U.S. Constitution could keep state officials from going to jail for helping NSA


SECURITY, ANYONE?: President Barack Obama talks about National Security Agency surveillance Friday at a news conference in Washington, D.C.

By Josh Peterson | Watchdog.org

WASHINGTON, D.C. — Certain states are considering legislation that would criminalize helping the National Security Agency, but ironically, none other than the U.S. Constitution might stop to that.

Two days before President Obama was scheduled to announce reforms to NSA’s collection activities, lawmakers in Washington state last week joined the growing chorus of state legislators across the country looking to rein in the agency’s powers with whatever legal tools were at their disposal.

Basing their reasoning on what is called the Anti-Commandeering Doctrine, Washington state Rep. David Taylor, R-Moxee, and Luis Moscoso, D-Mountlake Terrace, dropped a bill that would criminalize state officials and state government contractors providing material support and state assistance to the federal government’s warrantless electronic surveillance activities.

While those concerned about the federal government’s electronic spying activities are quick to cite the Fourth Amendment as their defense, in this case, the U.S. Constitution also might side with the federal government in keeping a potential local lawbreaker out of jail.

Bradley Moss, a Washington, D.C.-based national security lawyer, told Watchdog.org in a recent interview that he believed the courts would view the debate as a “Supremacy Clause” issue.

The Supremacy Clause — Article 6, Clause 2 of the Constitution — defers authority to the federal government in the event that an actual conflict over power between the federal and local governments takes place.

“Given the existing precedent, it is my professional view that the courts would view this as a Supremacy Clause issue,” said Moss, “that it would preempt the Washington (state) statute, that you can’t criminalize actions by state officials attempting to coordinate with the federal government in a lawful exercise of its national security and foreign intelligence activities.”

Moss said that the issue was “tricky” from both a political and legal standpoint.

“That’s why that clause was specifically put there,” he said, “to prevent the state from obstructing the federal government’s ability to do what it is authorized to do by the Constitution itself.”

Contact Josh Peterson at jpeterson@watchdog.org and follow him on Twitter at @jdpeterson

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