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'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 …"
So reads the Fourth Amendment to the U.S. Constitution. How is it possible then that the federal government has, using a secret program, electronically mined the phone calls of Americans, accessing every detail except the words spoken? The National Security Agency has also been trawling Internet communications, wired into the servers of leading American web- searching and social-networking companies.
These electronic communications are the contemporary equivalent of the "papers and effects" that the Fourth Amendment, in some of the plainest language found in the Constitution, sought to protect from "unreasonable searches." The "Warrant Clause" stipulates that the government can violate this privacy protection only if it has probable cause of wrong doing, backed by evidence, and that the place to be searched must be specific.
The Obama administration - like the Bush administration before it, along with enablers such as Sen. Dianne Feinstein, D-Calif. - contends that it is legal and constitutional. It complies, they say, with the Patriot Act. That dreadfully broad piece of legislation, providing immense investigatory power to the government, was rushed into law in the fearful days after the attacks of Sept. 11, 2001. When media reports disclosed the degree of warrantless surveillance during the latter days of the Bush administration, Congress doubled down. The Protect America Act in 2007 and expansion of the Foreign Intelligence Surveillance Act in 2008 immunized from litigation private communication companies that cooperated with intelligence collection.
Using these laws, the NSA and FBI have apparently been receiving secret warrants from secret judges to conduct the stunningly expansive surveillance. If that current system is supposed to provide a judiciary check on government abuse, it is woefully insufficient. Billions of electronic communications from millions of individuals are searched without evidence they are involved in any wrongdoing and without any specificity.
Those arguing in favor of these tactics contend computers cull the information only in search of trends. Only if indications of foreign-aided terrorist activity emerge are the communications of specific individuals and organizations looked at, and then only with a warrant.
First, there is not any way of knowing that is how the system is operating. The people are asked to settle for, "Trust us." Secondly, it is simply un-American and, we would argue, unconstitutional to have machines in control of federal investigators monitoring the communications of the people.
Certainly in these extraordinary times there is a need for extraordinary measures to root out those intent on doing Americans harm. But more safeguards are necessary. The current system provides no provision for advocates to argue in favor of constitutional protection and limiting scope. It is too secret and too weighted in favor of surveillance and security trumping all other priorities.
President Obama, who as a candidate criticized President Bush for going too far in sacrificing liberty in the name of security, appears to have gone as far as, and further, than his predecessor.
Americans recognize they have to compromise on some freedoms to protect against terrorist attacks. They stand in long airport lines, submit to the equivalent of electronic strip searches, accept pat downs to enter sporting events and hand over identification when asked. But this goes too far.
As chairwoman of the Senate Intelligence Committee, Sen. Feinstein should be investigating this overreach, rather than blindly defending it. The Patriot Act should be revisited and either amended to stop such abuses or outright repealed. The government must find a way to protect Americans that does not involve electronically spying on all their communications.