Wednesday, September 19, 2007

NSA and Fourth Amendment: From "shall not" to "maybe, maybe not"

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..." 4th Amendment of the U.S. Constitution

The Boston Globe reports today that the electronic eavesdropping law they want to make permanent allows the government to engage in spying without any warrant or oversight as long as, in the case of a phone tap, it is "reasonably believed" that one of the parties is overseas, and the "intended" target is not the American. So, even assuming the best of motives, if you are an AP reporter with the mother of all breaking stories coming from Iraq which spells trouble for the administration, watch your back. Bad things happen to reporters in Iraq. At a minimum the damage control operation will have real-time info.

The Fourth Amendment recognized that searches were sometimes required in the name of the law, but requires authorities to obtain warrants from judges and have "probable cause." What the Founders sought to limit were pure fishing expeditions, and harassment. It could be argued that when massive numbers of "transactions" are processed, as Mike McConnell, Director of National Intelligence calls them, then an audit of search results and keywords would substitute as the oversight intended by warrants.

I'm not so sure such massive data mining operations aren't counterproductive. If you know, for example, that Terrorist A is going to call Terrorist B on such and such a day on a cellphone terminating somewhere on a Philly cell tower network, then that is a search that is limited in scope. If you are looking for "patterns" and sweeping every conversation that includes the words "Bush sucks," you are probably wasting the taxpayer's money, which would be better spent training all those Arabic translators that we're so short of, and training the potential Arab-American agents that the CIA is turning away in favor of Midwestern guys who stand out like sore thumbs in any Middle Eastern bazaar. On other words, good old fashioned spy work (yes, like Valerie Plame did, before she was exposed!)

Any Congress that accepts "reasonably believed to be overseas" is a Congress that might be interested in a bridge I've got to sell. Of course people won't understand what has really happened until your million dollar marketing plan suddenly seems to be getting out-guessed by a company headed by that Young College Republicans prick you used to know, and you'll never be able to prove a thing.