[Update: here's the report. More later. ]
As the White House moves to speed up its response to overreach by the NSA, it is worth reviewing exactly what the issue is. I write a lot on this blog about the First Amendment, because press freedom is one of my big themes. But press freedom is all of a piece with our other freedoms — freedoms which, by the way, we have as citizens. We don’t get them from the government; we don’t even get them from the Constitution. (We assert or articulate them in the Constitution, but that’s all). We have rights because we were endowed with them by our Creator, or because they are our birthright as free citizens of a free country.
One part of the Constitution that we need to keep in mind during the revelations about the NSA spying is the Fourth Amendment. Here is the text (as maintained by the National Archives):
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.
At a minimum, that begins to define my relationship with the government by saying, Hands off. I have the right to be secure (not just to feel secure, but to actually BE secure) in my body, my house, and all my paper and electronic records. We start, then, with the premise that the government should LEAVE ME ALONE. If the need should arise to search me, or my place, or my stuff, then the government must first go to court and secure a warrant from a judge. To get such a warrant, some government agent must swear that there is “probable cause” to believe that it would be fruitful to search a particular person, place, or thing.
In my view, that single sentence should have kept me (and the rest of us) secure from surveillance and record-keeping about my activities, movements, affiliations, and all the rest. Instead, the Bush and Obama administrations embarked on a peacetime program of data-gathering about every U.S. citizen without so much as a by-your-leave — no warrants, no subpoena, no notice. If the president and Congress think this is a great idea, then they need to come to us, the people, the sovereign rulers of this country, and ASK US. They need to say, “Hey, would it be OK with you if we collect data about your every phone call and email and keep it indefinitely?And we won’t tell you when it starts or ends, and the legal rationale for it will be a secret, and we will get approval from a secret court that only hears from the government. Would that be OK with you?”
I would say, NO. I would say, LEAVE ME ALONE. I would say, DON’T SPY ON ME.
Thanks again to Judge Leon for his recent decision knocking the legal legs out from under the government’s position. And here is a fine analysis of that ruling by TNR’s Jeffrey Rosen.