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The NSA’s Surveillance: No Clear Constitutional Violations



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The latest Obama administration controversy will not prove as bad as it first seems. Apparently, the administration has been asking Verizon for all of the “metadata” on all of its customers’ calling — the phone numbers called and received, but not the content of the calls themselves.

In the days after the September 11, 2001 attacks, the Bush administration’s Justice Department (in which I served) approved a program that may have relied on similar technology, but was far narrower in scope. Both programs, however, seek to use communications coming into the United States from a known terrorist abroad to identify an al-Qaeda network within the country.

The program does not represent a violation of the Constitution because the Fourth Amendment does not protect dialed phone numbers, in contrast to the content of the communications, because individuals lose privacy over those numbers when they are given to the phone company. The Constitution protects the content of the communications, whether it be a phone call, e-mail, or old-fashioned letter. And Congress approved a change to the FISA statute to allow such collection, and a court of federal judges approved it. And as commander-in-chief, the president has the wartime authority to find and intercept enemy communications, known as signals intelligence. Analyzing such metadata — what is sometimes called data mining — is perhaps the most effective way to find terrorist cells in the U.S. and stop future attacks because the Obama administration has dropped our best methods for producing intelligence (the detention and interrogation of al-Qaeda leaders).

The revelation of broad e-mail surveillance is more troubling, but it is because we don’t know the program’s scope. If the program only intercepts the content of e-mails for foreigners abroad, as is being reported, there is no constitutional violation. As the Supreme Court has made clear, the Fourth Amendment does not protect the communications of non-U.S. persons that take place abroad. In fact, the Justices reached that conclusion because they observed that it would be impossible for the U.S. to fight a war against a foreign enemy if limited by the Fourth Amendment. Allowing the government to intercept foreign, potentially enemy signals intelligence abroad without a warrant recognizes the reality of war, as opposed to the precise targeting of communications that would apply if domestic law enforcement were the framework.

We shouldn’t expect any measured response to the Obama administration’s program from the usual libertarian critics, should we? When news broke in 2006 that the National Security Agency had been collecting phone-call metadata, Senate Democrats called for President Bush’s censure or perhaps impeachment, New York Times and Washington Post editorial writers attacked Bush as a violator of the Constitution, academic leaders such as Yale law-school dean Harold Koh called it “quite shocking” and without judicial approval, and Senator Patrick Leahy had a hearing where he yelled “are you telling me that tens of millions of Americans are involved with al-Qaeda?”

I suspect that we will hear nary a peep from these sources about Obama, proving yet again that the criticism of the Bush anti-terrorism programs was motivated by partisan politics, not enduring principle. But, unfortunately, the program will be questioned because of the Obama administration’s serious mistakes on its IRS investigations into conservative groups and Justice Department surveillance of journalists to stop leaks. The Obama administration’s destruction of the American people’s trust in their government’s ability to run its core tax and law-enforcement functions will harm our government’s ability to carry out its duty to protect the nation.

For those who want to dive deeper, I published a law-journal article in 2007 in George Mason Law Review on the constitutionality of such measures. Sorry for all the footnotes, but there are a lot less than in the usual academic article — promise.



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