In a vision of how America might have been different if the Supreme Court had not intervened in the 2000 presidential election, former Vice President Al Gore labeled controversial National Security Agency surveillance programs unconstitutional on Friday. According to Gore, who won the popular vote for president in 2000 but lost the Supreme Court in a 5-4 decision, the extent of the NSA’s surveillance “in my view violates the constitution. The fourth amendment and the first amendment – and the fourth amendment language is crystal clear.” Much of the NSA’s surveillance programs began under President George W. Bush, although they now require more court oversight than they originally did.
Gore added, in a likely reference to classified opinions handed down by the Foreign Intelligence Surveillance Court, that “[i]t is not acceptable to have a secret interpretation of a law that goes far beyond any reasonable reading of either the law or the constitution and then classify as top secret what the actual law is.”
While the full scope of the NSA’s surveillance is still unknown, we do know that the agency generated a massive database of phone records — i.e., which telephone numbers are dialing which numbers — and that a similar database of email data may exist. In the 1979 case Smith v. Maryland the Supreme Court held that the Fourth Amendment does not prevent law enforcement from capturing phone records similar to the ones being gathered by the NSA.
What makes the NSA’s surveillance different, however, is its sheer scope. It is unlikely that anyone in 1979 anticipated a world where the government could collect a database of every single phone call made over a large geographic area, or that they envisioned computers capable of analyzing the data in the way that the NSA now can. Some recent Supreme Court cases do suggest that the justices are willing to more robustly apply the Fourth Amendment when the government takes advantage of new technologies — GPS tracking devices, for example, are treated differently than merely assigning an officer to tail a suspect — so there is some remote possibility the Court could revisit Smith, at least in the context of the kinds of expansive databases at issue with the NSA programs.
Yet, even if a plaintiff challenging the NSA’s programs were to emerge victorious, it is not clear what the appropriate remedy would be. Normally, when a court finds a violation of the Fourth Amendment, the consequence is that any evidence obtained in violation of the Constitution must be excluded from a criminal trial. National security cases, however, do not often result in criminal charges being filed against a suspected terrorist. And, even when they do, the courts are typically reticent second-guess the executive on national security matters.
In other words, the only practical solution for Americans concerned about excessive surveillance will likely be legislation. As Gore states, “the Congress and the administration need to make some changes in the law and in their behavior so as to honor and obey the constitution of the United States.”