The conflict between national security and
personal freedom is as old as the Constitution. In the struggle to guarantee
personal freedom, the Fourth Amendment became part of the Bill of Rights. It 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 adopted in response to
the abuse of “the writ of assistance,” a type of general search warrant issued by the English crown, and a major source of tension in pre-Revolutionary America. This writ
gave the King a right to probe into every activity of the people. No search warrant was needed.
Recently the Fourth Amendment has been virtually
ignored to the point where we may no longer have a right to private mail, telephone
calls or electronic messages. The reason for these compromises is they are said
to be necessary for national security, thus the conflict. The issue is not new.
For decades the government had conducted warrantless wiretaps, but in 1978 the
Supreme Court ruled them unconstitutional on Fourth Amendment grounds. Almost
immediately Congress passed the “Foreign Intelligence Security Act“ authorizing
a secret court, which effectively sidestepped the ruling. The power of this hidden-from-the-public
FISA court is more invasive today than ever.
This evasion of the Fourth Amendment was
broadened in 2001 by the passage of the ”USA Patriot Act.”
Section 215 of
that Act authorizes the government to obtain "any tangible thing" relevant
to a terrorism investigation, even if there is no showing that the
"thing" pertains to suspected terrorists or terrorist activities.
Section 206
of the Patriot Act, also known as "the roving John Doe wiretap"
provision, permits the government to obtain intelligence surveillance orders
that identify neither the person nor the facility to be tapped.
Other parts of the Act
relate to the issuance and use of national security ”NSA permits,” by which the
government is able to obtain the communication, financial and credit records of
anyone deemed related to a possible terrorism threat.
According to Britain’s The Guardian, top
secret documents passed by Edward Snowden show the National Security Agency has
a “secret backdoor” into its databases that allows its agents to search U.S.
citizens’ email and phone calls without a warrant or other oversight.
The
previously undisclosed capability lets NSA operatives hunt for individual
Americans’ communications using their name or other identifying information.
The
authority was approved in 2011, and it contradicts repeated assurances from
President Obama and senior intelligence officials to both Congress and the
American public that individual privacy is protected from the NSA’s dragnet
surveillance program.
Under these provisions our
government is now free to collect any and all information and communications
from any of us with no warrant and no judicial review.
Edward Snowden has brought
to the surface this governmental invasion of the freedom guaranteed by the
Fourth Amendment. Had it not been for Snowden’s disclosures there probably would
be no investigation of the loss of freedom which the fourth amendment
guaranteed. The question remains, have his revelations jeopardized the nation’s
security? Is he a whistle blower or a security threat? Here the conflict between the two
concerns is encapsulated.
As of two weeks ago the
President noted the uneasiness in the American people about the loss of personal
freedom. What steps he or the
Congress will take, are not yet clear. But certainly the pendulum having swung
far over to the security side of the debate, Congress and the President must
now provide remedies again guaranteeing the people’s privacy rights. In the
meantime, although Snowden is now a fugitive from our justice system, he must
be credited for peeling the lid off this can of worms.
This is no simple
matter. The relationship between
the two concerns must generate a search for the balance. Obviously both
personal freedom and national security are of enormous importance. The
temptation will be to continue to erode the liberties of the fourth amendment
in the name of security.
Charles Bayer
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