By Cindy Cohn, Legal Director, Electronic Frontier Foundation.
Both former NSA Director Michael Hayden and former Justice Department attorney John Yoo have taken to the editorial pages of major national newspapers this summer to defend the so-called Presidential Surveillance Program, the still-shadowy set of programs that spy on Americans in America without any probable cause or warrant. This campaign to sway public opinion is ongoing because neither the past Bush officials nor the current Obama administration officials dare to defend their illegal activities on the merits in a court of law.
While the details are unknown, credible evidence indicates that billions of everyday communications of ordinary Americans are swept up by government computers and run through a process that includes both data-mining and review of content, to try to figure out whether any of us were involved in illegal or terrorist-related activity. That means that even the most personal and private of our electronic communications - between doctors and patients, between husbands and wives, or between children and parents - are subject to review by computer algorithms programmed by government bureaucrats or by the bureaucrats themselves.
It's a bizarre turn of events, these unwarranted general searches. Our country was founded on the rejection of "general warrants" - pieces of paper that gave the Executive (then the King) unchecked power to search colonial Americans without cause. The Fourth Amendment was adopted in part to stop these "hated writs" and to make sure that searches of the papers of Americans required a probable cause showing to a court. The warrantless surveillance program returns us to the policies of King George III only with a digital boost. It subjects a huge number our daily digital papers to threshold surveillance, then adding subsequent, more intrusive warrantless surveillance if faceless government computers and bureaucrats determine that our communications or communications patterns merit further scrutiny.
Both Yoo and Hayden draw from a similar bag of tricks to defend the surveillance programs, including claims that there was a "gap" between our domestic surveillance and our foreign intelligence surveillance.
They also cite the briefings given to select members of Congress, which the members themselves say were often incomplete and even possibly misleading. They then rely on the fact that hand-picked Bush administration political appointee attorneys signed off. But all of these rationales dodge the critical constitutional questions raised by wholesale surveillance of Americans without probable cause or a judicial determination. What these Bush officials call a "gap" between domestic surveillance authority and our ability to conduct surveillance of foreigners abroad is where our constitutional rights reside.
The Bush administration's central view was that the executive branch was somehow above the niceties of the Constitution. What's clear now, and deeply distressing, is President Obama's embrace of that radical view and rejection of the rule of law. Despite running on promises to return the country to the proper constitutional balance, President Obama's Justice Department has been pulling out all the stops to kill the major lawsuits challenging the surveillance while giving no indication that the surveillance has ceased.
The administration's arguments are not addressing the merits of the legal claims, but instead are seeking to prevent real judicial review of the surveillance programs and thereby avoid the crucial constitutional questions. If our system of checks and balances is to continue and if our nation is to remain faithful to the individual liberties on which it was founded, then the Bush and Obama administrations must defend their surveillance program on the merits before a court of law.