The Spies Who Ruin Us

In an effort to draw attention away from the intelligence failures that permitted the attacks of 9/11 and create the impression that it was doing something — anything — to avoid a repeat, the federal government tampered seriously with freedoms expressly guaranteed in the Constitution. Its principal target was the right to privacy, which is protected in the Fourth Amendment.

At President George W. Bush’s urging, Congress passed the Patriot Act in October 2001. This 315-page statute passed the House of Representatives with no debate, and there was very limited debate in the Senate. I have asked many members of Congress over the years whether they read this bill before they voted upon it, and I have yet to find a member who did. In the House, that would have been impossible; the bill was made available to representatives only 15 minutes prior to their vote.

Nevertheless, Section 702 of the Foreign Intelligence Surveillance Act and an October 2001 executive order by President Bush are still valid, and both bypass the Constitution and continue to permit mass collection of bulk data. Section 702 permits warrantless surveillance on Americans who speak with foreigners, and the NSA has persuaded the FISA court to issue warrants to intercept the calls of the folks to whom those Americans speak, to the sixth degree. That alone encompasses everyone in the United States.

The Bush executive order was given to all military intelligence agencies — of which the NSA is but one. It instructed the military to intercept the telephone calls of anyone in America it wishes, without seeking any warrants.

Does all this unconstitutional spying — whether pursuant to the Patriot Act, the USA Freedom Act or an old presidential executive order — keep us safe? It certainly does not keep our liberties safe. It produces too much material for the government to evaluate. The recent Paris killers communicated with one another using ordinary cellphones and emails. Yet the French government, whose legal authority to spy is broader than our government’s, missed them. And the NSA, which spies on the French government, missed them.

The Fourth Amendment has numerous virtues, but foremost among them is a double-sided coin. One side is the requirement of individualized probable cause. When followed, that prevents the government from using general warrants (search wherever you want, and seize whatever you find), the hallmark of totalitarian governments. By confining the government’s authority to search only to those cases about which it has suspicion, the other side of that coin forces the government to focus on the bad guys.

When it does that, the government will be far likelier to stop them than when it gathers all it can about everyone.

Reprinted with the author’s permission.

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