NSA’s PRYING (AND LYING) EYES
The revelations from former Booz Allen Hamilton analyst Edward Snowden about the National Security Agency’s data mining operations (followed by Administration admissions of those operations) have put Americans on notice that their government has been secretly conducting surveillance on millions of Americans, treating them as prosecutors do a criminal suspect, obtaining virtually all of their email correspondence and phone records. The NSA has done so with non-public authorizations granted by the highly secretive federal courts established under the Foreign Intelligence Service Act, the FISA Courts. Since at least April of this year, those courts have been authorizing huge domestic data mining operations, granting over 98% of NSA requests for access to Americans’ private communication. NSA is storing the data in massive computer centers with a new $2 billion facility under construction in Bluffdale, Utah that will sprawl over 1.5 million square feet and possess the capacity to hold as much as 5 zetabytes of data (the equivalent of all data in over 60 billion iPhone5s phones).
The NSA data mining operation when directed at millions of American citizens is the greatest violation of Fourth Amendment rights against unreasonable search and seizure in American history. In addition, the interception of private communication to monitor those whose emails contain buzz words that suggest views inimical to the Obama Administration, Congress, the federal agencies, or the military violates the freedom of speech and press because they are forms of content-based discrimination. The action is comparable to the eavesdropping conducted by totalitarian states, such as the former Soviet Union and present day communist China. Under the guise of fighting a war on terror, the federal government has achieved a major victory for the terrorists: acting against its own citizens, violating their civil liberties.
In March of this year, despite the fact that NSA’s domestic data mining operations were underway, NSA Director General James R. Clapper denied the existence of those operations in sworn testimony before the Senate Intelligence Committee.
Sen. Ron Wyden (D-Oregon): “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
NSA Director James R. Clapper: “No sir.”
Wyden: “It does not?”Clapper: “Not wittingly. There are cases where they could, inadvertently perhaps, collect--but not wittingly.”
He went on to say that “there are structures against tracking American citizens in the United States for foreign intelligence purposes” and that the NSA and CIA focus their intelligence gathering operations on foreign citizens, not on Americans resident within the United States.
Several members of Congress who were variously privy to the existence of domestic surveillance have defended the NSA, including President Obama, Senate Intelligence Committee Chairwoman Diane Feinstein and House Speaker David Bohner. They argue that we will be at higher risk of terrorist attacks unless we maintain these highly intrusive and extensive domestic intelligence operations.
The argument for depriving Americans in mass of their rights to privacy and against unreasonable search and seizure is unpersuasive in logic and law. No one could seriously argue that millions of Americans are cooperating with foreign terrorists in an effort to commit murder, mayhem, or property damage in the United States. Although there are many dedicated foreign terrorists who aim to achieve those objectives and may depend on the cooperation of conspirators in the United States, they number in the hundreds or, worst case, thousands, but certainly not in the millions.
Probable cause, necessary to justify grant of a surveillance warrant under the Foreign Intelligence Services Act, cannot exist without proof germane to specific foreign terrorists and specific American co-conspirators. Unquestionably, such evidence would never justify data mining of millions of Americans for whom there is no evidence whatsoever of active involvement in a conspiracy to commit terror.
Moreover, as many Americans know well from historic instances of IRS abuse of power and those recently revealed, the secretive and semi-secretive agencies of the government pose an ever present threat to American civil liberties. Those agencies must be closely monitored and checked or they can all too easily use the hidden powers authorized to attain political ends. No operations of government should be conducted in secret unless directly tied to actions that, if revealed, would enable those intent on the commission of crime or war to pose an immediate threat to life, liberty, or property.
The extensive information NSA is obtaining on millions of Americans by acquiring the content of and attachments to their email correspondence will variously be categorized by NSA software. Because the definition of “terrorist” necessarily embraces any potential enemy of the state, it is impossible for NSA categorization not to involve the categorization of Americans based on their criticism of the United States government. There is an overlap between those who are critical of the Obama Administration, Congress, the federal agencies, and the military and those whose criticism exceeds reason and enters the realm of active conspiracy to commit violent or destructive acts. Consequently, NSA software no doubt alerts NSA analysts to those critical of the government in a manner reminiscent of events in press reports from last year whereby patriot group members were identified by federal and local law enforcement as dangerous and deserving of added surveillance.
That kind of profiling of Americans by their government, categorizing those who harbor criticism in ways that subjects them to greater surveillance is precisely the kind of content based discrimination that violates the First Amendment. The government cannot constitutionally categorize and discriminate against Americans based on their political creeds. Likewise, the government cannot search private correspondence without an evidentiary basis for concluding the presence of a conspiracy to commit a crime consistent with the Fourth Amendment.
When political appointees staff the upper echelons of agencies like the NSA and also the management positions in them, it is virtually impossible to prevent misuse of massive data stores. We have seen that the IRS has fallen prey to this kind of partisan abuse and that the Department of Justice has as well. If more information comes to light concerning the data kept by the NSA, we may well find that it too has imposed burdens on American citizens innocent of crime based on an apparent political bias harbored against their views or lawful actions.
In the 18th Century, Lord Camden confronted a similar problem when the notorious radical Whig (and American colonial favorite) John Wilkes was the subject of a general warrant. A general warrant was issued without specific evidence of crime by English crown’s Secretary of State. It would enable police to rummage through all manner of private documents and things held by an English subject without need for proof of probable cause before an English judge.
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On that basis evidence was uncovered that permitted Wilkes to be charged with seditious libel for his publication in North Britain No. 54. When the subject of the general warrant arose in Lord Camden’s court, he was quick to condemn the warrant as a violation of individual right. From that point forward in colonial America colonists clamored against general warrants as a bane to individual liberty, and our founding fathers adopted the Fourth Amendment to forbid the practice in this country. The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The NSA data mining operation directed at millions of law abiding American citizens grossly violates the plain and intended meaning of that Fourth Amendment guarantee. Those in government who have condoned and approved deprivation of Americans’ First and Fourth Amendment rights are enemies of freedom whose actions threaten the survival of liberty in a manner ultimately supportive of those who engage in overt acts of terror to bring about a loss of American life, liberty, and property.
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