Sunday, December 18, 2005

NSA Spying

A lot of people were shocked, or at least pretended to be shocked, that since 2002, Bush has authorized the NSA to spy on a number of international calls made by Americans with close ties to Al Qaeda. Personally, I'd be shocked to find out that there was anything that the NSA's computers didn't monitor. (Has no one ever heard of Echelon?) That's not to say that such monitoring is appropriate, but none of this is exactly new.

Another objection is that the NSA did this monitoring without a warrant. That horrifies a lot of people who assume that every search by the government has to have a warrant.

I don't know. Akhil Amar of Yale has written (in various articles and books) that the modern conception of the Fourth Amendment is all wrong. As I recall, his argument is closely tied to the text of the Fourth Amendment:
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 Fourth Amendment mentions 1) a right of people to be "secure" against "unreasonable searches and seizures; and then in a separate clause, 2) no warrants shall issue except on "probable cause." Notice what it does not say: "The right of the people to be secure against searches without warrants shall be secure," which is what some people seem to think the text says.

From the history of the Fourth Amendment's drafting and application -- again, as I recall from reading Amar's work a few years ago -- it becomes clear that the Founders were actually worried about warrants. That is, far from trying to mandate that the government obtain warrants in all cases, the Fourth Amendment was really intended to limit the availability of warrants, i.e., only on a higher showing of "probable cause" as opposed to mere "reasonableness." This was because a warrant was viewed as giving the government an official license to search with immunity to any further penalties, such as the civil penalties that might otherwise be available against government agents who acted unreasonably.

Amar's historical evidence has been questioned, but he makes a very interesting point. In the current situation, why can't the NSA say, "Monitoring these calls is reasonable; and that's all that the Fourth Amendment requires if the government isn't seeking a warrant"?

UPDATE: Amar gives a brief explanation of his theory here (PDF file).


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