Find The Big Fib In The NSA's Lack Of Concern For Foreigners

from the read-your-constitution dept

Usually, the NSA’s whoppers are so ham-fisted everyone knows them for falsehoods. And if there’s any question, you can usually rely on the fact that when the agency’s lips move, it’s stretching the truth so far that it’s as good as a lie.

But from the start of Snowden’s revelations, one of the NSA’s tall tales has differed vastly from the others. It’s so subtle and ubiquitous, such a consummate Big Lie, that even the surveillance-state’s fiercest critics haven’t spotted it.

Can you? Let’s play Find the Fib with this testimony to Congress last June from Deputy Attorney General James Cole (though, to be fair, he doesn’t state the Big Lie outright but only implies it in the phrases I’ve emphasized):

“[T]here’s a great deal of minimization procedures that are involved here, particularly concerning any of the acquisition of information that deals or comes from US persons. As I said, only targeting people outside the United States who are not US persons.”

Want another hint? Check out the letter Director of National Intelligence James Clapper wrote Sen. Ron Wyden, though he too merely implies the Big Lie:

“There have been queries … using US person identifiers, of communications lawfully acquired to obtain foreign intelligence targeting non-US persons reasonably believed to be located outside the United States … These queries were performed pursuant to minimization procedures approved by the FISA court and consistent with the statute and the Fourth Amendment.”

Yep, those are my emphases again — and I included “Fourth Amendment” because that’s the biggest clue of all. Here’s the text of that strangled, mangled, moribund member of the Bill of Rights:

“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.”

Anyone see notation there about “US persons” and “non-US persons?” Yet for basically its entire existence, the NSA has pretended that the Fourth prohibits the government from searching American citizens without a warrant (not that that’s stopped the spooks) while authorizing it to search the rest of the world willy-nilly.

But the Fourth’s language is so clear that even Clapper should comprehend it: without a warrant, the government may not “violate” anyone’s “person, house, papers, and effects.” Whether he’s Australian or American, from Utah or Uzbekistan, living in or visiting Mexico or Massachusetts is irrelevant.

“Wait a minute!” the NSA’s bureaucrats sneer. “‘People’ is just a synonym for ‘citizens.'”

Wrong. The Founding Fathers wrote “citizen” when that’s what they meant (remember, most of these Dead White Men were fluent in Greek and Latin, which is to say they understood and used language precisely). And though they employ “citizen” eleven times in the body of the Constitution, they mention only “people” and “persons” in the Bill of Rights. For example, when delineating the requirements for election to the House of Representatives, the Senate, and the presidency, the Constitution specifies the minimum number of years each official must have been a citizen.

But when the Constitution concludes, and its amendments begin, “citizen” goes on hiatus. As you may recall from high-school history, the Anti-Federalists insisted on adding ten amendments to the Constitution, the partial list of liberties known as the Bill of Rights. Anti-Federalists distrusted and loathed government, even the Constitution’s severely limited one: they eerily, accurately predicted today’s creeping totalitarian state and tried to protect themselves with a written guarantee that the government would never restrict their speech, disarm them, spy on them, etc.

The Anti-Federalists also realized that politicians and bureaucrats powerful enough to silence, disarm, and spy on foreigners will certainly pull the same stunts at home. That’s why the Bill of Rights consistently says “people,” as in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The nationality of the government’s victim doesn’t matter: politicians and bureaucrats may not silence, disarm, or spy on, etc., anyone. Then, bingo, when the Bill of Rights ends and nationality becomes pertinent again in the Eleventh Amendment, “citizen” pops up like clockwork.

Of course, at this point, discussions of the Constitution are somewhat academic: our rulers have amply demonstrated their disdain for it and us. But, unlike Sen. Dianne Feinstein or German Chancellor Angela Merkel, we should be as livid when the Feds spy on others as when they spy on us. The Constitution clearly, adamantly prohibits both.

Becky Akers is the author of two novels, Halestorm and Abducting Arnold. Both are set during the American Revolution, when Peeping Toms were horsewhipped rather than handsomely paid to spy on citizens.

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Comments on “Find The Big Fib In The NSA's Lack Of Concern For Foreigners”

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36 Comments
Anonymous Coward says:

"People" is also used in the Preamble

“We the people, in order to form a more perfect union…”

The use here makes a strong case for the synonymy between “people” and “citizens” throughout the rest of the constitution.

I think ultimately the supreme court will have to decide whether 4th amendment protections extend to non-citizens. It would be interesting to see how the other amendments in the Bill of Rights extend to foreigners, and ultimately I think it is consistent with the spirit of the document. But that will be up to the court to decide.

