Later this month, the Supreme Court will hear a case that could define the government’s ability to monitor innocent Americans’ international communications without a warrant. The lawsuit, Amnesty International v. Clapper, argues that the Constitution bars the National Security Agency from listening to or reading Americans’ international conversations and emails without court oversight, even if Congress blesses the NSA’s actions.
Unfortunately, the government has tried to block the courts from ever reaching that constitutional issue, arguing that unless the plaintiffs can prove they will be monitored (which is impossible, since the list of who is monitored is classified), they cannot sue. Now that threshold question has reached the Supreme Court. Based on our combined six-plus decades of experience working at the NSA, we are sure there is only one just outcome: The justices should let this case proceed, giving the courts the opportunity to determine whether the executive and legislative branches have gone too far.
Part of the Defense Department, the NSA was created to listen to and analyze foreign communications to protect our nation from threats outside our borders. Today, it is bigger than the CIA and FBI combined. For decades, those of us inside the NSA prided ourselves on our respect for the Constitution. Our touchstone was the Fourth Amendment’s protections against unreasonable searches and seizures and its guarantee that warrants could be issued only with probable cause and against specific targets. Whenever we suspected that an American abroad or someone inside the United States might be involved in terrorism or espionage, we carefully gathered the evidence and presented it to the Foreign Intelligence Surveillance Court, which meets in secret to protect classified information. Only if that court gave us permission would we monitor an American’s communications.
Then came the horrific crimes of Sept. 11, 2001, and we lost our moorings. Shortly after that terrible day, President George W. Bush authorized the NSA to wiretap Americans’ international communications without any warrant, suspicion of wrongdoing or court oversight at all. The Bush administration managed to keep this secret for years, but inside the NSA, we knew what was happening. Together with large numbers of our colleagues, we objected to the abandonment of constitutional protections. We were told to mind our own business. But this is exactly the kind of intrusion into our private lives that the Founding Fathers wanted to prevent. We resigned in protest.
The NSA continued to ignore the law and the Constitution until it was outed by media reports in 2006. Initially, Congress cried foul. But two years later, legislators turned their backs on the rule of law and passed a new statute – the Foreign Intelligence Surveillance Act Amendments Act – to rubber-stamp the warrantless wiretapping program. (Congress is currently considering whether to renew the law, which expires at the end of this year.) The American Civil Liberties Union challenged the law’s constitutionality on behalf of human rights, media and legal organizations that depend on confidential communications to do their work. But more than four years later, the case is still in its initial stages and far from dealing with the real issue: whether the government should be allowed to listen to and read Americans’ conversations and emails without any suspicion that we have done anything wrong – and then store those communications forever.
The NSA cannot be trusted with this power. No agency should be. Since 2001, the NSA has been willing time and again to throw the Constitution overboard and snoop on innocent Americans who are not suspected of any wrongdoing. Using shockingly fast machines called NARUS devices, the NSA can monitor virtually every single phone call, email and text that passes through the United States. The agency can make a mirror image of all those communications, then funnel those copies to massive data vaults. When it wants to, the NSA can then go through and compile a dossier on each and every one of us. That would be well and good if the agency followed the law and tracked only suspected terrorists. But it does not. Under the warrantless wiretapping program and now the FISA Amendments Act, the NSA conducts blanket, dragnet surveillance of Americans’ international communications, even when there is not even a hint that we’ve done something wrong.
The framers established our independent courts to be the final bulwark of liberty. They recognized that the political branches – Congress and the president – cannot be relied on alone to protect our rights, particularly in times of crisis. That is as true today as it has ever been. Threats to national security cannot be an excuse to throw out the very system that has been our nation’s strength for more than 200 years. We cannot allow the rhetoric of fear to justify abandoning our Constitution.
Bill Binney worked at the NSA from 1965 to 2001. J. Kirk Wiebe worked at the NSA from 1975 to 2001.