Monday, January 27, 2014

President Obama’s Non-Constitutional NSA Initiative

Bruce Ackerman

      President Obama seems to have forgotten the Constitution in formulating his policy on the NSA. A first warning sign came with the publication of an otherwise insightful 300 page report on NSA reform by his special advisory committee. Though the five-man panel included three eminent constitutionalists – Geoffrey Stone, Cass Sunstein, and Peter Swire – it explained that "Our charge is not to interpret the Fourth Amendment, but to make recommendations about sound public policy." (Report, p. 85)

     To his credit, Geoff Stone did reach the constitutional issue at the conclusion of a series of Huffposts elaborating on the Committee’s report. Speaking only for himself, he elaborates a "middle of the road" position -- arguing that the current NSA program is unconstitutional, but that his Committee’s reforms suffice to fix the problem, and allow mass collection to continue in conformity with the Fourth Amendment.
I disagree. In my view, even the massive data-sweeps tolerated by Obama's "reformed" initiative should be viewed as a high-tech version of the “general warrant” that was “abhorred by the colonists" (See, eg, US v Kahn 415 US 143). As the Court has repeatedly recognized, it was the revolutionary generation's opposition to general warrants that motivated the Fourth Amendment's demand that "no Warrants shall issue, but upon probable cause... describing the place to be searched, and the persons or things to be seized." (See my Huffpost commentary.)
But for present purposes, it isn't important to decide who gets the best of the argument. The key point is that President Obama has no right to stand on the sidelines while scholars and courts debate the issue. As president, he has an independent obligation to assure himself, and explain to the American people, why he believes that his reforms pass constitutional muster.

From this perspective, the president’s recent speech on the NSA was a terrible disappointment. He simply refused to confront the Fourth Amendment, let alone explain why he thought his initiative complied with it. (See my critique in Sunday's Los Angeles Times.)
Despite the President's silence, I suspect that there is an opinion on this subject in the files of the Office of Legal Counsel or the White House Counsel or the FISA Court.
Might the President be good enough to let the American people in on his secret?

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