The Feds Violated the Constitution but the Administration Won't Say How

The transgression occurred at the National Security Agency and involved illegal spying on Americans. The details? They're scandalously classified.

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For months, Senator Ron Wyden has been giving American citizens an extraordinary warning: The federal government is spying on us in ways that violate our privacy and would alarm us if we knew more, he insists, adding that he can't tell us any more because the details are classified.

Now Wyden has won a small victory. Thanks to his persistent efforts, he was granted permission to share with the public a small amount of previously classified information about the NSA's domestic spying. The most consequential revelation: "National Security Agency spy activities on at least one occasion have violated the Fourth Amendment protections against unreasonable search and seizure, according to a ruling by the U.S.'s secret national security court."

Put more succinctly, the federal government violated the constitution. How did the NSA transgress against our Fourth Amendment rights? Incredibly, that bit of information remains classified. Citizens aren't permitted to know the details of their government's confirmed misbehavior.

Julian Sanchez explains why secrecy is particularly problematic in this case:

It's cause for concern any time government exceeds the bounds of the Fourth Amendment, but it should be truly worrying when it's in the context of mass-scale spying by the NSA. Based on what little we know of the NSA's programs from public reports, a single "authorization" will routinely cover hundreds or thousands of phone numbers and e-mail addresses. That means that even if there's only "one occasion" on which the NSA "circumvented the spirit of the law" or flouted the Fourth Amendment, the rights of thousands of Americans could easily have been violated.
On this complicated, opaque subject, Sanchez is among the most informed observers in America. His best guess at what's really going on: The NSA is collecting and saving vast amounts of private date, like phone calls, emails, and text messages; and rather than asking whether the Fourth Amendment permits them to put all of this information on a hard drive, they're postponing questions about whether a search is constitutional or not until they want to query the database.

Says Sanchez:

This is a huge departure from what has traditionally been understood to be constitutionally permitted. We do not normally allow the government to indiscriminately make copies of everyone's private correspondence, so long as they promise not to read it without a warrant: The copying itself is supposed to require a warrant, except in extraordinary circumstances. It appears almost certain that a very different rule is in effect now, at least for the NSA.

It cannot be overemphasized how dangerous such a change would be. Traditionally, a citizen's right to private communication was either respected or violated at the time it occurred: Your rights would be violated in realtime, or not at all, and even in the lawless era of J. Edgar Hoover, only so many citizens could be spied on at once. Under this new regime, the threat to our rights is perpetual. Even if this administration and the next are scrupulous about respecting civil liberties, even if every man and woman currently employed by the NSA is noble and pure of heart, the conversation you have today may well be there for the use or misuse of whoever holds power in ten years, or fifteen, or twenty. Will the incumbent president in 2032 resist the temptation to hunt for dirt in online chats from his opponent's college years--showing greater restraint than so many past presidents? One must hope so--but better to design the rules of a free society so that such leaps of faith aren't required.
There is substantial disagreement among Americans about how best to balance privacy and national security concerns. The Obama Administration's approach is dangerous and illegitimate because they're preventing the citizenry from even knowing where on the spectrum we're operating. Many informed observers think we're doing something like what Sanchez has described. But the official secrecy surrounding current policy, whatever it is, makes debate impossible, even among U.S. senators on the committees with access to the most information. It is certainly antithetical to candidate Obama's lofty statements about the importance of transparency, and may be making many thousands of Americans vulnerable to future abuses. 

Surely if there's anything the executive branch ought to be forced to reveal, it's when a secretive bureaucracy has been found to have violated the constitution, whether intentionally or not. A government is likely to transgress against the document its leaders are sworn to uphold with more frequency and less worry if it can do so without ever being held publicly accountable for its crimes.

* This post originally presumed that the transgression itself occurred during the Obama Administration. In fact, the new surveillance law was enacted in the last months of the Bush Administration, so there's a chance that Bush presided over the violation and Obama has been hiding it from the public.