In contrast, Obama never mentions the 4th Amendment’s demand that “no warrants shall issue, but upon probable cause … describing the place to be searched, and the persons or things to be seized.” This was the Revolutionary generation’s serious contribution to America’s constitutional legacy, not the precedent set by a “small, secret surveillance committee.” What is more, a district court judge recently invoked the amendment to condemn the NSA’s indiscriminate data-gathering, providing a vehicle for litigation that will probably reach the Supreme Court.
Obama has no right to sit on the sidelines until the high court tells him what the Constitution means. The president is under an independent obligation to determine that his actions are legitimate. And, as a former professor of constitutional law, he is in a good position to explain why the NSA isn’t violating the amendment’s demand that the government describe the persons and things involved in its data grabs. My point has been reinforced further by the federal Privacy and Civil Liberties Oversight Board, which issued a majority report Thursday that emphasized the seriousness of the constitutional issues.
But alas, he simply refuses to talk about the 4th Amendment, asserting that the “challenge … is getting the details right.”