OMNI
CONSTITUTION WEEK AND
CITIZENSHIP DAY, SEPTEMBER 17, 2014, NEWSLETTER #7.
Compiled by Dick Bennett, FOR A CULTURE OF PEACE,
JUSTICE, AND ECOLOGY.
(See #6 Sept. 17, 2014; #5 Sept. 17,
2012; #4 Sept.17, 2011; #3 September 17, 2010; #2 September 17, 2009; #1:
September 17, 2008).
What’s at stake: Is the Constitution an evolving document,
changing throughout American history in light of major social changes, or is it
and should it be strictly interpreted according to its origins? Is the Constitution serving as a bulwark
against the enormous powers of the corporate-presidential-military-imperial-mainstream
media complex? Is the Supreme Court,
like the presidential and congressional branches, part of the Complex?
My blog: It's the War Department
Newsletters:
Index:
See:
Bill of Rights, Bill of Rights Day, CIA, civil
liberties, drones, due process, evolution of meaning, fascism, FBI, imperialism,
Manning, NSA, originalism, “Patriot Act,” prisons, secrecy, separation of
powers, surveillance, torture, wars, War on Terror, and more.
OMNI NATIONAL AND INTERNATIONAL DAYS PROJECT
Contents #7 Constitution
Day Sept. 17, 2014
US Constitution and Its
Defense: Civil Liberties and Treaties
Constitution Day
ACLU Constitution Day
Bill of Rights Defense Committee (BORDC)
League of Nations and United Nations Charters vs. Aggression, UN Charter
Part
of US Constitution, Treaties Are US Law
of US Constitution, Treaties Are US Law
Two Books, Constitution for the People:
Pamela Karlan, A Constitution for All Time
Liu, Karlan, Schroeder. Keeping Faith with the
Constitution
Attacks on the
Constitution
Dick, Racism and McCarthyism: Japanese-Americans Interned
Lisa Graves, NSA Surveillance
Constitution Day
We the People
Constitution Day commemorates the formation and signing of the U.S.
Constitution by thirty-nine brave men on September 17, 1787, recognizing
all who, are born in the U.S. or by naturalization, have become citizens.
George Washington
George Washington was the commander of the Continental Army in the
American Revolutionary War and served as the first President of the United
States of America. Read More Benjamin Franklin
Benjamin Franklin
was a noted polymath, leading author and printer, satirist, political
theorist, politician, scientist, inventor, civic activist, statesman, and diplomat.
Read More
Alexander Hamilton
was the first United States Secretary of the Treasury, a Founding Father,
economist, political philosopher and led calls for the Philadelphia Convention.
Read More
Constitution Day Events http://www.constitutionday.com/
September 17, 2014
Celebrate the Birthday
of Our United States of America Government
On September 17, 1787, the delegates to the Constitutional Convention met
for the last time to sign the document they had created. We encourage all Americans to observe this important day in our
nation's history by attending local events in your area. Celebrate Constitution
Day through activities, learning, parades and demonstrations of our Love for
the United State of America and the Blessings of Freedom Our Founding Fathers
secured for us.
Baldwin, Abraham, GA
Bassett, Richard, DE
Bedford, Gunning, Jr.,
DE
Blair, John, VA
Blount, William, NC
Brearley, David, NJ
Broom, Jacob, DE
Butler, Pierce, SC
Carroll, Daniel, MD
Clymer, George, PA
Dayton, Jonathan, NJ
Dickinson, John, DE
Few, William, GA
Fitzsimons, Thomas, PA
Franklin, Benjamin, PA
Gilman, Nicholas, NH
Gorham, Nathaniel, MA
Hamilton, Alexander, NY
Ingersoll, Jared, PA
Jefferson, Thomas, VA
Jenifer, Daniel St Thomas,
MD
Johnson, William Samuel,
CT
King, Rufus, MA
Langdon, John, NH
Livingston, William, NJ
Madison, James, VA
McHenry, James, MD
Mifflin, Thomas, PA
Morris, Gouverneur, PA
Morris, Robert, PA
Paterson, William, NJ
Pinckney, C. Cotesworth,
SC
Pinckney, Charles, SC
Read, George, DE
Rutledge, John, SC
Sherman, Roger, CT
Spaight, Richard Dobbs,
NC
Washington, George, VA
Williamson, Hugh, NC
Wilson, James, PA
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ACLU AND CIVIL LIBERTIES
Top Threats to Civil Liberties After 9/11: Q&A w Mike German of
ACLU/former FBI Agent
ReasonTV•1,57
ACLU: TOP TEN THREATS TO CIVIL LIBERTIES
Dec. 2013 flyer, www.aclu.org
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BORDC
[The ACLU is the preeminent NGO defender of Civil Liberties in the US,
but the BORDC also does good work for the people. Here is a sample of their newsletters. –Dick]
BILL OF RIGHTS DEFENSE COMMITTEE
July 2013, Vol. 12 No. 07
View this newsletter as a webpage: http://www.bordc.org/newsletter/2013/07/
________________________________________
NSA spying remains in the spotlight
Over the past month, a series of events have continued to draw attention
to ongoing dragnet domestic surveillance by the National Security Agency, which
began over a decade ago but seized public attention after The Guardian
published previously secret documents leaked by whistleblower Edward Snowden.
