NSA spying and the Constitution: Why Obama does not get it


“[N]othing that I have learned since indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.”

–Barack Obama, January 17, 2014

Barack Obama simply misses the point.

In a windy speech seeking to address NSA spying on American citizens and foreign national, including our allies, Obama’s speech amounted to nothing more than “trust the government to do the right thing and protect your rights.” Such a sentiment completely misses the point about why we have a Constitution and in particular, the Fourth Amendment and the demands that searches be conducted only upon probable cause.

Let’s first start with why the speech. The speech did not take place because the president was genuinely concerned or worried about the threat to individual liberties associated with the NSA intelligence gathering of our phone, e-mail and other metadata. Instead, the only reason the speech took place was because of the disclosures by Edward Snowden. Had those leaks not occurred it seems unlikely that the public would have known about the NSA spying. After all, the FISA Court that issues warrants to allow for activity like this is a secret court–no different than the old Star Chamber of the British monarchy. One can debate whether Snowden is a hero or a criminal but the truth is that he revealed something that the public would not have known about.

As a result of Snowden we have come to learn of the extensive reach of the NSA in terms of spying on Americans and others across the world. We have also come to learn from a few scattered court decisions issued that the NSA has not always complied with court warrants, often exceeding them or acting way beyond their scope. All in the interest in keeping us safe and secure from terrorism. But Snowden’s disclosures have forced a public debate, pushing the president into the position of having to form a task force to reevaluate they NSA activity. His speech on January 17, was a response.

To say the least, Obama was unapologetic if not defiant. He first appealed to fear and the threats to our security that terrorism poses and then he defended in a sanitized version how effective our intelligence gathering has been to protect us throughout history. The ends I guess justify the means.

But then Obama outlines the changes to the spying program. Frankly, there were no real substantive changes. The NSA will continue gathering metadata and will not stop monitoring calls and e-mails. He does call for some minor changes in the FISA court but they are not really clear what they will be. The major change is to say that the NSA cannot store the metadata anymore. Someone else will? But whom? Private vendors, like the one who Snowden worked for? Or companies like Target and Neiman Marcus? Whether in private or public hands the data still exists, is still being examined, and still constitutes spying.

Moreover, Obama misses other fundamental issues. First, the issue is not whether the data has kept us safe and secure. The issue is about following the law. Rarely do I echo Rand Paul but he got it fundamentally right on CNN. If we suspect someone is doing something illegal then get a search warrant. The fourth Amendment requires particular suspicion to do searches–it does not allow for general fishing trips to look for information or to round up the usual suspects. It’s not hard to get search warrants–I did it when I worked in government.

Morever, the security versus liberty dichotomy is a false one. When are only secure when our liberty is protected. Additionally, there is no evidence that this wholesale spying is efficient or produces real intelligence. It is overreach. Use real intelligence to focus on real suspects.

Third, to capitulate on the Fourth Amendment means we have lost. Immediately after the events of 9/11 President Bush declared: “The object of terrorism is to try to force us to change our way of life, is to force us to retreat, is to force us to be what we’re not. And that’s–they’re going to fail. They’re simply going to fail.” Bush was correct in saying what he did even though he would fail to honor them. We fail as a country if we fail to respect our Constitution and Bill of Rights. We are the “shining city on the hill” because we respect and do not abuse rights. That is why stories about spying and torture are so bad.

But finally, Obama misses it because in the end he speech comes down to no more than simply “trust the government to do the right thing.” Tell that to James Madison and the constitutional framers. Constitutions and bills of rights are written because we fundamentally should not always trust the government. Both are written to restrain the government. This is what Obama misses.

I am not conspiracy theorist. It was a single shooter in Dallas in 1963. But what should be skeptical about the NSA spying. We are told they are not listening to our phone conversations or looking at the content of our e-mails? Should we believe them? Remember Nixon and the extent of his spying and his assertions that we should trust the president when it comes to national security?

Obama missed a great opportunity. It was a chance to do what candidate Obama promised. It was a chance to also reign in private business data gathering. It was a change to move us to a new discussion about privacy and rights. But he failed to do that and instead simply missed the point about spying.