A few months ago, when the Obama administration announced its plans to roll back the agency’s mass surveillance, it promised that it would do so in a way that would be consistent with the Constitution.
The president’s speech to the nation on January 16th said he would replace the agency with a “modern” version that would “implement the principles that have made the US the greatest nation on Earth.”
The new NSA would have the power to spy on people around the world, and would be overseen by a director appointed by the president.
It would also have to comply with the Fourth Amendment’s requirement that the government be “specifically authorized by a court to collect foreign intelligence information.”
A number of constitutional experts, including former federal judges Laurence Tribe and Neil Gorsuch, said that the administration was misreading the Fourth and Fifth Amendments, which guarantee that the US is not a “surveillance society” in which the government can monitor people without their consent.
“What is not in question is that the NSA has been engaged in mass surveillance of American citizens,” Tribe wrote in an essay last week.
“The government claims that these surveillance activities are necessary to combat terrorism and international terrorism, but there is no evidence that the intelligence collected has prevented terrorism.
The only possible purpose for the NSA to be spying on Americans is to gather intelligence about terrorist plots.
The Fourth Amendment does not prohibit the NSA from collecting information about terrorists and other foreign agents, but it does prohibit the government from surveilling people who are not a target of an ongoing investigation.”
Tribe argued that the Obama-era NSA was violating constitutional protections against unreasonable search and seizure, as well as the Fourth amendment’s prohibition on warrantless wiretapping.
In a tweet on Monday, the Washington Post’s Greg Miller said the administration’s proposal to replace the NSA with a new, modern version would violate the Fourth, Fifth, and the Constitution by creating a “national security state.”
Miller also noted that the new NSA could be used to spy “on foreign governments,” and argued that “any attempt to replace it with a modern version of the NSA is unconstitutional.”
The Post’s Miller also said that “no constitutional scholar has ever suggested that replacing the NSA by a modern surveillance system would be permissible, nor does he believe that replacing it with such a system would lead to constitutional violations.”
The Times and USA Today also pointed to a 2013 ruling by the 9th Circuit Court of Appeals in New York City, in which Judge William Alsup wrote that the “need for an agency to have the authority to engage in domestic surveillance is compelling” because “the agency must have the capability to conduct its business in a manner consistent with its obligation to protect Americans.”
A majority of the judges agreed.
Alsup also wrote that “the scope of the Constitution does not permit the creation of a new agency” that would collect data about Americans.
“We therefore hold that Congress has broad authority to create a new intelligence agency to perform functions traditionally performed by the intelligence community, to protect the nation against terrorist attacks, and to protect U.S. interests abroad,” the judges wrote.
“This agency is not simply a successor to the existing intelligence agency.”
Alsup went on to explain that it was “unnecessary to invoke the powers of Congress in the matter.”
The 9th circuit, however, did not find a way to limit the president’s authority to replace or reinstate the NSA.
Bill Walker, who was appointed to fill the vacancy left by Alsup, said on Twitter that he believed the NSA’s director should be someone “who can work well with Congress.”
The White House declined to comment for this story.
The New York Times reported on Monday that Alsup had not yet issued an opinion on the new proposal, and that he would not rule on whether the president should be able to replace Alsup or a different director, who is currently in charge of the FBI.
The administration’s plan has already sparked a backlash from privacy advocates.
Privacy and civil liberties groups have criticized it as too narrow, and argued for a stronger “transparency” regime, a process that would allow the public to know what information the NSA and other intelligence agencies have collected.
In his speech announcing the new plan, President Obama promised that “this new agency will not have any ties to the private sector or to the military.”
He said that instead, the new agency would have “the authority to collect data that is targeted to the communications of foreign governments.”
The proposed new NSA also called for a number of reforms to the way intelligence collection is done.
For instance, the president said the new intelligence service would have access to information about communications of Americans “for the first time” under a process called Section 702 of the Foreign Intelligence Surveillance Act, which was approved by Congress in 2008 and allows the government to collect communications about foreigners without having to get a court order.
The new spy agency would also be able “to conduct electronic surveillance on communications