________________________________________
BORDC News
BORDC in the news
In the last month, BORDC and coalitions we support across the nation have
appeared in various press outlets to promote concerns about constitutional
rights and the powers of police and intelligence agencies that abuse them.
Read the latest news & analysis from the People’s Blog for the
Constitution
Have you read BORDC’s blog lately? The People’s Blog for the Constitution
has attracted a growing audience that has tripled over the past year. Featuring
news & analysis beyond the headlines on a daily basis, it offers a great
way to stay up to date and informed.
Highlights from the past month include:
• Mourning a National
Holiday by Shahid Buttar
• Secret law thrives,
eroding the courts by Nadia Kayyali
• Comey hearing reveals no
credibility on torture, surveillance byMichael Figura
• “Insider Threat” program
promotes spying on colleagues by Kyla Kuvach
• Northampton takes a
stand against drone surveillance by Isaac Kornblatt-Stier
• Barrett Brown and the
cyber-war drama by Joel Ayala
• Unethical, immoral, and unconstitutional:
Senators speak out onGuantanamo Bay force feedings by Chris Burnett
• Introduction to the
Restore the Fourth movement by Emily Leslie
• What you need to know
about NSA data collection by David Wilson
BORDC joins lawsuit vs. NSA spying, represented by EFF
BORDC to rebrand as BORRN and launch new website
________________________________________
Grassroots News
July 2013 Patriot Award: Scott Sommerville from Fairfax, VA
Every month, BORDC honors an individual who has made an outstanding contribution
in his or her community to the movement
to restore civil liberties and the rule of law. This month, the Patriot
Award goes to Scott Somerville from Fairfax, VA, for his longstanding
commitment to civil liberties.
Grassroots updates
To view campaigns supported by BORDC at a glance, visit our interactive
campaign maps for local coalitions addressing surveillance and profiling by
local law enforcement, or military detention under the NDAA. To get involved in
any of these efforts, please email the BORDC Organizing Team at organizing (at)
bordc (dot) org. We’re eager to hear from you and help support your activism!
• California: Senate
committee approves AB 351 vs. NDAA
• California: Senate
committee approves state immigration bill
• Berkeley, CA: Coalition
sponsors NAACP forum
• San Francisco, CA:
Grassroots coalition challenges NSA spying at political fundraiser
• New York, NY: Coalition
takes action to stop racial profiling
• Northampton, MA: City
Council adopts anti-drone resolution
________________________________________
Law and Policy
Bush lawyer nominated to lead FBI, raising torture, surveillance concerns
On Tuesday, July 9, the Senate Judiciary Committee held a hearing on the
nomination of Bush administration lawyer James Comey to lead the Federal Bureau
of Investigation (FBI) as Director. After generally failing to explore the many
reasons for concern about Comey’s nomination, the Committee unanimously
approved it on July 18, sending it to the full Senate for an impending vote.
Immigration enforcement threatens civil liberties
Pressure for immigration reform has taken a dramatic turn in the Senate.
The bipartisan Gang of Eight recently came together to announce a comprehensive
immigration reform compromise that would have extended citizenship to 11
million undocumented workers until various amendments were added, including one
with various enforcement provisions proposed by Senators Bob Corker (R-TN) and
John Hoeven (R-ND).
Drone strikes found to escalate civilian casualties
The justification for the use of unmanned drones to commit killings
overseas continues to grow thinner. A new report released by Larry Lewis, a
principal research scientist at the Center for Naval Analyses, and Sarah
Holewinski of the non-governmental organization Center for Civilians in
Conflict, reveals that drone strikes are far less accurate than previously
believed.
