RUTHFULLY YOURS

“I know of no right to privacy in the United States Constitution,” says Gerald Walpin. “That is a phrase that has been thrown around that the Supreme Court for many, many years said didn’t exist… It doesn’t exist in the Constitution.” Walpin, a former federal Inspector General nominated by George W. Bush and confirmed by the Senate, prominent New York attorney, and author of the book “The Supreme Court vs. The Constitution,” sees the National Security Agency (NSA) as one of the most necessary organizations within the United States. “There is nothing unconstitutional about the NSA program, which merely determines whether somebody calls a number.”

Walpin is in the camp of one political and legal tradition, comprising about half of American citizens, that believes that surveillance programs like those of the NSA are the best way to prevent terrorism and save American lives. The other side is more skeptical, to say the least. They claim the right to privacy is fragile, and that national security programs are overbroad—usurping the privacy of the people while instituting surveillance programs that may not be effective. While neither side can reconcile their political differences, one thing is certain: a lengthy and contentious legal boxing match is unfolding, and the final rounds will likely take place at the podium in front of the Supreme Court.

The NSA surveillance controversy came to a head in June 2013, after the now infamous and exiled former NSA contractor Edward Snowden released a trove of classified documents detailing government surveillance programs to The Guardian. Headlines were bold—is Snowden a patriot or a traitor? The Internet was alive with angry and dubiously informed chatter. People yelled across dinner tables over what the President ought to do. The nation wanted to place blame; was this Obama’s politics or Bush’s? As it gets sorted out in the glaring public eye, the legal justification for United States national security policy will be tested in the courts as well. What’s more, the logical justification behind keeping the policies—that terrorism has been stopped because of them—is being called into question by the public and media.

“It seems to me that pure logic makes you determine that [NSA programs] are necessary,” Walpin says. “We know that there are many terrorists in the world, and they certainly don’t identify themselves as terrorists. So how do we find out if somebody is coming into the United States to perform a terrorist attack, or if somebody is in the United States already to perform the attack?” Walpin claims, along with Diane Feinstein—Chairwoman of the Senate Intelligence Committee—and many other politicians, that intelligence gathering is the only way.

For Kyu Ho Youm, Professor and John Marshall First Amendment Chair at the University of Oregon, public opinion, and even law, should default towards protecting privacy because national security laws can be over encompassing. “Almost always national security is overbroad, overstated,” Youm says. “That is why I believe that political security is more often involved than the true national security.” In Youm’s view, once privacy is infringed upon, it’s very hard to get back; it’s important to hold privacy rights in high regards because they are fragile. “If people don’t care that much about privacy, eventually history indicates that the price will be too high,” Youm says. “Once privacy is lost, the government will be the last to recover privacy for the general public.”

The NSA program in question, called PRISM, is quite simple and accounts for more than 90% of the NSA’s gathered data. If you call or e-mail someone in a known terrorist location, like Yemen or Afghanistan, the metadata (phone numbers, email addresses, ISP or phone provider, location, and time) of your communication is collected by the NSA. No actual content is monitored at this point, however. If an NSA analyst decides your call is suspicious, they can forward it up the chain of command eventually landing in the FISA Court. Created by the Foreign Intelligence Surveillance Act of 1978, the FISA Court is secret; it issues surveillance warrants and its activities were highly guarded until the Snowden leaks. “The Supreme court has previously determined that such following of phone numbers is constitutional,” Walpin noted. While the Court has upheld the legality of similar tactics like pen registers and mail covers, it has never tested the constitutionality of the once-secret NSA surveillance programs. That may change.

The Supreme Court will likely be getting involved after the ruling in Klayman v. Obama, the first case to publicly test the legality of NSA policies. The judge in the US District Court case, Richard Leon, ruled the programs unconstitutional due to Fourth Amendment violations. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval,” Leon said in his court opinion. He went on to say that James Madison, the author of the Constitution, would be “aghast.”

For Edward Snowden, revealing his documents to the press and protecting the privacy of the general public became necessary after the James Clapper incident. On March 12th 2013. James Clapper, the Director of National Intelligence, was asked by Sen. Ron Wyden, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper answered with a simple, “No sir.” Clapper was called out by the nation, and publicly apologized after admitting that he had misled Congress. Some members of Congress called for Clapper’s resignation. Snowden later revealed in an interview with NDR TV in Germany that, “seeing the Director of National Intelligence…directly lie under oath to Congress” was his tipping point. “That really meant for me that there was no going back,” Snowden said.

Proponents of the NSA say Clapper never should have been asked about classified metadata programs at a public hearing in the first place—that in that situation, Clapper had to lie. Still, some call for even more transparency: to reveal FISA Court opinions to the public. To Walpin, making that information public may help terrorists. “Why are we disclosing that? What I’m trying to understand is why does an order of the FISA Court becoming public help anybody’s civil liberties?” Walpin says.

To Youm, a completely transparent government is necessary for civil liberties. “The more we know about what the government claims to be doing, it will bring about a more healthy democracy,” he says. The problem still is proving the necessity of NSA programs with transparent governance. “Usually that kind of secrecy gives an opportunity for the government to manipulate whatever they claim,” Youm says.

“If you want to take that to the logical extreme, we ought to know the name of every undercover agent of the government. Of course that’s not correct,” Walpin says. “And the first obligation of the government is the protection of this country and its citizens.” The government now seeks public approval by complying with transparency requests while continuing to use surveillance programs. In August 2013, the Department of Justice released its so-called “White Paper,” a 27-page document detailing the legal justification for gathering of metadata about United States citizens. The document noted that all members of Congress were “on notice of this activity and of the source of its legal authority” when authorizing programs. Soon, it appears, the Supreme Court will make its judgment on the programs as well. Walpin thinks the Court will uphold NSA tactics as constitutional while adding with a laugh, “My crystal ball is never able to predict what the Supreme Court is going to do.”

President Obama’s legacy on the issue is not looking bright. Youm believes he isn’t as “sensitive or sensible” as he should be. But for Walpin, the issue is leadership. “We need a president who will stand up and lead, and explain to the American people why the NSA program is so important, and why it is protecting the lives of Americans,” he says. For Youm, regardless of political opinion and legal outcome, the public is in the know, and the importance is in their discourse. “At least there has been a lot more lively, vociferous discussion,” he says.