DAVID IGNATIUS: A fourth amendment for foreigners?

A sad irony of Barack Obama”s presidency is that a man who wanted to repair U.S. relations abroad has instead had to cope with damaging new strains with allies, following Edward Snowden”s revelations about National Security Agency surveillance overseas.

For the White House, the NSA disclosures have been a bottomless pit.

As Obama thinks about ways to limit damage and restore confidence among U.S. allies overseas, he’s said to be considering some intriguing possibilities – including privacy protections for foreigners.

One idea is to apply to foreign surveillance some of the “minimization” procedures the NSA uses, in theory, to shield the identities of “U.S. persons” whose “metadata” has been collected but aren’t targets of any terrorism or criminal probe. If the U.S. made credible minimization pledges to foreigners, the content of their personal messages couldn’t legally be accessed, even if the call records themselves were obtained.

Just considering this question is unsettling to U.S. intelligence officials, who for years have responded to queries about privacy issues with a bland dismissal. “The Fourth Amendment doesn”t apply to foreigners,” officials will say. The dirty little secret (not so secret anymore) is that the job of spy agencies is to violate other countries’ borders and laws to collect information.

One way for the Obama administration to draw a line under the NSA scandal would be to embrace a new international initiative to take privacy rights more seriously.

The Fourth Amendment promises that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” How might the spirit of that promise be extended to citizens of other countries?

“Are there to be two classes of people in society – those who “deserve” rights, and have them, and those who do not?” asks my friend Garrett Epps, a professor of constitutional law at the University of Baltimore, in discussing the Fourth Amendment in his new book, “American Epic,” which examines line by line what the Constitution actually says. His question of who’s entitled to privacy protection is at the heart of the NSA conundrum.

… A final puzzle is whether to increase the sharing of NSA surveillance information with peeved allies such as France and Germany. … Indeed, an undercurrent of the NSA scandals is resentment by friendly European and Asian nations at America”s special intelligence sharing with Britain and other English-speaking countries – known collectively as the “Five Eyes,” or, to the French, “les anglo-saxons.”

A complicating factor is that the U.S., perhaps paradoxically given the Snowden disclosures, is more open in its public oversight and discussion of intelligence than almost any other country.

In many European nations, intelligence secrets are still, for the most part, not discussed openly. That imbalance makes the post-Snowden dialogue difficult – a study in foreign hypocrisy as well as American excess.

David Ignatius’ email address is davidignatius@washpost.com.

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  • Winston Smith

    The 4th amendment doesn’t apply to anyone anymore. Post 9-11 we surrendered our rights to privacy for some Orwellian sense of security.