Guantánamo force feedings draw fire for torture
Three Guantánamo detainees had their plea to stop force-feeding during
the holy month of Ramadan shot down in federal court on July 16. Judge Rosemary
M. Collyer noted her lack of jurisdiction over the case due to Congress’
blockade on federal courts' reviewing “treatment and conditions of confinement”
at Guantánamo.
________________________________________
New Resources & Opportunities
How to organize a protest in your community
On July 4, there were protests in dozens of cities standing in support of
the Fourth Amendment and against unconstitutional NSA spying. The Bill of
Rights Defense Committee is proud to support the Restore the Fourth movement,
and played an especially active role in building a coalition to support the
rally in McPherson Square in Washington, DC. This is a guide we put together
about planning and executing successful protests. Please feel free to
cross-post this anywhere you’d like.
Microgrants offer opportunities for grassroots action
To help encourage outreach, public education, and grassroots
mobilization, BORDC has provided microgrants to coalitions that have
participated in one of BORDC’s anchor convenings, such as the May 2013
convening in the Bay Area, CA. Grants of $300 to $500 are available to help
active coalitions expand their local visibility, host events, and/or build
capacity.
Hold your elected officials and candidates for office accountable: pledge
to support only those who defend your civil liberties
Here's an online opportunity to connect the dots and encourage greater
respect for constitutional values by your state and federal representatives.
________________________________________
Help BORDC restore the rule of law
• Get involved! Volunteer,
organize, raise your voice—we have an opportunity that's right for everyone.
• Read our blog. We
publish the latest civil liberties news, plus analysis beyond the headlines.
• Support our work! Donate
online or mail a check or money order to:
Bill of Rights Defense Committee
8 Bridge Street, Suite A
Northampton, MA 01060
• Follow BORDC on Facebook
and Twitter. Connect with other supporters and help build the movement.
• Spread the word! Forward
this email newsletter to your friends and family.
________________________________________
Bill of Rights Defense Committee
www.bordc.org • info@bordc.org • (413) 582-0110 • Fax: (413) 582-0116
A Constitution for All Times (Boston Review Books)
by Pamela S. Karlan . MIT P, 2013.
Pamela S. Karlan is a unique figure in American law. A professor at
Stanford Law School and former counsel for the NAACP, she has argued seven
cases at the Supreme Court and worked on dozens more as a clerk for Justice
Harry Blackmun. In her first book written for a general audience, she examines
what happens in American courtrooms -- especially the Supreme Court -- and what
it means for our everyday lives and to our national commitments to democracy,
justice, and fairness.
Through an exploration of current hot-button legal issues -- from voting
rights to the death penalty, health care, same-sex marriage, invasive high-tech
searches, and gun control -- Karlan makes a sophisticated and resonant case for
her vision of the Constitution. At the heart of that vision is the conviction
that the Constitution is an evolving document that enables government to solve
novel problems and expand the sphere of human freedom. As skeptics charge
congressional overreach on such issues as the Affordable Care Act and even
voting rights, Karlan pushes back. On individual rights in particular, she
believes the Constitution allows Congress to enforce the substance of its
amendments. And she calls out the Roberts Court for its disdain for the
other branches of government and for its alignment with a conservative agenda. Pub. Notes.
USA
About Us | Careers | Contact Us | Help
Connect
• Overview
• Description
• Table of Contents
• Author Information
• Reviews and Awards
Keeping Faith with the Constitution
Goodwin Liu, Pamela S. Karlan, and Christopher H.
Schroeder
Inalienable Rights
• Serves as a primer for
progressives interested in promoting liberal Constitutionalism
• Authored by three of
America's pre-eminent constitutional scholars
• Challenges
"originalism" and "strict construction" by showing how
constitutional thought has changed throughout American history in light of
major social changes
• Filled with interesting
cases and examples dealing with race, gender, the press, crime, electoral
politics, and the separation of powers
TREATIES
AND WAR
LEAGUE
OF NATIONS AND UNITED NATIONS CHARTERS
Tariq
Ali, Bush in Babylon, Chapter 7, “Empires and Resistance.” Both Charters protest empire and preemptive
invasions, and affirm self-determination and international law. See pp. 191-93 particularly.
