Few people would quarrel with the view that the president’s primary duty is to protect and defend the United States. But that is not what the U.S. Constitution actually says. Article Two, Section One, Clause Eight of the Constitution states that before the president can take office, he must take an oath to “preserve, protect and defend the Constitution of the United States.”
This is not just a technicality. Under our constitutional republic, the first question to ask of any federal program is not whether it might be effective. The first question is whether the program is constitutional. If the program violates the Constitution, then the executive branch cannot implement the program. Our founders enacted the Bill of Rights because they understood the dangers of unchecked governmental power.
For years, the National Security Agency has been violating the Fourth Amendment rights of all 317 million Americans, including more than 38 million Californians, through its searches and seizures of our phone and other electronic records. The NSA knows what phone numbers you dialed, who called you, when the calls were made and the duration of the calls. Media investigations have revealed the NSA has also collected vast amounts of electronic data, including emails, text messages and other internet traffic.
The Fourth Amendment is straightforward: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”
The only way the NSA — or any other governmental agency — can seize your private information is by a specific warrant issued by a judge based on probable cause. The NSA has failed to secure individualized warrants against all Americans. That’s because it can’t. Americans do not become reasonably suspicious simply for making and receiving phone calls.
Not only is the NSA’s massive dragnet unconstitutional, the NSA has produced little to no evidence that the program has been effective.
In response to the NSA’s mass violations of our civil liberties, last week we introduced Senate Bill 828 as an emergency measure, meaning it would take effect immediately once signed into law. This bipartisan legislation would prohibit state agencies and officials from providing material support to the NSA unless a specific warrant has issued. Titled the Fourth Amendment Protection Act, similar legislation also has been introduced in Arizona and recently replicated in Oklahoma. Several other states are considering similar legislation.
At a minimum, the president needs to stop the NSA’s unconstitutional bulk data seizure program. He also needs to reform the Foreign Intelligence Surveillance Court, a secret star-chamber process in which judges only hear arguments made by the NSA.
To restore confidence in our nation’s intelligence agencies, the president should issue a directive instructing intelligence officials that their first allegiance is to the Constitution. He should also remove or at least discipline the director of National Intelligence, James Clapper, Jr., who lied to Congress last March by denying the NSA collected data on millions of Americans. Our democracy cannot function if intelligence officials believe they have free reign to lie to the public.
As the president considers what reforms to make, we hope he keeps in mind that the last time our federal government violated the Constitution on a mass basis in the name of national security, more than 100,000 Americans were rounded up and interned.
State Sen. Ted Lieu, D-Redondo Beach, represents the 28th District. State Sen. Joel Anderson, R-Temecula, represents the 36th District.