The NSA Programs Are Constitutional Because The Constitution Sucks on Electronic Surveillance and Always Has
We have to face an unsettling fact: The Fourth Amendment sucks. In the light of recent revelations by Edward Snowden in the Guardian and other media outlets that the NSA and FBI are engaged in widespread, indiscriminate collection of electronic data about phone calls, email, and social media, some media and blogosphere commentators have angrily denounced these programs as unconstitutional or illegal.
These programs may be outrageous. They may violate your sense of privacy. They may be expensive boondogles and they may be ineffective. They may make certain of you very uneasy about ordering your, ahem, "medical" marijuana from your, ahem, "medical marijuana dispensary" because apparently those phone records are now stored by the NSA for an undisclosed or indefinite amount of time.
But one thing they are not is unconstitutional. That's because contrary to popular opinion, the Fourth Amendment protections against certain kinds of searches and seizures -- wiretaps and electronic intercepts, for example -- are extremely, extremely weak.
So let's take a look at what the Constitution and Supreme Court actually say about electronic eavesdropping. The reason the debate over the NSA sometimes seems unbridgeable is that some commentators are evaluating it by the standard of what the law actually is, while others are evaluating it by the standard of what they would hope the law to be, or believe it to be. To paraphrase Donald Rumsfeld, we go into this struggle over electronic privacy with the Fourth Amendment we have, not with the Fourth Amendment we might like to have.
The Supreme Court has never held, for example, that the Fourth Amendment of the Constitution forbids the government from intercepting and recording electronic communications during warrantless searches or seizures; it has only issued decisions about how evidence obtained by such searches can be used in trials. For most of U.S. history, the Supreme Court gave an implicit green light to nearly unlimited electronic surveillance, eavesdropping and wiretaps by the government, and for most of that period, the government used that authority with reckless abandon.
The reason this is important to anyone who would like to change the NSA program and other forms of electronic surveillance, is that the Obama administration has been responsive to progressive critiques on many occasions. The president has said he wants to have a debate about the balance between security provided by electronic surveillance on one hand, and privacy required by the traditions of the Bill of Rights. The administration is responsive to critiques based on reality and empiricism; but, however, it has been dismissive of counter factual critiques, hyperventilating or strategies it considers illogical. In other words, if you actually want to change these programs, and have the administration listen, you can't start with a false premise, and the idea that the administration is violating the Constitution (or that President Obama as a former constitutional law professor should "know better") is a false premise.
Moreover, too much of the commentary is erasing our collective history. Too much of the commentary about the NSA programs posits a rosy past when law enforcement or intelligence agencies "obeyed the Constitution," as compared to this administration's "unprecedented" expansion of surveillance. This false history not only lets the Bush administration off the hook for its truly unprecedented and illegal use of surveillance but elides the awful 20th century history of the use of electronic surveillance to repress racial and ideological minorities, to undermine democracy, and to wage campaigns of imperialism and murder overseas.