NSA in 2000: Hey kids! Let's 'rethink' the Fourth Amendment

It's such a comfort to know that our intelligence agencies are so sensitive to constitutional rights.


The National Security Agency pushed for the government to "rethink" the Fourth Amendment when it argued in a classified memo that it needed new authorities and capabilities for the information age.

The 2001 memo, later declassified and posted online by George Washington University's National Security Archive, makes a case to the incoming George W. Bush administration that the NSA needs new authorities and technology to adapt to the Internet era.

In one key paragraph, NSA wrote that its new phase meant the U.S. must reevaluate its approach toward signals intelligence, or "SIGINT," and the Constitution's Fourth Amendment protections against unreasonable search and seizure.


"The Fourth Amendment is as applicable to eSIGINT as it is to the SIGINT of yesterday and today," it wrote. "The Information Age will however cause us to rethink and reapply the procedures, policies and authorities born in an earlier electronic surveillance environment."

Americans learned about one upshot of NSA's philosophy this week when Washington acknowledged two of its subsequent surveillance programs: One that tracks the phone records of millions of Americans and one that accesses the servers of several major Internet companies, including Facebook, Google and Apple. The revelations were first reported by Britain's Guardian newspaper and the Washington Post.

NSA's memo continued: "Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws. But senior leadership must understand that today's and tomorrow's mission will demand a powerful, permanent presence on a global telecommunications network that will host the 'protected' communications of Americans as well as the targeted communications of adversaries."

The quotes around "protected" appear in the original document.

Actually, the NSA has it backwards. You start with Fourth Amendment protections and then design surveillance programs to adhere to it - not the other way around. You don't "rethink" the Constitution. You don't design surveillance programs to get around it. And you don't twist the law into a pretzel in order to make the illegal, legal.

We have far too much of this attitude in Washington - that the Constitution is an impediment that must be defeated. From health insurance mandates, to national security programs, the Constitutional test isn't whether it adhere's to the letter and spirit of our founding document, but whether there is a believable work around that the Supreme Court will accept.

In that process, the Constitution becomes little more than a speed bump on the road to tyranny.

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