- - Tuesday, November 18, 2014

The National Security Agency (NSA) has destroyed the right to be let alone —the most cherished right among civilized people.

The destruction may be modestly repaired today if the Senate votes to approve the USA Freedom Act.

But much more will remain to be done in any event.

First, Congress must prohibit the NSA from obtaining information about American citizens from foreign intelligence agencies that it could not obtain directly under United States law. The NSA has probably forged formal or informal agreements with the spy agencies in Canada, Great Britain, Australia, New Zealand, and Israel to coordinate and share the collection of intelligence on United States citizens. A neglect to enact this prohibition would make the core reforms of the USA Freedom Act meaningless.

Ditto if Congress neglects to prohibit the president from collecting intelligence under Executive Order 12333 or claimed inherent constitutional powers that could not be collected under duly enacted statutes.

Third, Congress must encourage the United States Supreme Court to interpret the Fourth Amendment to reflect today’s Digital Age realities. It should find that citizens hold reasonable expectations of privacy that society should respect as reasonable with regard to their digital communications which they have not knowingly and voluntarily placed in the public domain. This finding is necessary to overcome crabbed interpretations of the Fourth Amendment that leave unprotected any information shared or generated with a third party, including banks or phone companies.

Fourth, Congress should prohibit the NSA from collecting any intelligence about citizens absent a showing to an Article III judge that there is reasonable suspicion that they are complicit in international terrorism or possess information about an international terrorist plot.

The urgency of these reforms is undeniable.

Virtually the entire United States population daily has been subject to NSA surveillance of all of their phone communications since 2006.

Its facility in Buffdale, Utah alone has a capacity for five (5) zettabytes of data, the equivalent of 250 billion DVDs or 300 billion iPhones.

The NSA’s ethos and secrecy do not inspire confidence that the data will not be abused. The Director of National Intelligence, James Clapper, lied under oath to the Senate Intelligence Committee in denying the NSA’s telephone surveillance program. He was impenitent and unrebuked by President Obama. 

In the aftermath of Edward Snowden’s disclosures, the NSA initially insisted that its dragnet spying on Americans had foiled scores of terrorist plots targeting the United States. That number slowly scaled downward upon examination until it reached zero.

Congressional oversight of the NSA is joke. Little is asked. Less is revealed. Congressional reports are redacted by the Executive Branch. A common refrain among House and Senate Intelligence Committee members is that more is learned from newspapers and leaks than from top secret briefings by the
intelligence community.

Secrecy corrupts, and absolute secrecy corrupts absolutely. There are no exceptions.

Even if the NSA stayed within legal boundaries, its Orwellian collection of data about Americans impairs government of the people, by the people, for the people. The simple fear that the NSA could misuse data about them discourages citizens from criticizing the government and speaking truth to power. That inertness invites tyranny in the executive branch which, at present, is daily on display.

Supreme Court Justice and Nuremburg chief prosecutor Robert Jackson warned in Brinegar v. United States that weakening the Fourth Amendment’s protection of privacy would embolden government lawlessness: 

“[Fourth Amendment rights]…are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human
personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.”

If we disregard Justice Jackson’s warning, we will continue down the road of executive branch tyranny until government of the people, by the people, for the people perishes in the United States.

For more information about Bruce Fein, please visit www.brucefeinlaw.com.

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