“Rethinking” the Bill of Rights? In Secret?

Recent revelations regarding the government's domestic spying are raising significant questions about the scope and breadth of the programs. Amid all of the questions, however, one thing is becoming increasingly clear: the government has been making significant decisions — in secret — about what is appropriate under our laws and Constitution.

A declassified 2001 document posted online by our friends at the National Security Archive and reported on by Politico shows that the government's continued refusal to allow the public access to opinions authored by the Department of Justice's Office of Legal Counsel (OLC) and significant rulings of the Foreign Intelligence Surveillence Court (FISC) are perhaps just symptoms of the government's over-all approach to defining our laws in secret.

The document reveals some of the government's internal thinking about how to align the nation's policies and procedures on signal intelligence, or "SIGINT," to the realities of the online world and within the constraints of the Fourth Amendment. Here is a critical portion of the 42-page document.

The Fourth Amendment is as applicable to eSIGINT as it is to the SIGINT of yesterday and today. The Information Age will however cause us to rethink and reapply the procedures, policies and authorities born in an earlier electronic surveillance environment.

Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws. But senior leadership must understand that today's and tomorrow's mission will demand a powerful, permanent presence on a global telecommunications network that will host the "protected" communications of Americans as well as the trageted communication of adversaries.

The Constitution is ultimately the law of the land, and is the social contract between us and the federal government. The meaning of the Fourth Amendment's protections against unreasonable searches and seizures cannot be changed by NSA officials or others in the government secretly "rethinking" their understanding of it.

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