Ed the Engineer says:

Re: "People" is also used in the Preamble

I would argue the other way round. “We the people..” refers to the people living in the colonies at the time. They are not “citizens” of the United States, because as of the writing, the United States did not exist, so the people could not be citizens. Once signed, the people became citizens. At the time of the bill of rights, citizens existed, therefore the demarcation was much more significant.

Anonymous Coward says:

Re: "People" is also used in the Preamble

It simply doesn’t make any sense to equate people and citizens in this context. If people were referring to citizens only, that would mean any non-citizen in the United States accused of a crime would not be subject to due process, which I would hope everyone would agree is completely ridiculous.

ethorad (profile) says:

Re: "People" is also used in the Preamble

I wouldn’t go so far as to say it means that people=citizen, as citizen could have a higher standard of entry. For example age, status, gender, race, wealth, etc have all been used as a qualification for the full rights of citizenship. “People” is a broader classification.

However I do think the use of “the” in the term “the people” means it is referring to a specific group of people, rather than everyone in the world. If it meant everyone then it would say “the right of people to be secure …”. By using the it then means that the right of this specific group of people. Which would presumably just mean US persons.

IANAL, and in particular IANACL. Indeed IANAUSP …

saulgoode (profile) says:

While I think the NSA’s targeting of non-citizens outside the U.S. is misguided and generally amounts to gross incompetence in performing their job, I disagree that it violates the Constitution.

The Supreme Court has ruled that Constitutional protections do apply to non-citizens*, but they still need to be within the jurisdiction of U.S. law to fall under those protections.

* http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=163&invol=228

John Fenderson (profile) says:

Re: Re:

And I believe that it does violate the Constitution, for pretty much the same reasoning as the article states. Fair enough.

Two points, though: first, although what the SC has to say settles the matter in terms of law, I don’t think that it settles the matter in terms of truth. Just because the SC says something is Constitutional doesn’t automatically mean it really is Constitutional. Even the SC has reversed themselves a number of times on what is or is not Constitutional.

Second, the behavior of the US from the latter part of the 20th century to the present day clearly shows that it considers the entire planet to be within the jurisdiction of US laws.

Pragmatic says:

Re: Re: Re:

That’s the scary part.

Now read this and get even more scared: http://www.informationclearinghouse.info/article3249.htm

The phrase that pays:

“Since today?s peace is the unique product of American preeminence, a failure to preserve that preeminence allows others an opportunity to shape the world in ways antithetical to American interests and principles. The price of American preeminence is that, just as it was actively obtained, it must be actively maintained” (p. 73, Rebuilding America’s Defenses).

I’d be interested to learn what Thomas Donnelly, Donald Kagan and Gary Schmitt believe American interests and principles are.

Donglebert The Needlessly Unready says:

the US was still growing and gaining citizens all the time

Even though people living outside the USA borders as they were may not have actually had those rights, the BoR essentially requires the US government to recognise that they should (and, legally, do in the eyes of US justice).

Surely that’s one of the prime justifications used by the US in their “democratisation crusades” in the Middle East, etc?

beltorak (profile) says:

But it’s not just “people”, it’s “the people”, and as others have pointed out “the people” refers to a specific group, namely those that are mentioned in the preamble – “We the people, in order to form a more perfect union…”

But I like the reason for the argument. There are certain rights that we should never abridge. Otherwise you can go back and look at the amendments to start committing atrocities with impunity. For example, an excerpt from the first amendment to highlight the problem of always equating “the people” with citizens:

Congress shall make no law … abridging … the right of the people peaceably to assemble….

Foreigners with valid visas having a get-together after mosque (can’t break up the religious ceremony itself because that part of the first doesn’t mention “the people”) or in front of home depot? Gather up a few cop buddies and go hose them down till they depart. Perfectly legal.

tl;dr you can make the argument that “the people” should be broadened in some senses, but I think that for the most part it does clearly mean “citizens”.

[snark]
For someone trying to use the argument that the founding fathers payed closer attention to language having an education that covered latin and greek, you missed the use of the definite article.
[/snark]

Wig says:

Punishment or Protection?

Let me see if I get this:

If I break US (copyright) law, but not the law from the country that I live in, the US will pretend US law applies to every human on the planet and come get me? (anyone remember Richard O’Dwyer)

But the US laws that would protect me (and due process), don’t apply to me as a foreigner?

How’s that for hypocrisy…

Not Given says:

We the People

The preamble of the Constitution has been referred to a couple of times in the above comments, but with an important prepositional phrase cut out (of the United States.)

