By Dr. Harold Pease
Recent revelations on either the National Securities Administration’s seven-year accumulation of your phone calls and email massages, or, the 35 years of FISA court’s special surveillance requests on 34,000 citizens, has caused many to look to the Constitution for protection from their own government. Is government spying on its own citizens constitutional?
In the Constitution the words national security are not used but common defense is mentioned twice, first in the Preamble, which is but a statement of intent and is not generally seen as usable for codification of law. Article I, Section 8 houses the four powers of congress: to tax, to pay the debts, to provide for the general welfare and to provide for the common defense. Sections 2-9 are the qualifiers on what is meant by common defense so as to limit government’s inclination to define everything as common defense, as it now has national security. All the war powers belong to congress alone. Only after a war is declared does the president have commander and chief responsibilities over the military. Unfortunately for big government advocates, collecting and storing data on its citizens is not cited or even alluded to.
Fortunately for us this behavior is specifically forbidden in the Fourth Amendment which 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.” The amendment was specifically designed to prevent government spying.
The right of the people to be secure in their persons, houses, papers against unreasonable searches and seizures shall not be violated is the strongest possible language conceivable. In their day the British government used what was called “a general search warrant” which allowed their agents to harass the people thought to be doing, or saying, something disapproved by the government. No such flexible interpretation was allowed in our government. In our day, computers are your papers. Simply confiscating them and storing them, perhaps indefinitely, should be no different than the police walking into your home and taking any letters, or messages, that you have received, or are about to send, from you and housing them in police headquarters in case they should need them in a later day. Moreover, unreasonable was not to be decided by the police.
As a first principle your house and papers are off-limits to the government. All searches are unreasonable without probable cause that you are doing something harmful to others. Probable cause must be decided independently from the police unless you are in the act of doing something unlawful and immediate police response is necessary. Elected judges exist for assessing probable cause. Should they get too cozy with the police there exist other checks to keep them restrained as, for example, their defeat in the next election. As initially interpreted there were to be few federal laws hence few unelected federal justices. This was to be a state, county, or city matter. Rousted out of a good sleep in the middle of the night, judges were not likely to be too happy having to assess frivolous charges.
There exists no constitutional authority for a blanket extraction of all your electronic data. Judges swear an oath to preserve the Constitution. They are not to perform with a private view outside that document. Notice also the specific restrictive phraseology with respect to this power; they are to particularly describe “the place to be searched, and the persons or things to be seized”—evidence that something unlawful happened. There is no authority for a “fishing expedition.” NSA spying on its own citizens without a search warrant is clearly unconstitutional.
So what of the government’s secret FISA court where over the last 35 years special federal (unelected) judges have only turned down 11 spying requests out of 34,000 made. Isn’t that based upon probable cause? Not necessarily! The request is more likely made because they lack probable cause and wish to find it by accessing your private records or conversations. We might think more positively toward the existence of the secret FISA court were it not for three big negatives: judges are not elected and accountable to the people, the court operates behind an impenetrable double-door in a vault-like room in total secrecy, and the rules empowering the spying activities are different than those allowed other judges in other federal courts. In any other court, for an ordinary surveillance warrant, a judge must find that a suspect “is” involved in a crime. Under FISA the standard is lowered to “may be involved.” An ordinary wiretap runs 90 days. FISA taps can last a year. A suspect under ordinary criminal surveillance “must be told” about it eventually but not under FISA. And finally, if prosecuted, a defendant is never allowed to see the top-secret warrant applications used against him, which is a probable violation of the Six Amendment as well.
Moreover, the FISA court violates the Fifth Amendment in that the accused is, in a very real sense, forced to be a witness against himself—perhaps the only witness. It is his papers, emails, and phone conversations that convict him.
No federal government! You must tear down your $2 billion NSA Bluffdale, Utah spy facility capable of storing a Yottabyte of our private information against our will. You must do likewise to your Oak Ridge plant that houses the fastest computer in the world designed to analyze our private data for your own purposes; and the latest revelation—to share that information with seven sister federal agencies. Spying on your own people is a blatant violation of the Constitution. You may argue that you are only protecting us from bad people out there but who protects us from you? Fortunately the Constitution does if only enough will begin to use it in their voting practices and those we elect will honor their pledge to protect it, and us, from you.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.