A mere nine months ago no one knew the name Edward Snowden. Now not a week goes by without a news story related to his revelations about the National Security Agency (NSA). No doubt your class has already begun to ponder the implications of NSA information gathering and what it says about our system of governance. Does the executive branch, which controls the NSA through the Department of Defense, have too much power? How do we resolve the tension between liberty and security? Is Snowden, who released classified information, a traitor or a whistleblower? Were his actions morally justified? While the Snowden affair is too large to cover in its entirety (please look at some of the resources below for a great roundup), from a constitutional standpoint one of the most relevant aspects of the debate over his actions is the tension between the executive’s war powers and civil liberties. There are numerous restrictions on the president using the power of the military on American civilians. The Third Amendment, for example, forbids the peacetime quartering of soldiers in domestic homes, and the Posse Comitatus Act of 1878 forbids the federal government from employing military personnel to enforce U.S. domestic law. Similarly, U.S. law prohibits intelligence agencies from targeting American citizens. The National Security Act of 1947, which established the Central Intelligence Agency (CIA), explicitly prohibited the agency from having “police, subpoena, law-enforcement powers, or internal security functions.” The intelligence agency reforms that emerged post-Watergate required special court authorizations for surveillance of U.S. citizens. The boundary between justified and unjustified intelligence gathering has long been the difference between foreign and domestic. However, the difference between foreign and domestic surveillance is no longer so clear. The majority of the communication infrastructure of the world is now located in the United States – giving, as one NSA document called it, a significant “home field advantage” to U.S. intelligence agencies. This may mean that elements of intelligence gathering can be used against domestic targets. We’ve already seen this play out with Project SHAMROCK, an initiative undertaken by the NSA in 1945 to analyze incoming and outgoing telegrams. By the mid-1970s the NSA was analyzing 150,000 messages a month. When the project became public the arguments were similar to the ones we see today. Defenders of the program pointed to the need for accurate intelligence and the potential for foreign agents to use the civilian infrastructure. Critics called it a massive overreach of executive power. The program, under fire from Congress, was cancelled in the late 1970s. Many of the NSA programs detailed in Edward Snowden’s documents are similar to SHAMROCK in that they analyze traffic from U.S. communication hubs to try and detect malicious actors. Is this a violation of the Constitution? Does a government with the power to know more about a person’s telephone calls and internet usage than a spouse or a parent have the ability to blackmail citizens and squash political dissent? Or are these programs a legitimate way for intelligence agencies to do a difficult job? It can be argued both ways. The current debate highlights the importance of civil discourse in order to determine the proper balance of liberty and security in the United States.
NSA performed warrantless searches on Americans’ calls and emails – Clapper, The Guardian Obama’s Restrictions on NSA Surveillance Rely on Narrow Definition of Spying, The Washington Post NSA Files: Decoded Timeline of Edward Snowden Revelations
- How should Congress exercise its oversight of intelligence agencies?
- Do foreign citizens have an expectation of privacy? In the U.S.? In their own countries? If so, should this change U.S. government intelligence operations?
- General warrants, or ‘writs of assistance’, were warrants issued by King George III to authorize general searches of colonists. Agents of the King could search a suspect or a suspect’s home and documents at will. These types of investigations were one of the major complaints of the Founding Fathers. What are the parallels with bulk collection of data? What are the differences?
- There have been reports that the NSA weakened U.S. Internet companies’ security (i.e. made the computer security easier to break) to facilitate data gathering. What constitutional issues might this raise?