Can the US Government Spy On Us?

Can the United States government spy on you? The answer used to be "no", in all but a few limited circumstances. But things have changed post 9-11. Now the legal aspects have been blurred. The government has been spying, and arguments can be made on both side as to whether this activity is illegal or not. Thus, the time has come for the Supreme Court to weigh in on this issue, or for the relevant laws to be modified.


The Fourth Amendment protects the privacy of all citizens. In order for government authorities to conduct surveillance, they must go to court and establish probable cause that a crime has been committed or is about to be committed. This is what the language "No warrant shall issue without probable cause" has always meant. Our democracy has always been based on a series of checks and balances. No one branch of government can theoretically ever become so powerful as to override the others.


In 1947, an exception was carved out when Congress passed the Foreign Intelligence Surveillance Act. This legislation allowed the government to electronically eavesdrop on -Foreign Agents" physically within the United States. Nonetheless, a protection was put in place for law abiding citizens so that there would be no chance of abuse. A Foreign Intelligence Surveillance Court was set up, and agents of the F.B.I., C.I.A. or other intelligence gathering entity still had to go to the court to secure a warrant before they could invade an individual's privacy.


Then along came 9-11, and everything changed. The country had been savagely attacked and we did not know when or where the next blow was going to fall. A grave crisis existed, and steps had to be taken to ensure the safety of the country.


In the intervening years it has come to light that President Bush ordered the National Security Administration to eavesdrop on thousands of persons suspected of having a link to the terrorist network responsible for the 9-11 attacks. Was this justified in the name of protecting our national security, or was this an illegal invasion of privacy contravening the Fourth Amendment?


In a -Time of War," the President's powers are heightened to the extreme. Many times, decisions have to be made on the spot. One could argue that 9-11 plunged us immediately into war against the terrorists. Thus, President Bush could justify his actions based on his wartime powers alone. Obviously, time was of the essence in the surveillance work being carried on by the NSA. There was no time to go to the Foreign Intelligence Surveillance Court to obtain a warrant. If a critically sensitive call was missed, who knew what could happen? It could mean the difference between preventing the next attack.


Still, the NSA violated the law, or at least the spirit of the Foreign Intelligence Surveillance Act. There is a provision built into the legislation that contemplates the necessity for emergency actions. This provision allows a government agency the lawful right to eavesdrop without first obtaining a warrant where time is of the essence. But, and this is a big -but", the Court must be notified that such action was taken within 72 hours. This gives the government much more flexibility in doing the job they need to do, but it also retains the very important protections for citizens granted under the Fourth Amendment.


Sadly, the NSA and the Bush Administration did not see fit to comply with the 72 hour rule. They argue, however, that the nature of the intelligence work that has been on-going since 9-11 was better kept secret entirely. The work was too sensitive to divulge. They did not want terrorist agents to know in the first place that they were even doing such things. In fact, the whole program only came out into the light of day when it was leaked to the press.


Perhaps the NSA has broken the law, perhaps not. One thing we can agree on, however, is the fact that the Bush Administration has prevented any subsequent 9-11 type attacks on U.S. soil. It remains for the Supreme Court to put things into perspective, and for the Foreign Intelligence Surveillance Act to be modified to suit our changing world.