UN
CHARTER FORBIDS NATIONAL AGGRESSIONS and UN CHARTER, AS A TREATY, IS US LAW
JUST TO SAY
'VIOLATES INTERNATIONAL LAW' IS MEANINGLESS
AND SAYS
NOTHING TO EDUCATE AS WELL AS WIN SUPPORT.
A BILL OF
PARTICULARS IS NEEDED: THE HOW AND THE WHY
OF THE
VIOLATION.:
THAT THE
UNITED STATES HELPED IMPORTANTLY IN DRAFTING THE U N CHARTER
THAT THE
UNITED STATES SENATE RATIFIED IT BY AN OVERWHELMING MAJORITY
THAT THE U N
CHARTER FORBIDS, EXCEPT AS AND WHEN AUTHORIZED BY THE SECURITY COUNCIL, THE USE
OF FORCE AGAINST ANOTHER STATE, EXCEPT IN CASE OF DEFENSE AGAINST ARMED
ASSAULT,
AND THAT THIS
OFFENSE VIOLATES A NORM PRESCRIBED BY OUR
OWN
CONSTITUTION.
CONSEQUENCES
OF WAR: DOMESTIC MCCARTHISM, ATTACKS ON
CIVIL LIBERTIES
VISIT BY DICK
BENNETT AND PAT SNYDER AUGUST 30, 2013, by Dick Bennett
Pat Snyder drove us from Maumelle , AR to McGehee , AR and the Japanese-American Internment
Camp Museum ,
titled the “Jerome-Rohwer Interpretive Museum
and Visitor Center Arkansas
McGehee, a few miles off the interstate,
looked baked. A little town of about
6,000, it gathered all the little businesses that serviced the agricultural
economy. Its small size and apparent
lack of wealth, and my recollection of the animosity in the US
We turned into the street and
encountered a modest but attractive sign surrounded by a well-tended
flower-garden. And then we saw the
building, the old train station given to the city for the museum. This was the first of the many contributions
we were to discover that had made the project possible. A new roof, new large sign, fresh paint--the
building seemed to offer a confident welcome to visitors.
Inside the door I thought I had entered
another world from the one outside. The
office portal to the museum display greeted us with attractive colors and
display cases of books and selected artifacts.
And the curator, Susan Gallion, welcomed us eagerly, for only a few
persons had visited that day. She was
ready to give us a guided tour in two meanings:
she had the time and she was informed about the museum’s contents.
The museum produced the same surprise as
did the building: it had clearly been
designed and assembled by a professional curator who knew how to design a
complex display and who knew and reported the historical facts. Gone were the anti-“Jap” feelings of WWII;
in every display compassion for the Japanese-American victims of injustice was
palpable, for the explanation of the injustice was set forth calmly and clearly
but emphatically.
Afterward we visited the remains of the
Rohwer camp. For as far as we could
see, where the camp had been is now covered with crops, except for the camp
cemetery. Here we found in roughly
chronological order the graves of the Japanese-Americans who died there. In front had been added an obelisk and
symbolical tank in honor of the Japanese-American soldiers who fought In Italy
and France against Hitler during WWII.
All needed repair, and in fact a sign announced that repairs were to
occur in the summer of 2013, though the work had not yet begun by late August.
We headed back to Maumelle on Highway 65
at Dumas. We had seen a significant
museum, which will gradually become known to the people of Arkansas United Kingdom , Canada ,
and Japan
The truth is told here about a great
injustice committed by our government against a group of innocent citizens and
about a great injury to our Constitution whose Bill of Rights was intended to
prevent such injustices. Our completely
innocent West-coast Japanese-American citizens, on account of the racism and
the fear and panic by leaders and public alike following Pearl Harbor, were
judged guilty by association, uprooted from their homes in a military
operation, and transported more than half-way across the country to alien
Arkansas most of whose citizens were hostile, and forced to live in hastily
assembled barracks for two years. Yet
now in the little town of McGehee
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(Illustration
by Rachel K Dooley)
FEATURES » OCTOBER 17, 2013
Return to Nixonland
How the NSA slipped its leash under Bush and Obama.
Each time we give up a bit of information
about ourselves to the Government, we give up some of our freedom. For the more
the Government or any institution knows about us, the more power it has over
us.
The documents leaked by Edward Snowden and published by the Guardian and
other outlets confirm what privacy advocates have been saying for years: The
government has secretly turned its most powerful weapons of foreign
intelligence surveillance inward on millions of Americans.
