This week former Florida governor and likely 2016 presidential contender Jeb Bush announced what he considers the best thing about Obama’s presidency: the continued bulk collection of telephone metadata. Bush’s praise for this program demonstrates a troubling disregard for the constitutional limits placed upon the federal government. The Republican mainstream’s willingness to sacrifice the civil liberties of Americans in order to feel more secure is indefensible.
On Tuesday Jeb Bush said, “I would say the best part of the Obama administration has been his continuance of the protections of the homeland using the big metadata programs, the NSA being enhanced.” The bulk metadata collection program was authorized by the Patriot Act, which President George W. Bush signed into law, and that Congress and President Obama extended in 2011. The program involves the NSA’s collection of all phone records from the major telephone providers. The NSA then uses its bulk database to search through and look up phone records as the government seeks to prevent acts of terror. The NSA seeks warrants from the FISA Court to conduct surveillance activities. The FISA provides generalized warrants requires phone companies to surrender all call records indefinitely into the future. By offering these types of warrants, the FISA Court has made a mockery of the text and spirit of the Fourth Amendment while they attempt to craft the illusion of complying with it.
The Fourth Amendment reads, “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 FISA Court warrants cannot reconcile the requirements of both probable cause and particular description of the place to be searched and things to be seized. If we accept that the bulk collection of telephone metadata into eternity is particular enough (though that is dubious), there is no probable cause for the seizure of all the records, but likely a very minuscule portion of them. If we accept as probable cause the strong suspicion that terrorists are conducting activity through telephones, the generalized orders do not particularly describe which suspected records are to be seized. Generalized warrants do not satisfy the requirements of the Fourth Amendment. In fact, the FISA Court has effectively withdrawn Fourth Amendment protection from an area of society by allowing continuous eternal government seizures of these records without the requirement of obtaining warrants in the future.
Jeb Bush further stated that under the Obama administration “there has been a continuation of a very important service, which is the first obligation of our national government is to keep us safe.” This claim is doubtful. Of course, national security was one of the chief purposes in forming the federal government, but it was not the only purpose of the government and this concern does not automatically override all other purposes, such as the protection of civil liberties. In fact, the Declaration of Independence proclaims that governments are instituted among men to secure the rights of life, liberty and the pursuit of happiness. Thus government’s first obligation may not be “to keep us safe” as Bush puts it, but to secure the inalienable rights of man. In addition, the Founders clearly concluded that security was not to trump all civil liberties. That is why they adopted the Bill of Rights, including the Fourth Amendment. Nothing in the text of the Constitution or the Bill of Rights justifies overruling the limitations of the Fourth Amendment by a vague appeal to national security. In fact, these appeals to security were used to justify the types of British seizures the Fourth Amendment was designed to prohibit. No doubt we would be even safer if we simply did away with the Fourth Amendment altogether and allowed federal investigators to invade and search every home freely. Yet in America we prize not only security, but civil liberties as well. Neither Jeb Bush nor any other politician gets to decide where to draw the line between these two priorities. The American people have already made the demarcation they saw fit in the Constitution and Bill of Rights. Jeb Bush’s beliefs about security are irrelevant. He does not have the authority to decide anew on an issue the American people have already decided through Constitutional amendment.