ACLU v. Clapper

Stephen Lendman
Activist Post

On June 5, London’s Guardian headlined “NSA collecting phone records of millions of Verizon customers daily.”

On June 6, a follow-up article headlined “NSA taps in to systems of Google, Facebook, Apple and others, secret files reveal.”

Numerous reports followed based on information Edward Snowden revealed. He connected important dots for millions.

Institutionalized spying on Americans isn’t new. It’s longstanding. Little was revealed publicly. Too few people knew. It’s far more invasive than most suspect. Core constitutional rights are violated.

On June 11, the ACLU filed suit. It challenged “the constitutionality of the National Security Agency’s mass collection of Americans’ phone records.”

It argued that doing so violates Fourth and First Amendment rights, saying:

Because the NSA’s aggregation of metadata constitutes an invasion of privacy and an unreasonable search, it is unconstitutional under the Fourth Amendment.

The call-tracking program also violates the First Amendment, because it vacuums up sensitive information about associational and expressive activity.

NSA claims authorization under the Patriot Act’s Section 215. It’s known as the “business records” provision.

It permits collecting “any tangible thing…relevant” to alleged foreign intelligence or terrorism related investigations. It way oversteps. It’s unconstitutional.

It permits warrantless searches without probable cause. It violates fundamental First Amendment rights. It does so by mandating secrecy.

It prohibits targeted subjects from telling others what’s happening to them. It compromises free expression, assembly and association.

It does so by authorizing the FBI to investigate anyone based on what they say, write, or do with regard to groups they belong to or associate with.

It violates Fourth and Fifth Amendment protections by not telling targeted subjects their privacy was compromised. It subverts fundamental freedoms for contrived, exaggerated, or nonexistent security reasons.

“Whatever Section 215’s ‘relevance’ requirement might allow, it does not permit the government to cast a seven-year dragnet sweeping up every phone call made or received by Americans,” said ACLU.

The 1978 Foreign Intelligence Surveillance Act (FISA) authorized surveillance relating to “foreign intelligence information” between “foreign powers” and “agents of foreign powers.”

It restricts spying on US citizens and residents to those engaged in espionage in America and territory under US control.

No longer. Today anything goes. America is a total surveillance society. Obama officials claim no authority can challenge them. Governing this way is called tyranny.

The 2008 FISA Amendments Act authorized warrantless spying. The 2012 FISA Amendments Reauthorization Act renewed doing so for another five years.

Phone calls, emails, and other communications are monitored secretly without court authorization.

Probable cause isn’t needed. So-called “foreign intelligence information” sought means virtually anything. Vague language is all-embracing.

Hundreds of millions of Americans are targeted. Major telecom and Internet companies cooperate. They do so willingly. They were granted retroactive immunity.

All three branches of government are involved. They’re complicit in sweeping lawlessness. Congressional leaders are regularly briefly. Bipartisan ones are fully on board. So are US courts.

In 2008, the ACLU challenged the FISA Amendment’s Act constitutionality. It did so on behalf of a broad coalition of human rights groups, attorneys, labor, legal and media organizations.

Their work requires them to communicate with people worldwide. In 2009, a federal judge dismissed the suit. It did so claiming ACLU’s clients couldn’t prove their communications were being monitored.

In 2011, an appeals court reversed the ruling. The Obama administration appealed to the Supreme Court. In October 2012, it heard oral arguments.

On February 26, 2013, it ruled 5 – 4 against ACLU. It held its plaintiffs lacked standing to challenge warrantless spying.

On November 22, London’s Guardian headlined “NSA bulk data collection violates constitutional rights, ACLU argues.”

It did so in US District Court for the Southern District of New York. Judge William Pauley heard arguments. ACLU called for the program to be ended. Ahead of the hearing, its legal director, Jameel Jaffer, said:

This vast dragnet is said to be authorized by Section 215 of the USA Patriot Act, but nothing in the text or legislative history of that provision remotely suggests that Congress intended to empower the government to collect information on a daily basis, indefinitely, about every American’s phone calls.

This kind of dragnet surveillance is precisely what the fourth amendment was meant to prohibit.

