It’s been a week since Glenn Greenwald broke the story on the National Security Agency’s broad surveillance of calls made on the Verizon network. There have been a lot of arguments made for and against this program over the last week, and the battlelines have been clearly drawn.
First, let’s recap. This sort of surveillance has been around for at least seven years, perhaps even longer. The difference between what was going on with the NSA under the Bush Administration and what is currently going in the Obama Administration is that the former didn’t bother with court orders or warrants to conduct this sort of blanket surveillance.
So when the apologists for the program say it’s “legal,” like Rep. Steny Hoyer (D-MD) did yesterday, they’re referring to the the statutory authority granted via Section 215 of the PATRIOT Act, a controversial provision of the law that allows intelligence agencies to obtain a court order to collect this information from businesses. More on this in a moment.
Using this section of the law, the NSA obtained authority from a secret court, known as the Foreign Intelligence Surveillance Court (FISC), to force Verizon to turn over the phone records of millions of customers, even if they are not suspected of terrorist activity.
“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,” wrote Greenwald at The Guardian. “The contents of the conversation itself are not covered.”
It’s incredibly likely that other phone companies are included, as the Los Angeles Times explained last week. “Government officials have not directly answered [whether Verizon is the only carrier whose records are being obtained] because the program is classified,” they noted in a Q&A on the program, “but it seems very unlikely that a program lasting for seven years would be directed at only one carrier, particularly since other carriers’ records had been involved previously.”
Take a couple moments to think about that.
It’s not at all unreasonable to suggest that the NSA has records of your calls to your family and friends, without any probable cause. That call you made to your mother last night to catch up? They likely have a record of it, including the location from which you made the call and the duration of the conversation. Did you call your spouse to ask that they stop by the store to grab something for dinner? The NSA likely has that, too.
The supporter of the law, as noted earlier, will say, “But it’s legal!” Actually, it’s not — unless one takes both an expansive reading of Section 215 and dismisses the constitutional guarantee of privacy in the Fourth Amendment. They also say, “But there is oversight.” No, there isn’t. The FISA court approves virtually all — 99.97%, to be exact —surveillance requests. It’s nothing more than a rubber-stamp for intelligence agencies.
Rep. Jim Sensenbrenner (R-WI), who authored and sponsored the PATRIOT Act in 2001, expressed concern in a letter to Attorney General Eric Holder over the reports of the NSA’s program and the broad interpretation of what information can be obtained.
“I do not believe the released FISA order is consistent with the requirements of the PATRIOT Act,” wrote Sensenbrenner. “How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?”
“To obtain a business records order from the [FISA] court, the PATRIOT Act requires the government to show that: (1) it is seeking the information in certain authorized national security investigations conducted pursuant to guidelines approved by the Attorney General; (2) if the investigative target is a U.S. person, the investigation is not based solely on activities protected by the First Amendment; and (3) the information sought is relevant to the authorized investigation,” added Sensenbrenner. “In addition, the PATRIOT Act requires the government to adhere to minimization procedures that limit the retention and dissemination of the information that is obtained concerning U.S. persons.”
In a press release from his office, Sensenbrenner, who has claimed that there were sufficient civil liberties protections in place to guard against potential abuse of the law, called the NSA’s seizure of Americans’ phone records “excessive and Un-American.” He has also urged Congress to amend the PATRIOT Act to prevent future abuse.
There’s no getting around it — the interpretation of the law is simply inconsistent with the Fourth Amendment, at least what we know of the intent, according to Sensenbrenner.
The Fourth Amendment says, “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.”
There is simply no reason or probable cause to seize the phone records of Americans who aren’t suspected of any terrorist activity or crime. Some would say, including the NSA, that “if you have nothing to hide, then you have nothing to worry about.” That’s completely and utterly irrelevant to the issue at hand.
Partisans are, of course, using the revelation of the program to say, “Look, we can’t trust Obama.” The authority given under the PATRIOT Act is, unquestionably, too much for any president. That’s why the Founding Fathers had the foresight to put the Fourth Amendment in the Constitution, and for good reason. They had experienced the dangers of general warrants, which allowed British authorities to search their homes and effects whenever they so desired. James Otis, who presented merchants during a legal challenge to general warrants in 1760, called them the “worst instance of arbitrary power.”
The good news is that most Americans are expressing skepticism to what the NSA is doing. According to a new CBS News poll, 58% disapprove of the federal government collecting phone records of ordinary Americans.
Ultimately, this isn’t about leakers and whistleblowers. It’s not about Barack Obama or George W. Bush. It’s not about Democrat versus Republican or progressive versus conservative. What we have to decide is whether or not we’re going to live in a country where the Constitution and the liberties protected therein actually matter.
If the Constitution doesn’t matter, then there is literally no restraint or check on government power. That has long-been what has separated our government from monarchs and dictators. Our Constitution has worked and it will continue to work, but only if we restore the liberties that it protects and the check-and-balances that have been so severely ignored.