This is the way the world ends. This is the way the world ends. This is the way the world ends. Not with a bang but a whimper.
-T.S. Eliot, "The Hollow Men"
Some at this symposium suggested abandoning the concept of privacy altogether1 while others swept it away with the wave of a hand, dismissing the rubric of rules as the "fog of law."2 Outside this convening, some have long lamented the death of privacy3 and some radical theorists have argued it was never born in the first place.4 Still, others have refused to concede either existential ground and have fought valiantly to preserve this cherished value and what it protects.5 I, for one, am not ready to relinquish the idea of privacy, especially at this juncture in America's history.
Instead, we must reclaim privacy and re-emphasize its status as an integral component of human freedom and dignity in spite of the downward spiral of the law's conception of privacy; indeed, because of this spiral. If we do not do so now we may never be able to reclaim it. The intersection of national security "needs" and omni-surveillance technological capacity - marketed to us by corporations as great new tools of convenience to connect with our family, friends, and colleagues but also powerfully intrusive tools in the hands of the government - is simply too dangerous to essential liberty and to genuine security to be left largely unpatrolled.6
In my view, the constitutional touchstone of "reasonableness" is just too malleable to protect against the real dangers of the symbiotic relationship between the government and corporations, let alone the insatiable desire of the government to know more. And these were my fears before Google was a word, let alone an empire;7 before most of the transactions of daily life were transmuted into traffic on the Internet; and before a handful of murderers dramatically toppled the World Trade Center and smashed into the Pentagon in 2001.
Shortly after these world-altering events emerged at the outset of the 21st century, the Administration of President George W. Bush and Vice President Richard B. Cheney claimed "plenary"8 power, especially in the areas of search and seizure and other acquisition activities, in the name of "national security." This was a policy arena that had been governed by the Constitution's Fourth Amendment as well as a web of law - the Foreign Intelligence Surveillance Act (FISA),9 executive orders, and agency rules - that had been agreed to by the political branches in the aftermath of the last administration that had claimed unlimited power to conduct warrantless searches of Americans' communications in the name of national security, the Nixon Presidency.10
The main goal of this Article is to question what an unreasonable search and a reasonable expectation of privacy mean in the national security context in the aftermath of the changes made, or urged, by the Bush Administration. Rather than explore these issues abstractly, I want to view them through a lens from the past, not simply because "what's past is prologue,"11 but because I think this will illuminate some of the crucial issues obscured in the recent debates over the Bush Administration's warrantless wiretapping activities.
This examination is informed by viewing, in the new light of more recent information, declassified descriptions of the Signals Intelligence (SIGINT) activities during the period around the passage of FISA.12 Specifically, this Article will examine the contemporaneous statements of the National Security Agency (NSA) - in particular, a declassified Justice Department memoranda from 1976 by Dougald McMillan (the McMillan Memo)13 - about the controversial classified program of President Richard M. Nixon called Project MINARET.14 These admissions shed light on statements about Bush and Cheney's more recent classified and highly controversial program that was known as the "President's Program" (PP) until it was publicly rebranded as the "Terrorist Surveillance Program" (TSP). …