Bo Statham: Fourth Amendment takes backseat to national security

Since June, the nation and world have been shocked by the disclosure of information about U.S. surveillance and intelligence-gathering activities. The information is contained in documents leaked by Edward J. Snowden, a former National Security Agency contractor, to newspaper reporters.

Two things may be said with certainty about these revelations: First, the government must conduct intelligence activities in order to protect the nation and its citizens; second, inherent in those actions is the potential invasion of every American’s constitutional rights.

The first disclosure of the documents revealed only that Verizon had been ordered to turn over to the government, for a period of 3 months, all “telephony metadata” (originating and terminating numbers, time, date and duration of calls, etc.) on all calls within its system between the U.S. and abroad or wholly within the U.S. The content of those calls was not listened to or recorded. During the seven months since, continuing disclosures have revealed much more extensive and intrusive surveillance and intelligence-gathering activities.

It is now known that NSA collects metadata on every telephone call within the U.S. and between the U.S. and abroad: billions of records on Americans not under any suspicion. A birthday call to mother is recorded. Also, NSA has obtained direct access to the systems of Google, Facebook, Apple and other Internet companies that allows it to collect the content of emails, Internet search histories, file transfers and live chats.

Personal cell phone conversations of German Chancellor Angela Merkel and Brazilian President Dilma Rousseff have been monitored. European Union offices in New York and Washington have been bugged, as have 38 embassies and missions of U.S. allies.

Further, we don’t know the full extent of these activities because intelligence agencies do not disclose everything or always tell the truth. Director of National Intelligence James Clapper, for example, apologized in July 2013 for a “clearly erroneous” answer he gave under oath to Congress about whether the government collects data on millions of Americans. Deception is a trademark of intelligence activities.

The Fourth Amendment protects Americans from “unreasonable searches and seizures” by the government. A court warrant to conduct searches and seizures must be based on probable cause to believe criminal activity exists and must describe “the place to be searched, and the persons or things to be seized.” The bulk collection of telephony metadata without individual warrants clearly violates these rights.

These surveillance and intelligence-gathering actions were approved by President George W. Bush after 9/11 and disappointingly continued, indeed enhanced, by the Obama administration. A review group appointed by President Obama to study these activities recently made 46 recommendations “to protect our national security and advance our foreign policy while also respecting our long-standing commitment to privacy and civil liberties.” Those are not mutually exclusive mandates.

Justice Louis Brandeis, dissenting in a 1928 decision, said the Fourth Amendment protects “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” That noble principle must be revitalized today.

Bo Statham is a retired lawyer, congressional aide and businessman. He lives in Gardnerville and can be reached at bostatham@me.com.