- - Thursday, May 7, 2015

The mega-inflated fears of the National Security Agency fortified by a military-industrial-counterterrorism complex warned against by President Dwight D. Eisenhower are no longer in the saddle.

On Thursday morning, a panel of the U.S. Court of Appeals for the Second Circuit, sitting at Ground Zero, held illegal the NSA’s warrantless, suspicionless collection, retention and search of the telephony metadata of every call involving American citizens in the United States for the past nine years. This staggering invasion of the cherished right to be let alone had proven virtually worthless in diminishing the international terrorist threat according to President Barack Obama’s own Privacy and Civil Liberties Oversight Board. It was surveillance for the sake of surveillance in a Quixotic quest for a risk-free existence.

Depend upon it. The usual neo-con suspects, including James Clapper, mendacious Director of National Intelligence, will cry wolf again. They will insist that terminating the NSA’s Orwellian surveillance of the entire population will open the door to international terrorist massacres in the United States featuring dead bodies at Little League Baseball events or Girl Scout outings in every city and town. Similar Chicken Little-like clucking that “the sky is falling down” was heard from them when the Protect America Act of 2007 expired without a replacement for six months in 2008. But nothing happened.

There never was a post-9/11 need to augment the surveillance authority of the NSA via section 215 of the Patriot Act or otherwise. The intelligence community possessed the information needed to thwart the 9/11 terrorism. It succeeded because of the NSA’s monumental ineptitude or bureaucratic sloth in connecting the dots. To obscure this fact, the intelligence community bellowed for new and unprecedented collection, storage and search authorities while retaliating against whistleblowers who truthfully reported that the Emperor had no clothes.

Along with the NSA’s claimed limitless authority under section 215 of the Patriot Act to spy on the citizenry came limitless stupidity. The NSA’s ever-growing haystack of intelligence kept diminishing the probability of finding a needle, which it never has.

The Court of Appeals in ACLU v. Clapper concluded that section 215 does not authorize the NSA to play the role of Big Brother in George Orwell’s “1984.” The First Amendment thus protects Edward Snowden from prosecution under the Espionage Act for disclosing this aspect of the government’s lawlessness.

But more needs to be done to safeguard the citizen privacy protected by the Fourth Amendment’s prohibition of unreasonable searches and seizures.

First, Congress should do nothing to extend section 215 beyond its June 1, 2015, expiration date.

Second, Congress should prohibit the president from targeting citizens to collect foreign intelligence under Executive Order 12333.

Third, Congress should enact a resolution declaring the citizens hold a reasonable expectation of privacy in their telephony metadata protected by the Fourth Amendment.

Fourth, Congress should prohibit the expenditure of any monies of the United States to collect or retain foreign intelligence that is not made available to every member of Congress in secure facilities. Sunshine is the best disinfectant. And former Director of Central Intelligence George Tenet has confessed that Congress is far superior to the executive branch in refraining from leaking classified information. Think of former CIA Directors David Patraeus and John Deutsch.

The NSA and CIA need education in the obvious.

The U.S. Constitution created a liberty-centered universe in the United States.

For more information on Bruce Fein, visit Brucefeinlaw.

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