“We the People of the United States, in Order to form a more perfect Union…”

People/Person in the Constitution refers back to “We the People of the United States.” Or, the Constitution defines the relationship between the People, the states, and the federal government. The People have rights, and the Constitution defines under what circumstances the government can infringe on those rights. The 4th amendment describes how the gov’t has the power to infringe on the People’s privacy rights to their homes, etc. Obviously, a power that is being abused on a massive scale.

The supremacy clause:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land…

Treaties define the relationship between the United States on one side, and other nations and their people on the other side. These treaties are part of the supreme law of the land. When the federal gov’t infringes on the rights of the people of other nations, it should be in accordance to the treaties with those nations. Otherwise, the gov’t is violating the supreme law of the land.

All humans on earth have rights, and our Constitution and the treaties we are party to define when our government is unlawfully infringing them.

Anonymous Anonymous Coward says:

Amendment Time

I am imagining a preamble to a constitutional resolution.

Preamble:

Because the Supreme Court has it’s collective head stuck squarely in a very, very dark place, it is time to clarify some of the plain language of the Constitution so that even a black robed moron in a hurry could comprehend the plain meaning.

Amendment (what ever is next):

Person = human being and is not related to race, creed, nationality, etc.

Individual = person with some extremely narrow exceptions related to tax law and liability, but definitely not First Amendment rights.

Shall Make No Law = Prima Facia case for immediate review and revocation of any law Congress fails to test against this doctrine upon the complaint of any citizen.

Email = personal effects and/or papers

Computers and Cell Phones = personal effects and/or papers

Meta Data = personal effects and/or papers even if in a third parties hands

Personal Information = any data related to a person is owned by that person and may not be used or disseminated except upon the express written permission of that person and such exception may not be required for any service, even if held by a third party.

TOS = a non binding contract that may not in any way infringe upon any persons rights of any nature.

I am sure there are many I have missed. Please feel free to enhance and extend.

Mike Gale (profile) says:

This point is crucial

This is the most hopeful thing I’ve read in a long time.

I had been bamboozled by the bit dribble of politicians et. al. that the rules that guide them only gave a damn about their own Citizens. Let’s face it, that’s fairly true, of the inner concerns of individuals in question.

My respect for the US constitution grew when I saw this. Those founding fathers were a lot wiser than the mental midgets who pretend to carry the flame they lit. How would the midgets be judged the founders?

GEMont (profile) says:

When laws are written by criminals, only criminals are served by law.

I would suggest that the decision to allow spying on foreigners was done specifically so that the NSA could begin the process of internal policy shifting with the full intent of eventually spying on everyone.

In order that they might eventually spy on the USA, as they are doing today, they had to first come up with a publicly-accepted legal target for the process – foreigners.

Americans have always had a somewhat xenophobic attitude about people from other lands so it was easy to slide this kind of exception past anyone who was paying attention. As it was also the policy process of a top secret federal agency, hardly anyone was informed of the plan anyway.

Once the surveillance of foreigners was made legal, the internal policy expanded to include Americans who were linked to foreigners. This was also legally acceptable to those who were in charge of over-seeing the policy of the NSA.

Then, once that was accepted legally, it became policy to include Americans who had a connection to anyone who was linked to any foreigner. The change was minimal and easily accepted by those who today might be labelled official NSA cheerleaders, rather than overseers.

Then once they got away with that legal sleight of hand, internal policy shifted again to include Americans who had any connection to anyone who had any connection to anyone who was linked to any foreigner.

By this point, almost every american would be caught in the net and it would still be legal, because the people approving these changes did not “think” beyond what they were told and the NSA continuously lied to them about its actual operation in order to gain their legal approval. In most cases, the cheerleaders would have preferred to be lied to anyway, so they would not have to “think”.

Exactly as it stands today.

Its pretty much the same as what a salesman calls “getting a foot in the door”. And its pretty much the same process as is used by corporate paid legislators to weaken laws against corporate profiteering, monopolies, racketeering, etc., by creating poorly written laws purportedly to protect children, women, the environment, desert turtles, etc., then re-interpreting those laws once they’re on the books to fulfill their true purpose.

It should be considered as criminal activity, but sadly, its accepted as standard operational procedures now that corporate bribery – lobbying – is also legally accepted.

America needs a total rewrite of its laws, including the elimination of about 80% of what is currently on the books.

Until then, you might as well get used to criminals making laws, and stop all your bitching, because nobody at the top is listening.

They’re all too busy counting your money.

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