NSA defies constitutional limits

Since the Al Qaeda attacks on the United States on September 11, 2001, the country has been struggling with protecting individual liberties while combating terrorism.

Most people have supported tougher anti-terrorism moves, even if that meant some invasion of their privacy.

But one purpose of protecting against terrorists is to allow the American system of personal freedom to survive, so new measures should not go so far as to endanger the very rights they are supposed to protect.

That principle is proving difficult to follow.

Edward Snowden, the American intelligence consultant now in Russia who has leaked secret data, revealed the National Security Agency was collecting huge amounts of information about Americans.

Last week, a U.S. District Court judge in Washington, D.C. ruled on a massive NSA data collection scheme, raising the issues of national security and personal liberty to a new level.

Judge Richard Leon ruled that NSA mass collection of data on all telephone calls made in the United States violates the Constitution’s Fourth Amendment prohibition of “unreasonable searches.”

He is a conservative appointed by President George W. Bush.  In his decision, like many of his conservative colleagues, he went back to the origins of the Constitution itself.

The Constitution was the result of a compromise between those who wanted a strong national government and others who worried that such a government would endanger individual rights.

The deal was that the Constitution would be adopted but immediately amended by the Bill of Rights, intended to limit the ability of the government to override personal liberties.

The question for Leon was to determine if the collection of data on just about everybody, almost none of whom is a terrorist, violated the constitutional deal by tilting too much in favor of the government.

There are supposed to be limits on how far the NSA can go. But one federal judge had already found “systematic non-compliance” with those limits. 

Another judge found the government had three times made “a substantial misrepresentation regarding the scope of a major collection program.”  In other words, it lied.

On a recent “60 Minutes” broadcast, top NSA officials acted as though they were pure and never mentioned the previous court rebukes.

The NSA stresses that it does not collect names or the content of calls.  But, once it has a number, it would have little trouble, without needing a court order, finding out the person listed for the line.

The specific issue before the judge was whether collecting data about virtually everybody all the time is an “unreasonable” search.

Courts have found that it is not unreasonable to tap a single person’s phone or track their travels for a limit period.  A recent Supreme Court decision said the government tracking somebody for 30 days was not reasonable.

In defending the NSA, the government relied on a 30 year-old case that allowed the police to tap the phone of a single person for less than two weeks to see if he was making threatening calls. The court had said then that the man had no right to expect that his phone records were private.

Leon rejected the government position, saying that collecting one person’s records for a few days, based on real suspicion, was not the same as collecting everybody’s records for five years with no suspicion.

The way Congress has authorized surveillance allows the NSA to act after getting approval from a secret court in which neither the phone companies nor their customers have a say.

Of course, the NSA should not tip off people under suspicion.  But it also should avoid fishing expeditions.  That means there has to be better control of NSA and fewer one-sided court hearings.

Last week, a presidential panel recommended reining in the NSA.  Like the judge, it highlighted the protection the Fourth Amendment is supposed to give Americans.

It proposed that phone companies and internet providers could continue to collect usage data, but that the NSA could only get access it under a specific court order.

It also said that the secret intelligence court system should include a “Public Interest Advocate,” responsible for representing Americans whose data the NSA wanted.  Security could be maintained, because the individuals themselves would still be excluded.

After both the court decision and the panel’s recommendations, President Obama, once opposed to mass surveillance, tried to block further judicial review of the NSA.

James Madison, the principal drafter of the Constitution, worried about a powerful government abridging “freedom of the people.” Judge Leon wrote Madison “would be aghast” at what’s going on now.