How can an ordinary citizen cut through the
brush—with the avalanche of complicated, classified materials released, the
flurry of political finger-pointing, and the various denials and narrowly
crafted dodges? Welcome to a guided tour of the National Security Agency (NSA)
scandal. We’ll explore how we got here and what Nixon’s got to do with it.
Who? Me?
The NSA has rebuffed demands by some in Congress for an estimate of
the number of Americans whose information has been gathered, stored and
searched, but the math is simple. Unless you are a child, a Luddite or a hermit
who has never dialed a phone or used the Internet, records of your phone calls
and online interactions have been captured by the NSA.
This includes your number and everyone you
dial or text, plus how of- ten and how long you talk, as well as your
location—although the NSA has claimed it doesn’t actually use the location
data. In other words, the NSA has the fact of all your calls with your friends,
family, lover(s), bank(s) and doctors’ offices for whatever ails you, along
with calls to psychic hotlines or phone sex workers, if that’s your thing. The
number of innocent Americans affected: at least 260 million.
That’s not all. For nearly a decade, the NSA
was gathering records about Americans’ “Internet transactions,” including
“metadata” such as the “to, from, cc and bcc lines of a standard email,” when
your email was sent and opened, your IP address and location, and an array of
data about you as you search the Internet, and interact with friends and
strangers through social media. That program is no longer authorized by a
secret court in Washington ,
D.C.
Even that’s not all. Though the NSA has
emphasized that it does not obtain the “contents” of your calls or emails
through this program, the government has decided that the contents of all
international phone calls and emails “to or from” Americans and others abroad
are fair game for acquisition by the NSA without a warrant. At least 40 million
American citizens travel internationally each year, and America
And there’s more. Newly declassified documents prove that countless purely “domestic”
conversations between innocent Americans here in the United States
Additionally, the affidavits in lawsuits
filed in 2006 by the Electronic Frontier Foundation present evidence that
shortly after 9/11 the NSA installed “NARUS” devices at AT&T’s main
transmission station in San Francisco and at other telecommunications hubs
across the country. Those devices are designed to make a duplicate of the
communications stream (content and data) as it passes through the system at the
speed of light.
Accordingly, such devices can give the NSA
access to all American domestic and international phone calls and Internet
activity that travel through AT&T, which provides the backbone of the
communications system that other phone and Internet service providers rely on.
So, as a technological matter, if law were no barrier, the evidence indicates
that the NSA could technically acquire, store and analyze almost every word
spoken or written on American phones and computers.
Snowden’s revelations include Power Point
presentations referencing an array of tools—with code names like “PRISM”—the
NSA has used to target the social media activities, Internet searches and
emails of specific people. But there’s still a lot we don’t know. And that’s a
problem in a democracy in which the government is supposed to govern by consent
of the people.
The risk of ‘total tyranny’
Sen. Frank Church (D-Idaho) said after his
investigation of the NSA in 1975, following leaks about President Richard M.
Nixon’s use of the NSA to spy on his enemies, opponents of the war in Vietnam
If this government ever became a tyrant, if a
dictator ever took charge in this country, the technological capacity that the
intelligence com- munity has given the government could enable it to impose
total tyranny, and there would be no way to fight back because the most careful
effort to combine together in resistance to the government, no matter how
privately it was done, is within the reach of the government to know. Such is
the capability of this technology. … We must see to it that this agency and all
agencies that possess this technology oper- ate within the law and under proper
supervision so that we never cross over that abyss. That is the abyss from
which there is no return.
Those were the late Senator Church’s fears
before almost every American had a “smart phone” and before most of us heard of
the Internet—which in the 1970s was merely a computer network within the
Pentagon and a few Silicon Valley companies—let alone traversed it daily.
Indeed, before Google was a word, let alone
an empire; before almost all of our telephone conversations, emails and
transactions of daily life were transmuted into a searchable digital world; and
before a handful of murderers crashed into the World Trade
Center
Now that need is even more urgent.
Along with the seismic transformation in the
way we communicate, the legal controls on the NSA’s powers have been
systematically loosened, if not obliterated, by the White House, Congress and
the courts at the urging of leaders of the military intelligence community.
