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Government Secrecy Threatens America’s Rule of Law PDF Print E-mail
Commentary/Politics - Editorials
Written by Kathleen McCarthy   
Wednesday, 30 October 2013 09:47

The conclusion of John Whitehead’s August commentary “The NSA: The Abyss from Which There Is No Return” (RCReader.com/y/nsa1) deserves serious consideration: “Once you allow the government to start breaking the law, no matter how seemingly justifiable the reason, you relinquish the contract between you and the government that establishes that the government works for and obeys you – the citizen, the employer, the master. And once the government starts operating outside the law, answerable to no one but itself, there’s no way to rein it back in, short of revolution.”

For the past six months, the more egregious mass-surveillance activities of the National Security Agency (NSA) have been disclosed to Americans, confirming our worst fears. Nearly every form of communication we engage in is being recorded and stored for purposes that are seriously unconstitutional, regardless of judicial oversight done in secret by a special court. And even though our leaders, both political and bureaucratic, assure us that its activities are legal, they are only speaking to administrative sanction. This means that the legality of what they are doing is not necessarily constitutional, nor apparently does it need to be when perpetuated under the guise of national security and/or keeping us safe from terrorists.

Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA), which included the establishment of the Foreign Intelligence Surveillance Court (FISC) to provide judicial oversight of the government’s surveillance activities while keeping intact its secrets. However, critics argue that FISC is nothing more than a rubber stamp for unfettered access by intelligence agencies, including the NSA, CIA, FBI, and the Office of the Director of National Intelligence – especially considering that, since FISC’s creation, it is estimated that 98 percent of all warrants are granted.

FISA requires that all surveillance have its genesis in foreign communications – in other words, initiating from outside the U.S. Despite this criterion, PRISM is just one of the NSA programs that collect all Americans’ metadata for storage and possible future examination. It was part of an array of evidence disclosed by former intelligence contractor Edward Snowden, shocking Americans over the enormity of scope this level of surveillance entails. (See RCReader.com/y/nsa2, RCReader.com/y/nsa3, and RCReader.com/y/nsa4.)

Congressional hearings confirmed PRISM’s existence amidst assurances from NSA Director Keith Alexander and National Intelligence Director James Clapper that metadata was collected but not examined without warrants approved by FISC. Clapper originally testified under oath that no such surveillance was being conducted. However, Clapper was not prosecuted for lying to Congress after he admitted to the felony, stating that it was the least untruthful thing he could think to say at the time.

Meanwhile, the U.S. Senate Select Committee on Intelligence – co-chaired by Dianne Feinstein (D-California) and Saxby Chambliss (R-Georgia) – is giving enthusiastic support for the NSA’s surveillance activities, regardless of the express violations of our constitutionally protected rights.

FISC ostensibly provides a check on the NSA’s powers, but the process makes it practically toothless. A single FISC judge hears a one-sided argument – the government’s – in favor of a warrant, with no opposing argument against the warrant’s issuance. Unlike with warrants in criminal cases, no challenge is available to the warrant’s subject – in this case, people under surveillance.

In addition, the “relevance” requirement for probable cause has been stretched so far as to defy the very meaning of the word, justifying the mass collection of every single communication of each American every second of every day as somehow “relevant” to foreign surveillance in ferreting out terrorists. Add to this the provision in the USA PATRIOT Act that permits the government to order the turning over of “any tangible things” to protect against terrorism, depending on how narrow or broad it is secretly interpreted by FISC. Finally, the use of a legal principle known as the “special needs clause” provides an exception to the Fourth Amendment requirement for a warrant for searches and seizures. It claims that minimal intrusion by government is justified in combating a larger public danger. This is broad enough to drive a truck through, and common sense alone can detect the potential for abuse in application.

Add to this the absurdity of all FISC’s ruling being done in secret, with no public access to these opinions that are then precedent-setting – creating a body of secret law that U.S. citizens can have no knowledge of. It is an entirely unconstitutional, un-American process that is shrouded in secrecy under the increasingly dubious “classification” system for national security. All these policies fly in the face of the constitutionally guaranteed protections of due process against unlawful searches and seizures. These protections are at the core of our unalienable rights that the president, legislators, and the intelligence community’s employees take an oath to uphold.

