“Judge Alito’s memo regarding a purely domestic threat is completely different from N.S.A.’s efforts to thwart threats from foreign terrorist organizations,” said Steve Schmidt, a White House spokesman.
Where the NSA is expected to spy on foreigners, and President Bush has controversially authorized it to intercept communications between people in this country, and therefore under constitutional protection, and people overseas, whose human rights are not being recognized, Alito wouldn’t recognize any constitutional or human rights concerns whatsoever. Alito demonstrates a faith in the moral supremacy of politicians which the founding fathers certainly didn’t share. For Alito, there is no right of privacy, yet here is the fourth amendment:
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.
Supreme Court rulings cited in FindLaw’s annotations specifically relating to electronic surveillance clarify the meaning of unreasonable, pointing out that “the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required. Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government’s duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy. This protection was even more needed in ”national security cases” than in cases of ”ordinary” crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth. Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required.”
Meanwhile, The New York Times also reports, “The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, [current and former government] officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.”
So where the Supreme Court only allowed for warrantless searches “in a few narrowly circumscribed classes of situations,” the NSA, at Bush’s direction, gained access to switches providing huge amounts of data. And for Alito, it’s all good.