I’ve seen a lot of chatter around the blogosphere about the NSA phone records program that goes like this: “Those who argue that it’s constitutional are in favor of it.” But the two do not necessarily go together.
I don’t usually quote Barack Obama approvingly, but he hit the proverbial nail on the head last Friday when he said of the NSA phone records program:
We’ve got congressional oversight and judicial oversight. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.
Well, we absolutely do have some problems here, because an increasing number of people do not trust those government institutions, and they have pretty good reasons for seeing it that way.
But that’s a separate issue from the question of whether NSA was “abiding by the Constitution” when it collected and stored the data if it limited access to it in the ways it says it did. And that’s a separate question from whether it did follow those limits. Which is in turn a separate question from whether, even if it did follow those limits and was abiding by the Constitution, the program is something we want, and how vulnerable to abuse it might be.
Now, you may think the Constitution is a relatively easy read. Absolutely clear, written in plain English for anyone to see and understand. And you may also think that the reason lawyers and judges and SCOTUS justices go on and on and on about it as though it’s so complex is because they have a political agenda, and/or like to twist things and make them seem obscure, and/or can’t see the forest for the trees.
But it’s really not all that simple, and the entire structure of the appeals court system culminating in the Supreme Court isn’t there just to enrich the coffers of lawyers.
Take something as concise as the Fourth Amendment. It reads:
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.
Short and sweet and oh so important, and written way back in a time when in order to seize stuff you had to physically go into a home and seize actual stuff (or actual people). Of course, there was a back story, too, about how and why the amendment was written and included in the Bill of Rights, and what the words in it meant at that time because of that history. And there’s also a sequel which includes many court decisions about how the amendment could and should be applied in the present day, when all sorts of methods unforeseen by the Founders have come along and given government new and creative ways to search and to seize.
Saying something is constitutional because it does not violate the Fourth Amendment is not the same as saying it’s not a bad practice, or that you like it, or that it shouldn’t be outlawed. Something can be bad, unlikable, and worthy of outlawing and still be completely constitutional, in which case the remedy for it would be to ban it, or to ban those parts of it that make it objectionable. Saying something is constitutional because it does not violate the Fourth Amendment is not the same as saying it’s not easily subject to abuse, overreach, and corruption, and therefore not potentially dangerous.
Which brings us to the fact that the NSA’s accessing phone call records (who, when, where) that are already the property of a phone company—invasive and dangerous though this might feel—is not unconstitutional, at least as the legal system has ruled so far. Of course, if the NSA rules setting up the program read that the agency could dip into content without a warrant as required by the Fourth Amendment, that would be different, and clearly unconstitutional. Or, if the agency was actually doing this even though the rules didn’t allow it, that would mean they were operating illegally. But at this point we’ve seen nothing to prove that either was the case.
Perhaps a test case on the NSA program could ultimately reach the Supreme Court and cause it to rule anew, and SCOTUS might reinterpret the Fourth Amendment in such a way as to declare the program unconstitutional even the way it’s written. Stranger things have happened. But understand what lawyer Andy McCarthy is saying when he writes, with characteristic clarity:
…[H]ow it is “clear” that a phone record, owned and possessed by a telephone service provider (not the customer), qualifies as the person, house, paper, or effect of the customer, such that the government’s acquisition of it violates the Fourth Amendment[?] The federal courts have consistently, emphatically rejected this implausible suggestion, holding that government’s collection of phone records does not even implicate the Fourth Amendment, much less violate it…
[T]he animating idea behind the original Fourth Amendment is protection of personal property. The Constitution was not deemed to be violated absent some form of government trespass…[E]ven this new Fourth Amendment [with its “reasonable expectation of privacy”] that progressives have erected on the remains of the original one has never protected third-party business records. That, in particular, includes “metadata” ”” customer telephone activity (not the content of conversations, but numbers dialed, time and duration of calls, etc.), records of which are maintained by service providers.
To give such third-party business records constitutional status…the judges [would have] to invent a newer, more expansive Fourth Amendment.
Simply put: content is protected, records are not.
[NOTE: Snowden has, of course, made a lot of other allegations about NSA than that they simply kept the phone log records. But so far he’s provided no proof of these claims. He has said, for example, that he was able to access anyone’s email content as long as he had a personal email address for him/her, which would certainly be a very clear violation of the Fourth Amendment. But is he telling the truth? Not according to experts, who say it’s impossible that he could have accomplished what he claims he did.
So the jury, as they say, is still out on that.
And please read this from Ace.]
[NOTE II: Part II of the post I wrote yesterday on distrust and security will be coming very soon, but not today.]