The Fourth Amendment and Metadata
#1
My personal feelings about Edward Snowden are not really appropriate for this forum, so rather than break my own rules I thought I would just focus on the crux of his justification for his actions.

Snowden -- a systems administrator who was not engaged in any direct intelligence operations or trained for intelligence gathering and analysis -- stole files from the National Security Agency that he believes show the NSA is violating Americans' Fourth Amendment Rights against "unreasonable search and seizure".

However, what Mr. Snowden (and many if not all of his supporters) doesn't understand is that the data the NSA collects -- information about phone calls, emails, and chats -- is NOT protected by the US Fourth Amendment. This data is considered by the US courts to be external to the "private space" of citizens and is therefore subject to government scrutiny and analysis without a need to obtain warrants from authorizing courts.

To actually collect the contents of phone calls and emails (or chats) the NSA and other government bodies DO need to obtain warrants; and that, of course, is what the FISA (Foreign Intelligene Surveillance Act) Court does.

According to Fourth Amendment to the US Constitution:[indent]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.[/indent]Many people have objected to how the FISA courts have been handling government requests for warrants and court orders, but the Constitution does not require very much in the way of "due process".

Furthermore, according to the United States Constitution itself, Congress is authorized to conduct its deliberations in secret at its own discretion:[indent]Section. 5.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.[/indent]Hence, the closed meetings Senate and House committees hold in order to review and exercise oversight over the government's intelligence programs are fully compliant with the Constitution's requirements.

Combined with the above powers, the Constitution also ensures that Congress takes responsibility for the defense of the nation:[indent]Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;[/indent]In other words, if Americans have a problem with how the NSA and other intelligence agencies are capturing information and what they are doing with it, the citizens need to take up the matter with the Congress, not with the Administration. No President has the authority to set aside or override the powers and responsibilities set forth by the Constitution.

Congress, of course, is typically the most reviled governmental body in the United States. We all have complaints about how they do their job but then it's not easy for 535 people to come together and agree on everything. That they can get anything done at all is sometimes just amazing. I mean, look at how they managed to reduce government spending this year: they sort of backed into it with a ridiculous law mandating across-the-board spending cuts because neither the Republicans nor the Democrats had the political will to do anything other than let the Sequester (as it's called) take place. But they did come together to create that law not so long ago.

Under current US law, metadata has not been given Fourth Amendment protections. The issue of metadata has only been addressed by the US courts a few times. One of the most crucial decisions occurred in 1979, when the Supreme Court ruled that metadata about phone calls was not subject to the Fourth Amendment.

As for "unreasonable search and seizure", that issue was broadened (some might say weakened) thanks in great part to men like D.B. Cooper (the first airplane hijacker) and his successors. The US government implemented personal body and belonging searches in airports in the 1970s to ferret out would-be hijackers. After the September 11 attacks airport searches became more invasive (and the scanning technology now in use has been challenged a few times but it has not been completely dismissed).

The Border Patrol also routinely searches vehicles and packages crossing the border. So our legal system recognizes and supports a "reasonable search and seizure" process that does not require court review in advance. On the basis of this and other legal precedents, the concerns that Edward Snowden and his supporters have raised about the NSA metadata collection program are without any legal foundation.

In other words, Snowden did not blow the whistle on any actual wrongdoing. Now, the matter of James Clapper's testimony to Congress, in which he gave a false answer to a direct question about whether the NSA was collecting data on Americans, has been brought up many times over the past few weeks. However, people are amazed that Clapper has not been charged with any crimes. I think the reason why is simple: His office immediately contacted the Congressional committee before which he gave that testimony and provided clarification. So Congress already knew by the time that all this information came out that the NSA was indeed collecting metadata on American citizens.

It is solely up to the Congress to decide whether they will press charges against someone like Clapper.

Meanwhile, our enemies (Al Qaeda) -- whose stated goals are to incite a global war by 2020 with the intent of overthrowing all governments and installing an Islamic Caliphate to rule the world -- have been using our telecommunications and Internet services against us, relatively unaware of the extent of US government monitoring (not to mention similar monitoring by nearly every other government around the world). Snowden's disclosures have now alerted our enemies to the extent and nature of this monitoring and according to our intelligence operations leaders the enemy has already begun changing how they communicate to "drop off the grid".

Branhes of Al Qaeda are currently conducting or inciting military operations in more than a dozen nations, including Afghanistan, Pakistan, Yemen, Iraq, Somalia, Mali, Syria, Egypt (the Sinai), and Libya (among others). Although all these conflicts may seem remote and far away to most Americans, Al Qaeda operatives have struck at Spain, Italy, Germany, Great Britain, the United States, the Philippines, and several other countries in addition to those nations where they or their allies are engaged in combat.

The NSA claims that more than 50 Al Qaeda attacks against the United States and other western nations were thwarted as a result of the intelligence they gathered from these and other sources. We must now wait to see if our governments can continue to thwart attacks with a similar degree of success (and everyone knows they failed to stop the Boston Marathon bombings). We must also wait to see if Al Qaeda will expand its military operations to yet more countries.
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