This week’s court ruling regarding snooping on Americans by the National Security Agency brought to mind an oldie-and-not-so-goodie from Henry Kissinger. In 1975, when he was Secretary of State, Kissinger told the Turkish Foreign Minister, “Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’ But since the Freedom of Information Act, I’m afraid to say things like that.
“Yes, it was a play on the World War II motto of the U.S. Army Corps of Engineers: “The difficult we do immediately. The impossible takes a little longer.” Sure, it might have been good for a chuckle — until you remember that Kissinger previously had worked for a president whose disregard for the United States Constitution was a threat to our entire political system. And now, decades later, Kissinger’s quote is relevant as Americans again are faced with apparently egregious violations on the part of the federal government.
U.S. District Judge Richard Leon ruled that the NSA’s collection of metadata — primarily records of phone calls placed by citizens — is a violation of privacy. “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 the purposes of querying and analyzing it without prior judicial restraint,” Leon said. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”
The Fourth Amendment of the U.S. Constitution is the one that prohibits unreasonable search and seizure, requires probable cause to be demonstrated, and demands judicial approval before the government can conduct a search.
Leon’s ruling, despite his scathing rebuke of federal policy, does little to cramp the government’s style when it comes to collecting phone records. The case involved five plaintiffs, and while the judge ruled in their favor, the decision is limited only to their cases. All of that means the issue of the government spying on its own people almost certainly will eventually wind its way to the Supreme Court.
In the meantime, a coalition of high-tech companies such as Apple, Facebook, and Microsoft weighed in last week in an open letter to the White House: “The balance in many countries has tipped too far in favor of the state and away from the rights of the individual. This undermines the freedoms we cherish.” For many Americans, that is the issue at hand. While the government is collecting data under the premise of preventing terrorism — a worthy and necessary goal — it has yet to provide a convincing argument that archiving such phone records has had any such impact.
Precedent long has given the government great leeway under the guise of “national security,” and additional court battles promise to be lengthy and hard fought. National security is not something to be taken lightly, and Congress has demonstrated little desire to place legislative constraints on the NSA. But, as Edward Snowden, the man who revealed the secret spying, said in the wake of Leon’s ruling: “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”
Exposing government actions to the light of day is a time-honored American tradition, a hallmark of our society. And, as political philosophies go, it sure beats, “The illegal we do immediately; the unconstitutional takes a little longer.”