The Legality of Spying (Part 1)

When they wrote the Constitution, the Founding Fathers envisioned a document that would provide for a fair but workable government. Liberty would prove to be a valued commodity, so much so that it became an integral principle of the document. A most important premise of the right to liberty is to be free from unwarranted governmental intrusion into our personal lives and effects. So stands the Fourth Amendment.

The problem with the Fourth Amendment is that protection is limited to unreasonable searches and seizures. What constitutes an unreasonable search is largely dependent on time, place and circumstances. While a warrant to search or seize may be acceptable practice in most cases, exigent circumstances may dictate an exclusion and therefore justify a warrantless search.

While the interception of wire, electronic or oral communication is permissible under Title 18 of the U.S. Code and the Foreign Intelligence Surveillance Act of 1978 (FISA), certain safeguards are in place to protect an unwarranted intrusion into the private lives of U.S. citizens. In most cases a court order is necessary to conduct surveillance. Exemptions do apply in that a party to a communication or one who has given prior consent to be monitored are acting within the law and their conversations with others can be monitored much to the detriment of the other. Under FISA the application to the secret court which grants the warrant is reviewed ex parte. Warrants for surveillance are routinely granted except in cases of improper application. The warrant can be granted retroactively.

FISA is found under Title 50 of the U.S. Code and is a cumbersome document to grasp to say the least. In a nutshell part of Title 50 deals with intercepting communication between members of foreign powers in order to thwart unlawful activity. Electronic surveillance absent a court order is not permitted when the information acquired will be the contents of a communication to which a United States person is a party. That should be crystal clear. Furthermore, a United states person can not be considered a member of a foreign power merely by exercising his/her rights under the First Amendment.

The crux of the matter lays with the agency of the federal government conducting the described surveillance. The National Security Agency has authority to spy on foreign powers, not U.S. citizens. That is the province of the F.B. I. But the NSA armed with its vast array of spy in the sky type satellites, its parabolic dishes, its ability to infiltrate your desktop pc and laptop has been given carte blanche authority to spy on anyone and everyone. In times of war and certainly after the tragic event of 9-11, we as Americans resign ourselves to the cold hard fact that surrender of some liberties is essential to our survival. However we are not talking about a James bond thriller, but a piece straight out of the Orwellian novel.

The President insists that U.S. citizens were not targeted for illegal spying. He insists that in some cases it was unnecessary or imprudent to apply for warrants. He insists that it was not in the best interest of the Country to comply with the law. It would be all so simplistic to dwell on the total disregard of the Fourth Amendment, but often the Constitution pits one component against the other.