A few years ago, I vigorously defended the power of the government to use warrantless searches as an intelligence gathering tool against foreign nationals and their collaborators living on American soil who our intelligence agencies believed were enemy agents. I defended that action based on precedence (e.g.: forms of warrantless searches for intelligence purposes have been conducted since the Lincoln administration) and the fundamental lack of better tools (e.g.: federal laws do not adequately provide for domestic intelligence gathering methods). I stand by that defense, yet I also stand by my observation that it was only necessary because there were not better tools.
These years later, our intelligence agencies still do not have the better tools they need, and the government has taken even more obtrusive steps in its efforts to secure intelligence through ever-looser definitions of the laws that govern what it can and cannot do.
At the risk of taking a black eye from my opponents in the warrantless searches debate, I must now say that the government has proven incapable of using the powers it possesses by precedent and function in keeping with the ideals of federal republicanism, the guarantees of the Bill of Rights, and fundamental individual liberty. While I still believe that the warrantless search tool was one the government had the right to use in the proper time and place, I also now believe that the time has come for the people and the government to specifically spell out the type and scope of powers the government has to use for domestic intelligence gathering and to define a meaningful process for due process and appeal against intelligence gathered on US soil.
At the heart of this–partial–reversal in thinking is the following evidence:
“The FBI is building a database with the names and certain personal information, such as employment history, of thousands of U.S. citizens and residents whom a local police officer or a fellow citizen believed to be acting suspiciously. It is accessible to an increasing number of local law enforcement and military criminal investigators, increasing concerns that it could somehow end up in the public domain.”
If suspicion is the only threshold for placing anyone, especially citizens, under surveillance, then the system is broken. Suspicion is not probable cause, nor will it ever be, even in the shadowy world of intelligence gathering. This new threshold represents a fundamental change in thinking on the part of the government, and because it has proven itself so prone to abuse, it also represents a fundamental threat to liberty.
If we are going to bother to call ourselves a nation, we must accept that our government needs tools to act in our national interests, and effective intelligence gathering is one of those tools. Yet, we can now see that the government cannot be trusted to use loosely defined tools responsibly, so the time has come to create limits so that the liberty of the people can be preserved from government abuse.