President Obama delivered a speech on Friday outlining his plans to address the widespread outrage over the domestic surveillance activities of the National Security Agency. However well-intentioned, the president’s proposals indicate he just doesn’t get the constitutional notion of delegated powers.
Implicit in the Fourth Amendment is the principle that the government should remain powerless unless and until an individual is reasonably suspected of having committed a crime. It isn’t even allowed to search one’s person or papers (viz. phone records, emails) to collect the proof it needs until it persuades a judge that it has probable cause.
The only reason the Fourth Amendment offers any protection is it prescribes an adversarial process. The judicial branch is predisposed to refuse to issue a warrant until the executive branch provides sufficient evidence of probable cause.
Furthermore, the judiciary represents a separate branch of government with its own independent powers. When the judge refuses to issue a search warrant, it’s not a recommendation. It’s an order for the executive branch not to search.
Most importantly, court proceedings are supposed to be held in public, so the people can verify directly that the courts administer justice and their orders are followed by the executive.
Thus, the courts check the executive and the people check the courts. Both the executive and judicial branches are bound by Congress, which is checked by the people via the Constitution.
All of these checks rest upon the assumption that power will be abused if it is not forcibly limited. In the president’s own words, “it is not enough for leaders to say: Trust us.”
These checks and balances don’t exist under current FISA law. The FISA court operates in secret, so the people aren’t there to verify directly that they administer justice properly. Neither can they see for themselves that the executive actually carries out the court’s instructions.
Supposedly, congressional oversight of the FISA court allows indirect supervision by the people, through their representatives, but that doesn’t compute, either. “It is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions,” said James Madison of Congress.
The president announced several initiatives that purport to address these issues. However, rather than a call to restore the adversarial relationships necessary to do so, they all amount to executive orders to his own subordinates:
“First, I have approved a new presidential directive for our signals intelligence activities both at home and abroad. This guidance will strengthen executive branch oversight of our intelligence activities.” [emphasis added]