I am grateful to the Privacy and Civil Liberties Oversight Board for at least holding hearings on the subject of the massive warrantless surveillance. On March 19, 2014, the PCLOB held a hearing and subsequently produced a transcript so that we can hear the Obama administration’s point of view on civil liberties.
As you already know, the United States government has been storing huge amounts of information on the communications of law-abiding Americans, sweeping them up as supposedly incidental in searches for terrorists, then searching through those communications anyway in order to uncover evidence of pedestrian, non-terrorist law-breaking or legal but suspicious activity.
At one point, Board member Elisabeth Collins Cook asked a question that raised the constitutionality of such a process. After all, the 4th Amendment to the Constitution of the United States prohibits unreasonable search and seizure and insists that “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.” Read Cook’s question, and Deputy Assistant Attorney General for National Security Brad Wiegmann’s answer, for yourself:
MS. COLLINS COOK: Thank you for coming here this morning. We really appreciate your time on this and happy to be a part of this dialogue here.
I wanted to follow up on a couple of points that have already been raised, but first, we’ve talked about the Fourth Amendment implications of the collection. We’ve also talked about the fact that, or it is known that the information that’s collected can subsequently be queried. Do you consider that subsequent query a search for the purposes of the Fourth Amendment? And if not, why not?
MR. WIEGMANN: No, I would say that the search occurs at the time that the collection occurs. So when the information, as Raj just explained, from a particular selector is acquired by NSA, then that’s the time at which the search occurs.
Once you’ve lawfully collected that information, subsequently querying that information isn’t a search under the Fourth Amendment, it’s information already in the government’s custody.
The War on Terror proves its worth. If you can convince people that “terrorists” are out to get them and it’s OK to suspend liberties protection to hunt terrorists, you can collect everything in the hunt for the “terrorists.” Once you’ve got everything, you can search through it all without protection. Without probable cause.
That’s not exactly right, of course. “You” doesn’t mean you. It means your government. The U.S. government has after more than two centuries obtained general search powers. In the 1700s, general warrants so upset American colonists that they started a revolution and wrote the Fourth Amendment to stop them. The British are back; King George has won.