After repeatedly, and correctly, proclaiming that phone and e-mail surveillance by the NSA is both necessary and constitutional, the president has succumbed to left and libertarian pressure: He has proposed installation in NSA of “a full-time civil-liberties and privacy officer” and other mechanisms in “the transparency community.” A “transparency community” within an “intelligence community” is an unworkable oxymoron. Any “civil-liberties and privacy” officer installed in NSA would, to show that he is performing, have to impede intelligence activities — a burden we do not need in our already difficult war on terrorism.
Our Constitution’s authors and proponents warned against bowing to the sort of demagoguery that lies behind attacks on the NSA program as an unconstitutional invasion of our rights. The Federalist Papers — the bible of the Constitution’s meaning — warn at the outset (No. 1) of those who invoke supposed rights of the people to oppose the government’s efforts to defeat an enemy seeking to destroy us: “A dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people, than under the forbidding appearance of zeal for the firmness and efficiency of government.”
Continuing, “Publius” (probably Alexander Hamilton) explains why: “History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing Demagogues and ending Tyrants.”
This warning is repeated: The Government’s “powers” for “the common defense . . . ought to exist without limitation: because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them” (No. 23). Again, our Founding Fathers opposed “every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security” (No. 36).
Abraham Lincoln reiterated that view when attacked for violating constitutional rights by suspending habeas corpus: “Would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law would tend to preserve it?”
Our Founders’ and Lincoln’s teaching is even stronger when applied to the NSA: Its surveillance program violates no constitutional provision. It examines only the addressee and sender on e-mails, and telephone numbers called and called from. The Supreme Court has long held that such information is not privacy-protected by the Fourth Amendment. As a former federal prosecutor, I often obtained such evidence, through law-enforcement tools known as pen registers and mail covers.
Consider this real-life event: Over weeks, twelve jewelry stores in different locations are robbed, apparently by one group of unidentified robbers. Police obtain from telephone companies cell-phone records to locate any phone(s) used within 30 minutes’ distance of each robbery. Analyzing the data, they identify robbery suspects. No claim of “violation” of constitutional rights would void the suspects’ conviction.
No reason to treat better those attempting to destroy this country. That enemy exists, the evidence for it consisting of 3,000 lives lost on 9/11, the Boston Marathon massacre, and even the unsuccessful terrorist attacks on our airplanes and at Times Square. The NSA program is logical. Our intelligence people know phone numbers or area codes used by terrorists in various world locations. Wouldn’t you want our intelligence services to know who in the United States called those numbers and area codes and to examine the information to determine whether those calls were innocent or not? I certainly would. If this program had been applied to identify the Boston bombers, that attack could have been prevented.
Apparently recognizing that their constitutional argument on the NSA program itself is meritless, many opponents insist on a slippery slope of imagined horribles. They assert that, while using sender and recipient identities for security purposes is lawful, possessing the content of the messages would enable that to be used too, unconstitutionally — despite NSA’s denial that it has been done, and despite the absence of contrary evidence. That imagined horrible is akin to depriving all soldiers and police officers of their guns because it is conceivable that some power-hungry president or governor could, in the future, employ armed soldiers or police to seize autocratic power. Imagined horribles do not supersede the reality of terrorists seeking to destroy us.
Obama’s proposal makes as much sense as “a civil-liberties and privacy officer” shadowing an army general fighting the enemy on a battlefield. Who knows? With this administration, that may be next.
— Gerald Walpin served as inspector general under President George W. Bush and is the author of The Supreme Court vs. the Constitution.