The NSA says it has “internal controls” but
once information about Americans is stored by the NSA—including in a gargantuan
1-million-square-foot data storehouse being finalized in Bluffdale , Utah
More importantly, how can we ever trust that
the NSA’s new powers won’t be misused by those in power? We already know that
during the Occupy Wall Street
So the question isn’t whether the information
that the NSA has been allowed to gather on Americans will be misused. The
question is, when? And by whom? Perhaps our next president? Religious-
Reactionary Rick (Santorum)? Tea Party Ted (Cruz)? Take-Two Rick (Perry)? You
may laugh, but remember that prior to the 1980 presidential election, Trees-Cause-More-Pollution-Than-Automobiles
Ronald (Reagan) was a joke.
Who in the NSA’s quasi-military hierarchy has
the power to question a demand to provide information in its databases about
specific Americans when made under the authority of the commander in chief, no
matter who the president is or which power-hungry advisors aid the White House
in 2016 or 2020 or beyond?
It’s a state of affairs that would make Nixon
smirk. It’s also why foreign citizens who’ve lived under authoritarian regimes,
in Germany
The past isn’t even past
To understand what happened to the rule of
law since 9/11, it’s important to understand the path of the law before the World Trade
Center
It begins with the Fourth Amendment, which
makes no distinction between “intelligence gathering” and “law enforcement.”
The Constitution speaks instead to the rights of Americans regardless of the
agent that would violate them:
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.
Those words were born of the vanquishing of
an authoritarian tyrant whose officers used “general warrants” to search
colonists at will to protect the crown and its interests.
Surprisingly, it was not until 1967 that the
Supreme Court ruled that the government needed a warrant to listen to
Americans’ phone calls. The following year, in 1968, Congress passed a crime
bill to provide rules for obtaining warrants for wiretaps but—at the secret
urging of the NSA—the legislature exempted surveillance in the name of national
security.
In November of that year, Nixon was elected
president.
In 1969, just six months after taking office,
Nixon directed the NSA to search its files for information on specific
Americans whom he and J. Edgar Hoover had placed on a watch list.
At that time, the existence of the NSA,
formally established in 1952, was so secret that almost no one in Congress knew
about it, and its funding was concealed in the Pentagon’s classified “black
budget.” For decades, the NSA and its predecessors had acted as the
government’s signal corps, listening for radio communications from enemy ships,
tapping into the cables of diplomats of the Soviet Union
and decrypting ciphers sent by spies. Unbeknownst to Congress, the NSA and its
predecessor, the Armed Forces Security Agency, had also been spying on
Americans for decades, making duplicates of all of the international telegrams
sent to or from Americans by “wire” or cable since 1945, as well as gathering
radio transmissions from across the globe through earth-bound satellite
receivers and satellites. By the early 1970s, the NSA’s analysts were reading
over 150,000 telegrams to or from Americans a month under that program, called
“Operation SHAMROCK.”
With this vast and secret
intelligence-gathering apparatus at his disposal, Nixon later expanded his
watch list, directing the NSA to search for anything “subversive” or related to
drug-dealing. In the meantime, in 1972, a case involving Nixon spying on
Americans under the guise of national security, with no link to a foreign
government, made its way to the Supreme Court. In that case, known as the Keith
case, the Court unanimously declared:
The Fourth Amendment freedoms cannot properly
be guaranteed if domestic security surveillances may be conducted solely within
the discretion of the Executive Branch. … The Fourth Amendment does not
contemplate the executive officers of Government as neutral and disinter- ested
magistrates.
In August 1974, in the wake of the Watergate
scandal involving the illegal surveillance activities of the Committee to
Re-Elect the President (CREEP), Nixon resigned in disgrace.
Yet the extent of electronic surveillance
under the administration wasn’t revealed until December 1974, when the New York Times published a front-page story by
Seymour Hersh under the headline “Huge C.I.A. Op- eration Reported in U.S.
Against Anti-War Forces.” The article exposed part of Nixon’s spying under a
program code-named “Operation MINARET,” which made use of the cables the NSA
searched via SHAMROCK and by capturing radio transmissions.
Congress was shocked. During the
investigation led by Sen. Church in 1975, Congress discovered that the NSA had
access to communications involving millions of Americans and that there were
about 1,200 Americans on watch lists, mostly people opposing the Vietnam War.
But the names of some Americans on the watch
list were kept sealed until they were released this September. The newly
declassified documents reveal that the NSA’s spying targeted prominent
Americans even before Nixon took office. According to the National Security
Archive, the NSA “eaves- dropped on civil rights leaders Martin Luther King and
Whitney Young, as well as boxing champion Muhammad Ali, New York Times journalist Tom Wicker, and Washington Postcolumnist
[and humorist] Art Buchwald”— and Sen. Church himself.
