The coming constitutional crisis: rule of law versus national security

The impetus for this blog post was a late night conversation with my best friend Al who believes that the government now has the power to do what they want, and Congress and the people are past the point of caring. A position that is very, very scary if true.

On one hand you have the United States Constitution preserving and protecting the rights of citizens; and on the other hand you have Presidential Executive Orders and Congressional Mandates which appear to violate the Constitution when they are applied to individual cases.

The Constitution of the United States …

One of the most important tenets of the Constitution embodied in the First Amendment is a citizen’s right to petition the Government for a redress of grievances.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

… versus the need to surveil portions of the population in order to combat terrorism and protect our national security …

State Secrets Doctrine – Arising from a 1953 case, United States v. Reynolds, that saw the formal recognition of State Secrets Privilege, a judicially recognized extension of presidential power. <Source>

FISA Act – An act of Congress, signed into law by Jimmy Carter on October 25, 1978; which according to its acronym (Foreign Intelligence Surveillance Act) prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control).

USA Patriot Act – An act of Congress, signed into law by George Bush (43) on October 26, 2001 in response to the 9/11 attack; which, according to its backronym, was for the purpose of  Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001. The law significantly reduced reduced restrictions in law enforcement agencies' gathering of intelligence within the United States. <Source>

Both Acts have been subsequently amended to update and expand the authority granted to law enforcement and intelligence agencies.

The grievance …

The case before Judge White is an EFF [Electronic Frontier Foundation] lawsuit that accuses the federal government of working with the nation’s largest telecommunication companies to illegally funnel Americans’ electronic communications to the National Security Agency without court warrants — a surveillance program the EFF said commenced under the George W. Bush administration following 9/11. <Source>

The government’s response …  

Dismiss the lawsuit in the name of national security.

DOJ Lawyers Urge Dismissal Of Lawsuit Alleging Illegal Eavesdropping

Lawyers for the U.S. Justice Department urged a federal judge in San Francisco today to dismiss a lawsuit accusing the government of illegally conducting "dragnet surveillance" of Americans' telephone and e-mail communications.

Justice Department attorney Anthony Coppolino argued that allowing the lawsuit filed by five California citizens in 2008 to proceed would endanger national security. "We think these issues cannot be litigated without risking exceptionally significant harm to national security," Coppolino told U.S. District Judge Jeffrey White. Coppolino asked White to throw the case out of court on grounds of the state secrets doctrine, which permits the government to refuse to disclose evidence that would endanger national security.

Richard Wiebe, representing the plaintiffs, argued that the state secrets doctrine was "displaced" for purposes of the case by the Foreign Intelligence Surveillance Act and said the lawsuit should proceed under the provisions of that law.

"It is the proper forum that Congress created," said Wiebe, who contended that White could craft orders to protect confidential evidence during a future trial.

He urged the judge to "balance national security with the rule of law."  <Source: DOJ Lawyers Urge Dismissal Of Lawsuit Alleging Illegal Eavesdropping: News: SFAppeal>


For me, the issue is a paradox.

We want to be able to detect and deter those who want to harm the United States and its citizens.

However, to make connections between various communications entities in real time, you need to encompass the totality of communications in order to do pattern analysis. And this means everyone’s communications.

But wait – it get’s worse – it is likely that the terrorists will be speaking in a code (something like “going to play football tomorrow at the park”) only known to them. So the system has to use associations between communications points, voice analysis and keyword analysis compounding the problem with a staggering amount of data.  Since the amount of data processed is staggering, it is unlikely that anyone is listening to any particular conversation – and if someone was listening, there is the problem involving a shortage of trained linguistic interpreters.

But, because of the real time nature of the analysis technique and the lack of time to get a large number of  “probable cause” warrants, the system would fail to achieve its purpose if every intercept required a court action.

Bad times …

We know the government has been hyper-politicized and has a propensity to classify data that is embarrassing or indicative of government criminal activities. (example: DOJ Fast and Furious gun-walking allegations stonewalled by Presidential order and the alleged Benghazi transfer of weapons to known terrorists and enemies of the United States – again stonewalled by the Executive Branch).

So what is the answer?

One, you can’t deploy sophisticated technological surveillance tools with a legal system not prepared for the digital age. And,  two, you need to protect the Constitutional rights of citizens.  Therefore, I propose a solution.

  • Mandatory logs showing individuals who use the system and what the disposition of the data might be.
  • A mandatory classification period for intercepted information, after which it can be “grossly” analyzed by independent security analysts for misuse.
  • A mandatory data retention policy – including logs.
  • A mandatory jail sentence (no plea bargaining, no parole) for anyone caught using intercepted data for anything other than national security reasons, specifically criminalizing the use of intercept data for personal, political or commercial use.

Bottom line …

A society must rely on those who represent “We the People.” If our leadership is corrupt, it is likely that their interactions between citizens and others is likely to be corrupt. We need to reassure ourselves that our leaders are not pursuing a toxic political agenda which supports the ideologies of foreign sovereigns or a style of government not envisioned by the Founding Fathers.

I personally think that the Judge should appoint a “Special Master” with a security clearance to examine what has been done in the name of “We the People” and to report back if any of the information was used for purposed unrelated to national security. The Judge therefore should rule on the matter and as a matter of relief, set forth the test that the intercepted information be used for national security purposes and suggest to Congress that they enact a law criminalizing misuse. With periodic audits by the respective agency’s Inspector Generals – and making any cover-up a punishable offense.

It is time the Congress and the Judiciary exert their co-equal branch duties and check the expanding power of the Executive Branch.

And I suggest a donation to the Electronic Frontier Foundation ( which is attempting to bring law into the digital age while respecting the Constitution and the rights of citizens to privacy.

-- steve

“Nullius in verba.”-- take nobody's word for it!

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