Bruce Fein on “Snowden the Patriot” and Fourth Amendment Erosion

While at UCLA Law School recently, former Reagan administrator and part of the muscle behind a class-action lawsuit to declare National Security Agency (NSA) surveillance programs unconstitutional, Bruce Fein, was asked to comment on one of the hottest questions of the day–Is Edward Snowden a patriot or a traitor?  As the Atlantic reports, Fein’s response was couched in the Fourth Amendment and what Fein believes to be the true spirit of patriotism.

His response to the question began with Thomas Paine, according to the Atlantic,

Patriotism was defined by Thomas Paine at the founding as a citizen who protects his country from his government . . .

and continued,

The spirit of the Fourth Amendment, the spirit of the country, was captured in William Pitt the Elder’s address to British Parliament in 1763[] . . . ‘The poorest man in his cottage may bid defiance to all the forces of the crown.  He may be frail.  The roof may shake.  The winds may blow through it.  Storms may enter.  Rain may enter.  But the King of England cannot enter.  All his forces dare not cross the threshold of the ruined tenement.’

Of course, Fein’s argument is that government surveillance programs are violative of the Fourth Amendment, which protects against unreasonable searches and seizures.  This violation, Fein says, is not remedied no matter how many terrorist plots are foiled.  As he says and the Atlantic reports:

Well, that’s an odd argument.  Maybe we should have the NSA or FBI go search the closets of every home in the United States, hoping that maybe Osama bin Laden’s cousin will be there.  And if they discover nothing it will be fully justified.

But, is the surveillance of telephony metadata by the NSA truly the same as searching a closet in one’s home, as Fein argues?  Or, as Professor Orin Kerr recently argued, is telephony metadata simply the telephone company’s “record of what it did” and not an individual’s property at all?

I also bring to your attention the Atlantic’s additional contention that the Fourth Amendment was eroded by the War on Drugs long before the NSA debacle.

The full article is linked here for your convenience.