December 18, 2013
Earlier this week US District Judge Richard Leon ruled in Klayman v. Obama, a case pertaining to the collection by the NSA of what is known as metadata of phone calls in side the United States, that the NSA operation violated privacy rights of Americans. Leon stated in his ruling that "such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment." This ruling is going to progress through the court system for sure, and the findings of this ruling will likely be overturned because this case is not necessarily about the Fourth Amendment.
For starters, the Supreme Court ruled in the late 1970s that data involving the communications of Americans does not belong to the individual or individuals involved in the communicating; it belongs to the provider of the service which enables the communication to take place. Given that, it is hardly a violation of privacy for the service provider to hand that information over to the federal government, whether through the use of subpoenas or just out of the good nature of the private company.
One of my favorite thinkers on all matters Islamic Jihad, Andrew McCarthy of National Review, has voiced similar sentiments about the likelihood of this ruling being overturned and for the same reasons. He likes the program (I do not) and he thinks it a valuable tool in the fight against Islamists seeking to carry out terrorist attacks against the US. (It does nothing to increase our ability to fight terrorism, nor does any other overbearing intrusion by the federal government.)
However, McCarthy brings up a wonderful point about the program that is key to this case needing to be challenged. In his brief posting on National Review's blog "The Corner" he writes "it is true that the program turns the usual investigative process on its head. Generally speaking, the government must establish reasonable grounds for suspicion before using coercive methods to collect information that proves wrongdoing. In the NSA program, by contrast, the government collects information first, without any individualized suspicion of wrongdoing."
Now why is this statement so important? Because this is exactly the reason to challenge the legality of this program. I work in this field. I go through yearly training on what I can and cannot do as an intelligence analyst. I know that if any of my targets have sustained contact with a US citizen that I have to go through a very rigorous process before I can do any collection on that person. That person has met the criteria for collection based on suspicious communications with a known bad guy, and my request to target that individual would be specific to that individual. It would not encompass everyone who happens to use that service provider. It would not encompass everyone in the US who has contact with him on any basis. It would be strictly to collect both sides of the communication between that US citizen and the bad guy originally targeted.
What McCarthy has stated--and what I have written in previous columns dealing with this subject--is that the US government now views you as a criminal target by virtue of having a cell phone and therefore can vacuum up your communications metadata in the off chance that you someday speak to a member of al Qaeda about a bomb plot. Just like now you are considered a threat by virtue of purchasing a plane ticket and must undergo a search by federal agents acting on behalf of the government.
The reason for challenging this program is because it violates the language of the Foreign Intelligence Surveillance Act, not because it is a violation of the Fourth Amendment. The law has always been that you must first have a reason, a suspicion, before you can actively target a US citizen for collection by an intelligence community component. If this program is allowed to stand, that safeguard will be thrown out the window and you will become targeted every time you make or receive a phone call, send or receive a text message, send or receive an email, or simply log on to the Internet. That is a scary proposition and will do nothing to curtail terrorist attacks in the future. You want proof? Then ask yourself when in the history of the TSA has it thwarted a terrorist attack? I will give you a hint, it has not.
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