Date of Graduation

Spring 2016

Degree

Master of Science in Defense and Strategic Studies

Department

Defense and Strategic Studies

Committee Chair

Dennis Bowden

Keywords

intelligence, National Security Agency, metadata, domestic surveillance, 4th Amendment, FISA, War on Terror, Counterterrorism, USA PATRIOT Act

Subject Categories

Defense and Security Studies

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.

Copyright

© Jeremy Kommel-Bernstein

Open Access

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