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Law V. Safety: Balancing Domestic Surveillance's Legal Deficiencies Against the Necessity of Counterterrorism

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Law V. Safety: Balancing Domestic Surveillance's Legal Deficiencies Against the Necessity of Counterterrorism BearWorks MSU Graduate Theses Spring 2016 Law v. Safety: Balancing Domestic Surveillance's Legal Deficiencies Against The Necessity Of Counterterrorism Jeremy Kommel-Bernstein As with any intellectual project, the content and views expressed in this thesis may be considered objectionable by some readers. However, this student-scholar’s work has been judged to have academic value by the student’s thesis committee members trained in the discipline. The content and views expressed in this thesis are those of the student-scholar and are not endorsed by Missouri State University, its Graduate College, or its employees. Follow this and additional works at: https://bearworks.missouristate.edu/theses Part of the Defense and Security Studies Commons Recommended Citation Kommel-Bernstein, Jeremy, "Law v. Safety: Balancing Domestic Surveillance's Legal Deficiencies Against The Necessity Of Counterterrorism" (2016). MSU Graduate Theses. 2359. https://bearworks.missouristate.edu/theses/2359 This article or document was made available through BearWorks, the institutional repository of Missouri State University. The work contained in it may be protected by copyright and require permission of the copyright holder for reuse or redistribution. For more information, please contact [email protected]. LAW V. SAFETY: BALANCING DOMESTIC SURVEILLANCE’S LEGAL DEFICIENCIES AGAINST THE NECESSITY OF COUNTERTERRORISM A Masters Thesis Presented to The Graduate College of Missouri State University In Partial Fulfillment Of the Requirements for the Degree Master of Science, Defense and Strategic Studies By Jeremy Kommel-Bernstein May 2016 Copyright 2016 by Jeremy Kommel-Bernstein ii LAW V. SAFETY: BALANCING DOMESTIC SURVEILLANCE’S LEGAL DEFICIENCIES AGAINST THE NECESSITY OF COUNTERTERRORISM Defense and Strategic Studies Missouri State University, May 2016 Master of Science Jeremy Kommel-Bernstein ABSTRACT This thesis discusses whether the collection of metadata by the NSA, as revealed in 2013 by Edward Snowden, from domestic sources is legal and/or effective, and how to balance safety and liberty. The topic is both timely and important due to the potential for abuse that comes with domestic intelligence programs, as well as the risk of suffering a terrorist attack on U.S. soil. Research for this thesis included personal interviews with former NSA and CIA Director Michael Hayden, and reviewing numerous court cases, legal documents, and articles and books on the subject. There is significant evidence that the NSA’s mass collection of metadata violates the 4th Amendment, while the FISA Court fails to meet the Case and Controversy and impartial magistrate requirements of the Constitution. Alternatively, it can be argued that the Necessary and Proper Clause, the 3rd Party Doctrine, and the governmental responsibility to protect and defend the people outweigh such concerns. Questions of efficacy are almost impossible to fully explore due to the need to access classified information to do so, but many experts have declared that there is significant evidence that the programs addressed herein are effective in the fight against terrorists. The result of this research is that these programs do violate the law, but with minor tweaks or concessions they can operate fully within constitutional boundaries, and while they may not have enormous effects on counterterrorism, enough good has come from them that it would be improper to shut them down. KEYWORDS: intelligence, National Security Agency, metadata, domestic surveillance, 4th Amendment, FISA, War on Terror, Counterterrorism, USA PATRIOT Act This abstract is approved as to form and content _______________________________ Dennis J. Bowden, M.A. Chairperson, Advisory Committee Missouri State University iii LAW V. SAFETY: BALANCING DOMESTIC SURVEILLANCE’S LEGAL DEFICIENCIES AGAINST THE NECESSITY OF COUNTERTERRORISM By Jeremy Kommel-Bernstein A Masters Thesis Submitted to the Graduate College Of Missouri State University In Partial Fulfillment of the Requirements For the Degree of Master of Science, Defense and Strategic Studies May 2016 Approved: _______________________________________ Dennis J. Bowden, MA _______________________________________ Ilan Berman, JD _______________________________________ Andrei Shoumikhin, PhD _______________________________________ Julie Masterson, PhD: Dean, Graduate College iv ACKNOWLEDGEMENTS I would like to thank my mom Joanie, step-father Barry, and brother Jesse, who have always encouraged me and pushed me to be the best I can be, no matter what the circumstance. Mary, Dan, Kath, Steve, and Kelly, thanks for being family to me, even though you don’t have to be. Thank you to Dennis Bowden for being my advisor on this project and for first suggesting that I turn a paper for your class into something larger; without your help and guidance, this project would have been nearly impossible. Additionally, Ilan Berman and Dr. Andrei Shoumikhin deserve my thanks for agreeing to be involved in this project. Dr. John Rose also continually offered support and encouragement throughout my time in graduate school, and that has been greatly appreciated. Thank you as well to General Michael Hayden for donating your time to lend me your invaluable opinions and expertise. We may not agree on everything, but your arguments were always well reasoned and thought-provoking, and I came out of each of our meetings feeling as if I had learned and benefitted from that time. A special thank you to Dr. Matthew Light for having spent the last nine years pushing me to do more educationally, professionally, and personally; it has been invaluable. Lastly, thank you Jess for all your support, encouragement, and love. The last two years would not have been the same without you. “It is not the fact of liberty but the way in which liberty is exercised that ultimately determines whether liberty itself survives” --Dorothy Thompson v TABLE OF CONTENTS Introduction ....................................................................................................……………..1 History and Background ......................................................................................................9 National Security Agency ........................................................................................9 Historical Violations of Americans’ Privacy and Attempts to Limit Domestic Intelligence Collection ...........................................................................................13 Edward Snowden Leaks………………………………………………………….21 Programs of Note ...............................................................................................................24 PRISM....................................................................................................................25 MUSCULAR .........................................................................................................31 BOUNDLESSINFORMANT ................................................................................35 XKEYSCORE........................................................................................................37 Additional Thoughts ..............................................................................................40 Legal Arguments ...............................................................................................................44 New Procedures under USA FREEDOM Act .......................................................47 Fourth Amendment Questions ...............................................................................52 Due Process—Fifth and Fourteenth Amendments ................................................58 Governmental Necessity ........................................................................................62 Miscellany ..............................................................................................................65 How Effective is Domestic Surveillance? .........................................................................68 Arguments for Effective Use .................................................................................71 Arguments for Ineffectualness ...............................................................................76 Conclusions ........................................................................................................................80 Bibliography ......................................................................................................................97 Appendices ......................................................................................................................111 Appendix A. Amendments to the Constitution of the United States of America (Excerpted) ...........................................................................................................111 Appendix B. Constitution of the United States of America (Excerpted) .............114 Appendix C. Executive Order 12333 (Excerpted) ...............................................119 vi LIST OF FIGURES Figure 1. Pew Research Center NSA Surveillance Poll ......................................................4 Figure 2. Overview of PRISM Capabilities .......................................................................26 Figure 3. Private Company Involvement in PRISM by Date ............................................28 Figure 4. Overview of MUSCULAR Capabilities .............................................................31 Figure 5. Overview of BOUNDLESSINFORMANT ........................................................36
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