Feinstein is carrying the water for the NSA, promoting surveillance activities with no small measure of enthusiasm, claiming that if we had these spy programs prior to 9/11, we could have prevented the attacks. Apparently she did not get the memo that refutes that claim, with documented evidence that not only did we have such surveillance programs in place, but we had a great deal of relevant intelligence on at least three of the primary al-Qaeda operatives for years prior. The problem was not in the data collection, or even its dissemination to the appropriate agencies. There were volumes of intelligence pouring in on potential attacks on American soil, including flying airplanes into buildings. Feinstein admitted during a recent Senate hearing that then-CIA Director George Tenet issued her committee dire warnings of an impending attack months before 9/11. The only conclusion is that there was a failure of senior levels of government to act effectively on actionable intelligence, as reported in the 9/11 Commission Report, among others.

The support for these massive surveillance programs by both the Senate and House intelligence-oversight committees is unseemly in the face of so much evidence that debunks the programs’ efficacy, including the systematic unraveling of Feinstein’s claims that this surveillance thwarted no fewer than 54 terrorist attacks. In the final analysis, the only domestic activity actually prosecuted based on collected metadata was that of a New York cabbie found guilty of sending $8,500 to a tribe in Somalia that was designated as a terrorist organization. (See RCReader.com/y/911.)

It makes a lot more sense when viewed through the lens of massive corruption that characterizes Feinstein’s service. As co-chair of the U.S. Senate Select Committee on Intelligence, whose job it is to oversee the intelligence services, she emphatically gives a pass on all counts of overreach. Perhaps Feinstein is an unapologetic cheerleader for government spying because, as a member of the military-construction appropriations subcommittee from 1997 through 2005, she cleared hundreds of millions of dollars in funding for projects that were awarded to companies – Tutor Perini Corporation and URS Corporation – with ties to her husband, Richard Blum. From 2001 to 2005, Perini earned $759 million and URS earned $792 million in military-construction and environmental projects. Originally a builder of casinos, Perini converted to military-construction projects, increasing federal-contract revenues from $7 million in 2000 to $444 million in 2004, according to an extensive exposé. (See RCReader.com/y/feinstein. Read more about Feinstein’s other conflicts of interest at RCReader.com/y/blum1, RCReader.com/y/blum2, and PeterByrne.info.)

Feinstein had (and still has) unprecedented access to data that should have forced her to recuse herself in all manner of legislative actions where these clear conflicts of interest existed, but she refused. Astonishingly, because she was also member of the U.S. Senate Select Committee on Ethics, her accountability was (and still is) nonexistent. This is just one story of toxic corruption in government that has gone unindicted. Feinstein has been in office for more than 30 years, with no end in sight thanks to excessive partisanship among voters regardless of past bad acts. Democrats and Republicans will almost always vote for their party’s candidate regardless of previous behavior, rather than casting a vote for the opposing party’s candidate with a clean record.

Feinstein’s bad acts leave her ripe for compromise. Logic suggests that intelligence agencies have proverbial dossiers on all politicians, bureaucrats, and private and public industry leaders for this very reason – to force compliance or face exposure. Granted, Feinstein’s history is well-documented, but if the distribution of her conflicts of interest has not reached critical mass, their resurrection could potentially threaten her re-election. Modern government surveillance is J. Edgar Hoover on steroids, considering the amount of information collected and available for ... whatever.

It is no longer extreme to consider that such revolting practices could be employed, especially because all our conversations, communications, and digital activities are stored. Personal data could be easily manipulated for nefarious purposes that benefit those with access. The thing most lacking today is Americans’ imaginations.

People often respond to government spying by saying, “Why should I care? I’m not doing anything wrong.” We should all reply: “Yet!” The average U.S. citizen breaks at least three laws every day, according to a Wall Street Journal review of Harvey Silverglate’s book Three Felonies a Day (RCReader.com/y/felonies). This is a reasonable estimate considering the massive number of laws added to the books every year. It would be impossible for any of us to know every law, and if the government were intent enough, it could find violations that apply to you and prosecute you using your specific history conveniently stored and made available in secret without your even knowing until the hammer fell.

This week, Congress is introducing legislation, the USA Freedom Act, to more intensively govern the NSA’s activities. It is important to familiarize yourself with this legislation beyond the news bites given by the corporate media. A draft version of the bill reveals the key provisions including (1) addressing Section 215 and ending bulk collection of Americans’ communication records; (2) reforming FISC; (3) increasing transparency; and (4) addressing National Security Letters issued by the FBI requiring recipients to turn over private data without notification.


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