Ever since Edward Snowden started leaking information about the NSA's surveillance programs, there has been a vocal chorus of outrage on the left and right alike. Pundits, lawyers and groups ranging from the American Civil Liberties Union to the Electronic Frontier Foundation to tea party organizations have called the surveillance "illegal" and "unconstitutional," and, with more extreme language, "fascist," "tyrannical," "Orwellian," "morally bankrupt," "criminal" and a "coup d'etat." Though Congress has repeatedly approved the surveillance programs, which have withstood judicial scrutiny and are subject to judicial oversight, many continue to question their constitutionality. However, the question of constitutionality is not so simple.
While the Constitution is only 4,618 words long -- including signatures -- its brevity by no means makes it easily discernable. The text is often vague, subject to many possible readings, and some parts even appear to openly contradict others. There are a number of different ways of thinking about the Constitution. Should we pursue the original intent of the founders or interpret the document under a contemporary lens? Should we stick to a literal interpretation of the text or try to discover its spirit? It is no wonder that there are whole courses in law schools on the document and a whole branch of government devoted to its interpretation.
Do I see how the NSA's programs could be in conflict with the Fourth Amendment?
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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Absolutely. In an ideal world, would it be better if the government didn't look at cell phone metadata or get information from Facebook? Of course. Do I agree with Justice Sandra Day O'Connor's 2004 opinion stating, "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens"? Unequivocally.
But, it's also important to be realistic about the serious national security threats we face. A president failing to take every reasonable measure to avert future attacks -- like the one we faced on 9/11, the subway bombings that have rattled Europe, an attack on our food system or a dirty bomb -- would be jeopardizing the entire Union that the Constitution was written to preserve. Just imagine the day after an attack that killed thousands, paralyzed a city, and terrified the nation. Then imagine if it was revealed that the attacker had revealed his intentions on Facebook or in an iMessage or in an email he sent from his Yahoo! address -- channels that the government decided not to monitor.
The president would not only draw the ire of American public (think about what happened when four Americans died in Benghazi) -- and rightly so -- but his dereliction of duty would be exposed. Though such a president may have followed the letter of the Fourth Amendment, he would have failed miserably to uphold his oath to "preserve, protect and defend the Constitution of the United States." That's because the Constitution is not, as Justice Robert Jackson warned, "a suicide pact." We may not be privy to every decision or agree with every choice, but we, the people, elect a president every four years and, in doing so, entrust that person with the authority to make important decisions on our behalf. Ultimately, when it comes to keeping the American people safe, the buck stops with the president.
President Obama is not the first president faced with the tension between the Constitution and protecting national security. In fact, George Washington addressed these concerns in his cover letter to Congress that accompanied the newly drafted Constitution, saying, "It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest." Let's look at how two of our most-celebrated presidents, Jefferson and Lincoln, dealt with constitutional dilemmas.
Thomas Jefferson wrote our Declaration of Independence and was a fervent advocate of a small, limited government. He and his anti-Federalist colleagues insisted on amending the Constitution with a Bill of Rights to protect individuals vis-à-vis a strong federal government. Yet, as our third president, Jefferson disregarded the fact that it was unconstitutional for him to expand the size of the Union. Jefferson purchased the Louisiana territory from France, doubling the size of the nation with land that comprises at least part of 15 present-day states because thought it was imperative to America's economy and national security. The French empire alongside the United States would vanish and America would gain control over the port of New Orleans and the Mississippi River. Justifying his decision, Jefferson wrote, "To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."
During the Civil War, Abraham Lincoln unilaterally suspended habeas corpus, the constitutional right for a person under arrest to appear before a court. Confederate sympathizers in Maryland had attacked Union troops, destroyed railroad bridges and the telegraph infrastructure, threatening troop movements, vital supply routes and potentially blocking access to Washington, D.C. In suspending habeas corpus, Lincoln authorized his generals to arrest anyone suspected of being disloyal to the Union along the Philadelphia to Washington corridor. Though Chief Justice Taney found the suspension of habeas corpus unconstitutional, Lincoln did not budge, telling Congress, "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated." Unimpeded troop movement was essential for the preservation of the Union and the nature of the war required expediency. Ultimately, Lincoln chose to sacrifice habeas corpus -- one part of the Constitution -- to help save the Union, the very bedrock of the Constitution.
A few years later, Lincoln delivered the "Emancipation Proclamation," freeing the slaves in the Confederacy. Though many, both then and now, call this act unconstitutional -- the institution of slavery was, after all, protected by the Constitution -- Lincoln acted in accordance with his oath to "preserve, protect and defend" the Constitution. As Professor Akhil Reed Amar describes in America's Constitution: A Biography, Lincoln's actions are consistent with the notion of "executive Power" articulated in Article II of the Constitution:
"a power encompassing the right and duty to protect the United States as an ongoing venture... the first words of Article II themselves vested the president with a residuum of general authority to preserve, protect and defend the republic in emergencies--unilaterally, if need arose and Congress happened to be out of town."
Lincoln's emancipation of the slaves constituted a military measure permissible under presidential war powers to protect national security. As Professor Amar argues, "Emancipation would, in Lincoln's eyes, surely help win the war by encouraging Southern slaves to come to the aid of the Union Army and also by preventing the English government from entering into any diplomatic alliance with the Confederacy" at a time when the British may have capitalized on the division in America and become involved in the conflict, thus further imperiling the Union. As it turns out, the freed slaves flocked to the Union army en masse and the 180,000 black soldiers in the Union army may well have been the margin of victory in the Civil War that kept the United States in tact.
Sometimes, as we learn from Jefferson and Lincoln, upholding the Constitution and protecting the country it set out to establish might involve acts that appear to violate bits and pieces of it. We should talk about transparency, oversight, and striking a balance between liberty and security. But, as you hear serious and damning terms being bandied around, take note that the Constitution is not so black and white.
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