CHARLESTON, W.Va. -- Edward Snowden's disappearance into the recesses of Moscow's airport allows us to focus on the substance of what he revealed, a subject more important than non-stop coverage of his game of "hide and seek" with the U.S. government.
What earned Edward Snowden an indictment for espionage? His disclosure that the NSA has recorded millions of electronic communications of U.S. citizens, pursuant to a general warrant issued, in secret, by the so-called FISA Court, a court created by the Foreign Intelligence Security Act of 1978, which Congress enacted to set the ground rules for the government's collection of "foreign intelligence information," i.e., communications between "foreign powers" and "agents of foreign powers." Thus, we are reassured that the NSA's actions were approved by the FISA Court, itself created by Congress in legislation signed by the president and, therefore, totally legal.
However, the authors of the Fourth Amendment, in language that is prescient to the point of being spooky, had a very different idea:
"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."
In plain language, the Fourth Amendment prohibits precisely the kind of general warrant the FISA Court issued and which the NSA has used to gather information on a scale previously inconceivable.
The most serious argument in support of the NSA's daily interception of several million electronic communications is necessity, the idea that we need to endure this, at least briefly, in order to defeat a current threat to our national existence. This idea is encapsulated in the title to Richard A. Posner's 2005 book: "Not A Suicide Pact: The Constitution In A Time of National Emergency." Posner refers to the dissent of Associate Justice Robert Jackson in Terminiello v. Chicago, a 1949 case striking down a public speakers conviction for disturbance of the peace, as a breach of the First Amendment right to free speech. With a characteristically colorful phrase, Jackson complained that "the Constitution is not a suicide pact."
However, Posner, a thoughtful and prolific conservative writer (and associate judge of the Seventh Circuit Court of Appeals) does not attempt to sprinkle holy water on unconstitutional searches and seizures. It is, he concedes, a nonlegal "law of necessity" that would furnish a "moral and political but not legal justification for acting in contravention of the Constitution."