The constitution does not permit the NSA to place hundreds of millions of innocent people under permanent surveillance because of the possibility that information about some tiny subset of them will become useful to an investigation in the future.

ACLU argued that blanket seizure of its phone records violates its constitutional rights. Doing so compromises its ability to work with journalists, advocacy groups, whistleblowers and others.

It argued it has standing because Washington has access to its phone records. Assistant Attorney General Stuart Delery claimed otherwise.

ACLU has no standing, he said, because it can’t prove NSA surveillance harmed its activities, members or clients.

“The program is carefully calibrated for the purpose of” counterterrorism, he claimed. He lied saying it’s “not the kind of indiscriminate use of the data that the plaintiffs suggest.”

He said congressional intelligence committees were fully briefed. Pauley was skeptical. He cited “veteran congressman” Representative James Sensenbrenner (R. WI).

He submitted an amicus brief. It said “he had no idea of what was happening” when he voted to reauthorize the Patriot Act’s Section 215.

Delery argued that sweeping NSA surveillance is constitutional. Not according to ACLU lawyer Alex Abdo. Sustained/sweeping invasion of its privacy violates its Fourth Amendment rights, he said.

Jaffer argued that if current NSA practices continue, authorization other than from Section 215 may permit bulk collection of virtually everything, everywhere, for any claimed reason.

“The Supreme Court has admonished many times that the Congress doesn’t hide elephants in mouse-holes,” he said. “I think that’s what the government is proposing here.”

The Electronic Privacy Information Center (EPIC) is a Washington-based public interest research center. It focuses on civil liberties issues. It’s dedicated to protecting privacy rights.

On November 18, it headlined “Supreme Court Declines EPIC’s Challenge to NSA Domestic Surveillance Program, Leaves in Place Order of Surveillance Court.”

EPIC argued against a secret FISA court order requiring Verizon to give NSA access to all its customer records. Doing so exceeded its legal authority, it said.

“It is simply not possible that every phone record in the possession of Verizon is relevant to a national security investigation,” it stressed. The High Court rejected its argument without explanation.

Expect more challenges ahead. Shareholder pressure groups want telecom companies to provide more information on what they provide NSA.

Trillion Asset Management and New York State Common Retirement Fund filed motions. They call for AT&T and Verizon to disclose more about their “metrics and discussion regarding requests for customer information by US and foreign governments.”

In February 2012, NSA’s five page document explained its “SIGINT (signals intelligence) Strategy.” It said US laws don’t meet its needs.

It explained a four year strategy to “aggressively pursue legal authorities and a policy framework mapped more fully to the information age.”

“The interpretation and guidelines for applying our authorities, and in some cases the authorities themselves, have not kept pace with the complexity of the technology and target environments, or the operational expectations levied on NSA’s mission,” it stressed.

It wants unrestricted mass surveillance authority. It wants to be able to collect data from “anyone, anytime, anywhere.” It’ll decrypt codes intended to keep personal information private.

It intends to “revolutionize” analysis of data it collects. It wants to “radically increase (its) operational impact.”

It doesn’t clarify what legal or policy changes it may seek. Its powers are nominally granted by Congress, executive authority and the FISA court.

It already operates extrajudicially. It has broad latitude to do so. It’s report argues for more flexibility. It wants greater than ever sweeping authority. It wants to “dramatically increase its mastery of the global network.”

An NSA statement said:

“NSA’s Sigint strategy is designed to guide investments in future capabilities and close gaps in current” ones.

In an ever-changing technology and telecommunications environment, NSA tries to get in front of issues to better fulfill the foreign-intelligence requirements of the US government.

Critics like ACLU, the Center for Constitutional Rights, EPIC and others cite core constitutional rights violations. Modern technology facilitates police state lawlessness.

Everyone is vulnerable. There’s no place to hide. Freedom is fast disappearing. Alleged security concerns ring hollow. They’re cover for what’s too precious to lose.

Stephen Lendman lives in Chicago and can be reached at [email protected]. His new book is titled How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening. http://www.progressiveradionetwork.com/the-progressive-news-hour/