 2011,
which includes communications between two foreigners as well as those involving
a U.S. person.
According to an affidavit of Bill Binney, former high-level NSA
official and perhaps the foremost expert in the world on electronic
surveillance:
When I was at the NSA, each analyst
was theoretically required to review 40,000 to 50,000 questionable records each
day. The analyst gets overwhelmed, and the actual known targets — from the
metadata analysis — get ignored…The NSA cannot identify future terrorism
because 99.9999% of what it collects and analyzes is foreseeably irrelevant.
The intelligence community is
clueless as to how many of the 250 million annual internet warrantless
interceptions under section 702 involve the international communications of
U.S. persons.
But the Fourth Amendment vice does not cease after the seizures.
The communications are typically stored for at least five years and searched
without warrants or probable cause for either to discover foreign intelligence
or evidence of crime— a second Fourth Amendment transgression.
Supreme Court decisions establish
that the government must obtain a warrant that satisfies the Fourth Amendment
to intercept or search the contents of communications of U.S. persons for
either criminal justice or domestic security purposes. The high court has not
approved an exception when the communications are seized and searched pursuant
to section 702 for law enforcement or foreign intelligence purposes.
Title III wiretap orders under the
Omnibus Crime Control Act are vastly less intrusive on privacy. They require a
warrant that satisfies the Fourth Amendment by specifying the phone line to be
tapped, the conversations to be seized, and the crime under investigation.
Moreover,
reasonable measures must be taken by the government to avoid recording
“innocent” conversations. And the targets of the warrants and their
communicants are typically notified of the wiretap within 90 days of its
termination to enable them to challenge its legality.
In contrast, surveillance under
section 702 does not require a warrant. It does not require probable cause. It
does not require suspicion of criminality. It is not confined to communications
involving only foreign powers or their agents. There is no mechanism for
monitoring the seizure of the communications to exclude those portions
irrelevant to foreign intelligence. And the communicants whose conversations
are intercepted, stored, and searched are not notified of the invasions of
privacy unless they are lead to a criminal prosecution.
In the vast majority of cases, U.S.
persons will never learn that the privacy of their international communications
had been compromised.
Even if no warrant were required
under the Fourth Amendment for the seizure, storage and search of the
international communications of U.S. persons under section 702, it would still
fail the reasonableness test.
While the government interest in
national security is of the highest order, Section 702 sweeps far more broadly
to include anything relevant to the foreign policy of the United States, for
example, the emission of greenhouse gases or free trade agreements.
It also
authorizes searches of citizen communications for crimes unrelated to national
security and not based on probable cause. And as Bill Binney’s affidavit
underscored, the stupendous volume of communications capture by section 702
cripples the NSA’s ability to separate the wheat from the chaff.
Proponents of extending Section 702
argue that government officials have refrained from using its alarming powers
to oppress U.S. persons. But as Thomas Jefferson advised, “In questions of
power, then, let no more be heard of confidence in man, but bind him down from
mischief by the chains of the Constitution.”
Moreover, Justice Brandeis correctly taught that, “every
unjustifiable intrusion by the Government upon the privacy of the individual,
whatever the means employed, must be deemed a violation of the Fourth
Amendment.”
In sum, Section 702 should not be
extended unless it requires a warrant to seize or search international
communications of U.S. persons based upon probable cause to believe they
contain evidence of international terrorism and with particularity describe the
means of seizing or searching the communications. Further, U.S. persons should
be notified within 90 days of any interception or search.
The Fourth Amendment is too
important to be left to the intelligence community.
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