The Snowden Case: Big Brother Obama?

In the saga of Edward Snowden — the young American who has revealed to the world the mass espionage carried out by the National Security Agency — the media has substituted the far more pertinent question about the constitutionality of the program for the question of whether the program violates the interests and the rights of the countries allied to the United States. Choosing to recount Snowden’s hijinks, still trapped in Moscow, the media are de facto censoring the more general question. Let’s overlook the formal and hypocritical European “reactions,” among them the reaction of Italian Foreign Minister Emma Bonino differs, who has restricted herself to saying that she “has trust” in our American friends, and let’s concentrate on the constitutionality of the PRISM program.

The response of Georgetown University professor Randy Barnett in the Wall Street Journal is blunt: The indiscriminate accumulation of information on telephone conversations and electronic correspondence violates the Fourth and Fifth Amendments of the Constitution. The reason is simple: The Fourth Amendment is extremely specific in indicating that “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.” “Probable cause” and “describing the place to be searched, and the persons or things to be seized” are happening. In other words, the indiscriminate surveillance is unconstitutional.

If the federal court responsible for counter-espionage, FISC, has given its consent to the commencement of the PRISM program it could be that the latter is legal (even if it seems that the NSA or its contractors have extensively exceeded their mandate), but even if legal, it is secret and therefore certainly in violation of the Fifth Amendment, which guarantees a fair public trial, based on cross-examination, to all its citizens.

The Obama administration defended itself by stating that only “metadata” is collected, i.e., phone records of who is calling whom, or the addresses and the subjects of mail, not the contents. This defense, based on Section 215 of the Patriot Act established by the Bush administration and re-signed during Obama’s first term, is inconsistent: It doesn’t make sense to maintain that every telephone call or every piece of mail which every American receives or sends is relevant for a specific antiterrorism investigation.

The Fourth Amendment has been greatly mistreated in the last few decades, well before Sept. 11, in the name of the “war on crime.” Nevertheless, Americans do still have the right to presume that their decisions, their movements and their communications are not being recorded and analyzed by the government: Two fundamental Supreme Court verdicts, Griswald v. Connecticut (1965) and Roe v. Wade (1973), are based on the explicit recognition of the interest of the citizen to not reveal to public authorities the use of contraceptives (Griswald) and the right to abortion (Roe), because it refers to decisions which concern the intimate sphere of personal life.

Not only that: Before, during hearings in the Senate on privacy in 1988, Senator Patrick Leahy highlighted that “the trail of information generated by every transaction that is now recorded and stored in sophisticated record-keeping systems is a new, more subtle and pervasive form of surveillance.”

Shortly after, Congress passed a law which prohibited the disclosure of the identity of video shop customers, a law still in effect to this day, which is also applied to anyone who streams a film online on Netflix. Leahy’s intuitions have come true beyond the most pessimistic of forecasts.

Is it time to re-read the motto of the totalitarian government imagined by Orwell — “War is Peace. Freedom is Slavery. Ignorance is Strength” — and apply it to the Obama administration?