Jun 07 2013

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The State Sponsored Assault on American Privacy

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Fiction Has Become Fact...

Fiction Has Become Fact…

I’m from the government and I’m here to help.”

Ronald Reagan called that phrase, “The nine most terrifying words in the English language.”

But even with his abiding skepticism of government, Reagan would scarcely believe what government has done in the years after his presidency, and how those activities, writ large, infringe on our basic, guaranteed constitutional rights.

The last 48 hours have seen simply stunning revelations about top-secret government programs that effectively sweep the collective electronic consciousness of the American people into government databases. It is so unprecedented in its scope that the only comparable analogies require the thoroughly distasteful exercise of comparing agencies of the US government to the worst regimes of the 20th century.

First we learn that the National Security Agency (NSA) has been collecting the phone records of millions of Verizon subscribers since 2006. If you use AT&T or Sprint, it’s only a matter of time until someone finds out that your information was collected as well.

On the heels of that revelation comes this morning’s blockbuster, broken by the Washington Post, which shows how the NSA and FBI have been secretly gathering the data of nine leading US Internet companies – including Google, Facebook, AOL, Apple and others –  extracting a huge cache of audio, video, photographic and email information and other records – belonging to US citizens. The  program – named PRISM – wasn’t some secondary backwater of non-essential information. According to the Post, PRISM was the most prolific contributor to the President’s Daily Brief  (PDB) – the most sensitive and valuable intelligence digest produced by the US intel community, which cited PRISM data in 1,477 articles last year.  That means on in seven reports to POTUS was based on domestic spying.

In both cases, there was no probable cause of a crime – or an intention to commit a crime – on the overwhelming preponderance of communications and data. In both cases, privacy assurances provided by the carriers have been exposed as nothing more than a work of fiction.

Americans have been had.

And it was all orchestrated by our government.

Our government.

Worse, our elected leaders in the Executive branch and in Congress, and even among some in the Fourth Estate (that means you, Wall Street Journal)  seem to believe this flap is much ado about nothing.

Speaking to the Verizon phone snooping, Democratic Senator Dianne Feinstein, chairman of the Senate Intelligence Committee, defended the program. Feinstein stated that the program was “lawful.”

But as Elizabeth Goitein, of the Liberty and National Security Program at the Brennan Center for Justice in New York points out, “The program is taking place under Section 215 of the Patriot Act, which allows the government to obtain records and other “tangible things” only if they are relevant to an authorized foreign-intelligence or international-terrorism investigation. It is simply not possible that all of the phone records of every American are relevant to a specific, authorized investigation. Such an interpretation of “relevance” – or “investigation” – would render Section 215’s limitation utterly meaningless.”

As if to provide reassurance to the public, Feinstein further stated that the surveillance had operated under the “required” supervision of the (Foreign Intelligence Surveillance Act) FISA court.  But as Goitein points out, “To be sure, a court has signed off, but that does not make it legal. Courts occasionally make mistakes. When that happens the losing party has the right to appeal and the erroneous decision is revered. That process cannot happen when a secret court considers a case with only one party before it.”

Goitein continues, “It has taken seven years for the American public to learn about this interpretation and since the government was the only party to the case, no one can appeal. The court’s order illustrates the fundamental inadequacy of secret courts and secret law when it comes to protecting American rights.”

Republican Senator Lindsey Graham made perhaps the most surreal and deeply troubling comment on the secret phone records surveillance, ““I’m a Verizon customer. 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. I don’t think you’re  talking to the terrorists. I know you’re not. I know I’m not. So we don’t have  anything to worry about.”

So the United States government is allowed to secretly intercept, collect, store and analyze my calls, indeed with the new PRISM revelations, any of my electronic communications, without a person-specific warrant, without evidence of a crime or potential crime – for no reason at all really – and so long as I’m not a terrorist or cavorting with terrorists, I have nothing to worry about?

That is simply a ludicrous and contemptible.  Does anyone remember the 4th amendment for crying out loud?

But this becomes truly diabolical when you look at this news in light of the IRS scandal.

The government’s defense of this unprecedented intrusion into the most private parts of American lives is that data collection will only be used for one purpose – to guard against terrorist plots and nothing more. But in the IRS example, we have already seen what happens when government agencies supposedly independent, professional and above reproach, run amok.

Officials who scoff at the notion that intelligence databases that effectively store our electronic lives could ever be used for a purpose other than anti-terrorism should consult the political mood of Washington six weeks ago when the notion that the IRS would ever intentionally target political groups was considered a hayseed conspiracy theory.

While government is essential to the public good, it is not an abstract, benign administrator for the public good.  The truth is that government is as imperfect as, and beholden to, the people who staff it, with all the attendant agendas, biases, ambitions and flaws. And most important, it is no less capable of being compromised.

Could you imagine what a corrupted, future government could do with the data stored by the NSA?

As it is today, American citizens who associate with terror organizations abroad can be targeted and killed by the Executive branch without any due process – indeed, without any evidence that they committed a crime. The Justice Department has used the Espionage Act of 1917 to label a journalist as a criminal “co-conspirator” for doing nothing more than his job.

Imagine the abuse when the government has stored access on everything from your finances and friends to your Internet search history.

This is frightening.  And frightenly real.

The breaking Post story alluded to the motives of the NSA leaker. “Firsthand experience with these systems, and horror at their capabilities, is  what drove a career intelligence officer to provide PowerPoint slides about  PRISM and supporting materials to The Washington Post in order to expose what he  believes to be a gross intrusion on privacy. “They quite literally can watch  your ideas form as you type,” the officer said.” (emphasis added).

This is why the Founders created a system of government based on enumerated (limited) powers. It is why there is a Bill of Rights. It is why we have the 10th amendment which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” (emphasis added).

Everything so far revealed in the NSA spying program is contrary to those purposes and intentions.  The potential for abuse is staggering.

And make no mistake, as much as defenders of the program will complain, this is not about the War on Terror.

I have never wavered in my support for the US government to do all that it can, and have all the tools necessary, to interrupt terrorist financing, planning and attacks. But contrary to the line of logic that will surely come from government officials in the days ahead, protecting our rights and our security are not mutually exclusive. This is decidely not a choice between the NSA program as revealed or na nation left defenseless in the face of terror.

As a foundational premise, rule of law and our fundamental right to privacy cannot be cast aside with the general assertion that national security requires it. We must begin a serious public discussion to retake our rights and rebalance the reach of our security agencies, in a fair, transparent and accountable process, that both protects our rights and our security.

In an unintended but ironic twist, President Obama will be meeting with Chinese President Xi Jinping in California this weekend, just after this story broke. As the Chinese police state that tramples the rights of its people  continues to grow and challenge US power, how sad is it that the US is revealed to have superior tools for spying on its own citizens.

It breaks my heart.

















1 comment

  1. grossyi

    Now that we know the NSA spied on the top officials of this country and the Chief Justice of the Supreme Court suddenly changed his political thinking to justify Obamacare, isn’t it time for an enterprising journalists to connect the dots? Of course this is just another conspiracy theory and Edward Snowden is just a misguided youth.

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