Jun 06 2013

The Death of the Fourth Amendment

“[America’s intelligence gathering] capability at any time could be turned around on the American people and no American would have any privacy left. Such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.”

~Sen. Frank Church (D-ID), Meet the Press, August 17, 1975~

Just like the CIA has no clue who they are killing with their “targeted” drone strikes, the NSA has no clue whose data they are mining in the massive collection of Verizon phone records that was authorized in a FISA warrant under Section 215 of the Patriot Act. It was issued in early April shortly after the Boston Marathon Bombing.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

Thanks to Pres. Barack Obama and many Congressional Democrats, and as Alex Pareene at Salon points out, there is nothing we can do about it.

This order went through a FISA Court, according to the rules laid out explicitly by Congress (unlike the Bush administration’s abuses, which were only retroactively authorized). The order could’ve been isolated, or it could’ve been standard practice. We have no way of knowing. And it’s almost definitely not just Verizon. As Marc Ambinder says: “I would assume that these orders are typical and are issued by the FISC to other telephone companies, and possibly to companies that process e-mail as well.” (He also says the order is “at odds with statements from government officials who’ve insisted that the government does not collect all Americans’ phone records just because they can.”) An unnamed expert cited by the Washington Post says the order “appears to be a routine renewal of a similar order first issued by the same court in 2006.”

While the fact that the NSA has the power to do this has been public for some time, we’ve never seen, until the Guardian obtained one, an actual Foreign Intelligence Surveillance Court warrant. They are very top secret. Someone will probably be prosecuted for leaking this one. That, in fact, is one of the primarily issues civil libertarians, like the ACLU and the Electronic Frontier Foundation have been raising: If the way the administration interprets the law is secret, the law itself is effectively secret. Now we know more. But the recent history of the U.S. and domestic surveillance suggests that knowing more won’t lead to doing anything about it.

This one cannot be laid solely at the feet of the Republicans. In fact, one of the chief supporters and architect of this latest bill is the senior Democratic Senator from California, Dianne Feinstein, who has criticized her fellow Democratic colleagues for not understanding the threat of terrorism. Today she has been all over the cable channels and traditional MSM defending this massive violation of the Fourth Amendment saying, “This is to ferret this out before it happens. It’s called protecting America.

She handed out letters she and Sen. Saxby Chambliss (R-Ga.), the top Republican on the committee, wrote to their colleagues in 2010 and 2011 explaining how the program worked, and urging that they support it. Congress did so.

“This is nothing particularly new,” Chambliss said. “Every member of the United States Senate has been advised of this, and to my knowledge we have not had any citizen who has registered a complaint relative to the gathering of this information.” [..]

“I’m a Verizon customer,” Sen. Lindsey Graham (R-S.C.) said during an appearance on Fox News. “I don’t mind Verizon turning over records to the government if the government is going to make sure that they try to match up a known terrorist phone with somebody in the United States.”

How about protecting the Constitution, Senators?

Of course the White House is defending the warrant:

(T)he Obama administration, while declining to comment on the specific order, said the practice was “a critical tool in protecting the nation from terrorist threats to the United States”. [..]

“As we have publicly stated before, all three branches of government are involved in reviewing and authorising intelligence collection under the Foreign Intelligence Surveillance Act. Congress passed that act and is regularly and fully briefed on how it is used, and the Foreign Intelligence Surveillance Court authorises such collection. There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act.”

The administration stressed that the court order obtained by the Guardian relates to call data, and does not allow the government to listen in to anyone’s calls.

Senators Ron Wyden (D-OR), Mark Udall (D-CO) and Bob Corker (R-TN), who have been a vocal opponents of FISA and the Patriot Act, spoke out earlier:

“I have had significant concerns about the intelligence community over-collecting information about Americans’ telephone calls, emails, and other records,” said Sen. Jeff Merkley (D-Ore.), who has tried to change the law, along with Sen. Mark Udall (D-Colo.)

“The administration owes the American public an explanation of what authorities it thinks it has,” said Udall. [..]

“The fact that all of our calls are being gathered in that way — ordinary citizens throughout America — to me is troubling and there may be some explanation, but certainly we all as citizens are owed that, and we’re going to be demanding that,” said Sen. Bob Corker (R-Tenn.), noting that he, too, was a Verizon customer.

Even the chief architect of The Patriot Act, which many consider unconstitutional, Rep. Jim Sensengrenner (R-WI) considers this phone records grab troubling. In a letter to Attorney General Eric Holder, he stated:

As the author of the Patriot Act, I am extremely troubled by the FBI’s interpretation of this legislation. While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses. The Bureau’s broad application for phone records was made under the so-called business records provision of the Act.  I do not believe the broadly drafted FISA order is consistent with the requirements of the Patriot Act. Seizing phone records of millions of innocent people is excessive and un-American.

Discussing The Guardian article by Glenn Greenwald, Amy Goodman on Democracy Now was joined by: William Binney, served in the National Security Agency almost 40 years, including a time as director of the NSA’s World Geopolitical and Military Analysis Reporting Group; Shayana Kadidal, senior managing attorney at the Center for Constitutional Rights; and Thomas Drake, National Security Agency whistleblower who was charged with violating the Espionage Act by the Obama administration.

The domestic NSA-led Surveillance State which Frank Church so stridently warned about has obviously come to fruition.  

1 comment

  1. TMC

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