Constitution Daily

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Jeffrey Rosen offers a fix to make surveillance more constitutional

July 1, 2013 by NCC Staff


The National Constitution Center’s Jeffrey Rosen explains some constitutional problems with the National Security Agency’s surveillance programs—and how they can be fixed to be more in line with the Constitution.

Rosen and Wu
Rosen and Wu

Rosen, the Center's CEO and president, appeared along with Columbia’s Tim Wu and moderator Jim Halpert at the Aspen Institute’s Aspen Ideas Festival 2013 in a public discussion on Sunday about privacy, PRISM and the National Security Agency called “Matter of Debate: Is Privacy Paramount or Should We Live in a Transparent Society?”

Link: Watch video from the Aspen Ideas Festival 2013

Halpert asked Rosen if the NSA’s public defense of its surveillance program, based on the release of the number of terrorist attacks averted because of government monitoring, solved a constitutional issue.

“We can’t evaluate the constitutionality of the program without the legal memos and the secret orders justifying it being disclosed,” Rosen said.

“Let’s assume the program works. It is still completely unnecessary to design it in a way that arguably violates the Constitution as well as the USA Patriot Act. And if it doesn’t violate the USA Patriot Act, then the Patriot Act itself would violate the Constitution,” he added.

Related Story: Rosen interviews Justice Elena Kagan

Rosen said there are ways to fix some constitutional issues with government surveillance.

“I think on the back of a napkin, Tim and I could come up with legal restrictions on foreign intelligence surveillance that would both allow the government to have access to a lot of data no human being could ever see unless there was a degree of individualized suspicion that someone was actually a suspected spy or terrorist; that no data of innocent people was seen; if the data was destroyed if it was not connected to a guilty person, and so forth,” said Rosen.

Rosen explained such a regime would resemble the system used before the 9/11 terrorist attacks after Congress approved the Foreign Intelligence Surveillance Act in the 1970s.

“It’s the regime that the Foreign Intelligence Surveillance Act [FISA] envisioned that said that the government could seize without warrant foreign intelligence information as long as it was a specified set of records and it was linked to a suspected spy or terrorist,” Rosen said.

“What the Patriot Act did was eliminate the requirement that it could only be certain types of records and allow the government to ‘hoover’ everything, but more importantly to seize records by merely certifying that they were relevant to a terrorism investigation and not connected to a particular spy or terrorist.  That was the troubling and arguably unconstitutional expansion that President Obama opposed when he supported the SAFE Act in Congress and that Representative [Jim] Sensenbrenner, the author of Section 215 of the Patriot Act, has now repudiated and he has called for a resurrection of these requirements of particularity—that a particular terror suspect be present.”

“And then further expansions in the 2006 amendments to the Foreign Intelligence Surveillance Act allowed data to be seized if it was tangentially relevant to an overseas communication, allowing the government to hoover up a lot of domestic calls and use algorithms that they claimed ensured that Americans were not being spied on.”

“This is not a complicated fix. I think it is very troubling that the opinions are secret and I reject the idea that we have to say, ‘is it worth it?’ Let’s say, ‘if it is worth it, let’s have it and make it consistent with Constitutional limitations.”

And what about a potential Supreme Court ruling about these programs in the wake of this year’s decision in the Clapper case?

In the Clapper v. Amnesty International case, the Supreme Court dismissed claims by academics and journalists who said they had standing to sue because they were calling abroad and they knew their calls were being monitored, as part of a government policy. The Supreme Court said, in a 5-4 decision, that no particular person could prove the surveillance of a specific call, because the surveillance was in secret.

“I could imagine some of the justices in the Clapper majority saying that because no particular individual knows that his or her metadata is actually being examined, because you need the certification of the intelligence agency before any human being could see it, that there is a similar standing problem here,” he added.

But Rosen also said that the Supreme Court’s recent decisions in the same-sex marriage cases could hint at a Court more aware about public opinion.

“The Court, as we heard last night with Justice Kagan, is acutely aware of the significance of imposing these standing bars and maybe the second time around, if Justice Kagan is right, if the Court is aware of what is going on in public debate, they’ll be less likely” to discount such a case.

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