by Ivan Eland
In an outrageous setting of priorities in the National Security Agency (NSA) spying scandal, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA) has implicitly placed the feelings of foreign heads of state above the constitutional rights of Americans.
Responding to anger, complaints, and pressure from powerful German Chancellor Angela Merkel about revelations that NSA had intercepted her cell phone calls, Ms. Feinstein raised the question of overreach by the agency and the need for reform. Feinstein said that tapping the private phones of close allies “has much more political liability than probably intelligence viability, and I think we ought to look at it carefully.” Adding to the pressure were complaints by the friendly governments of France, Mexico, and Brazil about NSA’s massive spying in their countries.
Edward Snowden, who revealed NSA spying, wants clemency for provoking a debate on the extent of U.S. spying but should not get it, because such surveillance is the snooping NSA should be doing—on foreign countries, friendly or hostile. All countries spy on each, no matter if they are friend or foe, and all countries know it happens, despite the anguished crocodile tears of Merkel and the rest. Some good has come from Snowden’s revelations of NSA spying, but this is not it; against an oath he took to the US government, he has revealed to these foreign targets of US spying how it is being done, so that they can take countermeasures to foil it in the future.
Yet as damning as these revelations are for Snowden’s place in history, his whistle blowing about NSA’s collection of meta-data (time, parties, and duration) on the phone calls of all Americans and use of an unconstitutionally low standard to monitor the contents of some of them should actually give him an overall net positive evaluation. In a republic, foreign threats, even terrorism, should not be used as an excuse for US spy agencies to be turned on Americans, the people they are supposed to be protecting from harm by spying—on foreigners. However, since World War II, the American republic has been eroded by allowing the foreign policy tail—for example, combating Soviet communism and now fighting terrorism—to wag the republic’s dog. Anti-communist and anti-terrorist hysteria have caused US spy agencies to convert from protecting US citizens to targeting them.
And Senator Feinstein—who, as chairwoman of the Intelligence Committee, is supposed to oversee and rein in spy agencies—is leading this charge in the wrong direction. Having been thoroughly co-opted by the agencies she is overseeing—not an uncommon problem in Washington—she is responding to pressure from allied governments to rein in US spying on foreign leaders and governments while at the same time proposing an unconstitutional law that shields existing NSA spying on Americans! Apparently, the apathetic American people don’t form as effective a pressure group on Feinstein as do Merkel and other foreign allies.
And unfortunately, there is no branch of the US government that is sticking up for Americans’ constitutional rights either. Congress, the executive branch, and even the courts—especially the rubber-stamp Foreign Intelligence Surveillance Court—all maintain that a clear violation of the text of the Fourth Amendment to the Constitution is quite legal. The Fourth Amendment 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.
As this provision clearly states, to collect an American’s personal phone records, the executive branch must obtain a judicially approved warrant based on probable cause that a crime has been committed. Furthermore, the amendment requires that searches be specific—to avoid general fishing expeditions by the government, as the British originally perpetrated on the American colonists. NSA’s collecting of the records of phone calls of all Americans is a general search, and it is impossible that the US government has probable cause to believe all Americans are guilty of terrorism. And when examining the actual contents of some Americans’ calls, the NSA is using a standard much lower than probable cause.
Thus, Dianne Feinstein advocates the shielding of foreign leaders, who aren’t covered by the US Constitution, from legal US spying, but she cares little about protecting American citizens, who are supposed to be safeguarded, instead of victimized, by US government spying!
Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.
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