- - Wednesday, December 20, 2017

ANALYSIS/OPINION:

The House Permanent Select Committee on Intelligence (HPSCI) cheerleads for the 17 agencies which comprise the intelligence community.

The HIPSI staff is largely recruited from those agencies. HIPSCI Members are vetted by the House Speaker and Minority Leader to insure enthusiastic support for the surveillance state. The Members are generally term-limited to prevent the expertise necessary for professional oversight of the $100 billion intelligence community that produces 50,000 intelligence reports annually.

In sum, HPSCI can no more be trusted with guarding our privacy rights from the intelligence community than a fox can be trusted with guarding the hen house.

The FISA Amendments Reauthorization Act of 2017 is exemplary. HPSCI permitted the intelligence community to draft the bill to expand its surveillance authorities under section 702 of the Foreign Intelligence Surveillance Act. Fourth Amendment privacy rights were steamrollered. Enhanced powers were created with no plausible showing that they would thwart even a single terrorist attack. The bill is surveillance for the sake of surveillance, which is precisely what the Fourth Amendment forbids.

The Amendment ordains that privacy is the rule and government encroachments the exception when the government proves a compelling law enforcement need. United States Supreme Court Justice Louis D. Brandeis taught in Olmstead v. United States (1928) (dissenting opinion):

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness…They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”

The HPSCI legislation, nevertheless, would expand the targets of foreign intelligence surveillance under section 702 to include persons engaged in “malicious cyber” activities unrelated to international terrorism. The National Security Agency (NSA), however, is already drowning in oceans of irrelevant information which disables its discovery of terrorists. (Since 9/11. NSA surveillance has not thwarted a single terrorist act in the United States nor saved a single American life abroad). HIPSCI ‘s legislation would compound the problem of information overload instead of re-designing the NSA’s surveillance tools to separate the wheat from the chaff.

The HPSCI bill would also authorize the NSA to target “a facility, place, premises, or property” for surveillance irrespective of the number of Americans whose conversations would be collected, stored, and searched without any suspicion of involvement in terrorism or wrongdoing—a violation of citizen privacy protected by the Fourth Amendment.

The bill would permit the government to seize and search the contents of every citizen’s international communications for law enforcement purposes unrelated to terrorism without a warrant or probable cause. It would further authorize the government to intercept international communications in which a target’s name is mentioned even if the communicants are saints.

It speaks volumes that neither HPSCI nor the intelligence community will promise that even one act of terrorism will be thwarted by these additional surveillance authorities. They constitute surveillance for the sake of surveillance. The main purpose is to provide a quantitative management tool that measures success by the volume of information collected not by the number of terrorist acts thwarted.

This creates an appearance to the unschooled of optimal protection from terrorism. But preoccupation with quantitative intelligence collection rather than analysis makes us less safe. It deflects us from the ultimate goals of preventing or thwarting terrorism.

The intelligence community should be haunted by Secretary of Defense Robert McNamara’s appraisal of the Vietnam War after his first tour in 1962: “Every quantitative measurement we have shows we are winning this war.”

Section 702 should be repealed or scaled back, not expanded.


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