In response to Sen. Church’s investigation,
Congress passed the Foreign Intelligence Surveillance Act (FISA) of 1978, over the
objections of a few hard-liners in the Ford administration, including Laurence
Silberman. It was intended to ensure that the NSA was focusing on foreigners
and not on Americans, and “to curb the practice by which the Executive Branch
may conduct warrantless electronic surveillance on its own unilateral
determination that national security justifies it.”
FISA barred the NSA from inten- tionally
acquiring radio signals of the domestic communications of Ameri- cans without a
warrant. It also barred the NSA from acquiring wire communications here that
were to or from Americans, whether intentional or not. And it barred the NSA
from intentionally targeting radio communications to or from a known U.S.
Congress also created a special court, the
Foreign Intelligence Surveillance Court (FISC), to hear these warrant requests.
At the same time, Congress established permanent Senate and House Intelligence
Committees to conduct oversight of the NSA, CIA and more.
Project MINARET and Operation SHAMROCK were
said to be terminated when FISA passed, and the public believed such activities
were barred. By almost all accounts, the NSA was directing its powerful
surveillance tools outside of the United States
Then came 9/11.
Checks and balances?
This much is clear: In the weeks following
9/11 a handful of men in the Executive Branch literally rewrote our rights as
citizens. While Americans were sold war to secure “freedom” against al Qaeda,
our freedoms at home were deliberately undone in the name of protecting us.
That revision of our rights occurred on two
fronts. One was a public debate over the Patriot Act, which obscured the
second: even more dramatic changes being orchestrated by Vice President Dick
Cheney’s office behind the scenes.
As the Pentagon prepared for war in
Afghanistan and Congress passed an “Authorization for the Use of Military
Force,” the George W. Bush administration sent Congress a wish list of changes
to the law that were later titled “Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001,” otherwise known as the “USA Patriot Act,” or Patriot Act.
The Patriot Act changed some parts of FISA,
but nowhere did it authorize the NSA to acquire all of Americans’ phone or
internet records. Nor did it change FISA’s rules to allow Operation
SHAMROCK-style monitoring of the content of Americans’ international
communications.
While Congress was considering the Patriot
Act, the White House had already secretly changed the rules for NSA
surveillance on these shores. Arch-autocrat David Addington (Vice President
Cheney’s right-hand man) hand-picked one Justice Department official—the newly
hired John Yoo—to write a legal memo justifying the NSA surveillance programs
that Edward Snowden would expose 12 years later. Yoo wrote a secret memo
asserting that the president is not bound by FISA’s legal rules for warrants
because he has plenary powers as commander in chief.
Attorney General John Ashcroft, who was busy
pushing the Patriot Act, did not even know Yoo had written that memo about what
became known as the “President’s Surveillance Program” when he cosigned the
president’s first authorization document on Oct. 5, 2001 and the NSA began
asking telecommunications companies for access to their switches.
It was two years after the launch of the new
NSA surveillance before the White House told even one judge on the Foreign
Intelligence Surveillance Court (FISC) about the programs. That judge, the
chief judge, was not asked to approve the surveillance and was not allowed to
tell the other FISC judges about it.
In 2004, the Justice Department hunkered down
to create a new legal memo rationalizing the program as implicitly authorized
by the Authorization to Use Military Force in Afghanistan
While this battle was brewing and the
presidential election was in full swing, James Risen and Eric Lichtblau of the
New York Times were onto a story about the NSA’s domestic surveillance, but the
White House claimed the story would hurt national security and risk American
lives, and so publisher Arthur Ochs Sulzberger, Jr. held it until more than a
year after the election.
On Dec. 16, 2005, the Risen-Lichtblau story
broke: “Bush Lets U.S. Spy on Callers Without Courts.” The Bush administration responded by
declassifying the least controversial component of the program and rebranding
it as the “Terrorist Surveillance Program,” or TSP. As Bush famously quipped in
trying to distract from the revelations: “If somebody from al Qaeda is calling
you, we’d like to know why.”
In the midst of the uproar over the NSA
spying, the Patriot Act was reauthorized in March 2006.
But in May of that year, more leaks came,
with USA Today publishing a story that said the NSA was “amassing
information about the calls of ordinary Americans—most of whom aren’t suspected
of any crime.”
By the time these extraordinary surveillance
programs had been operational for six years, nearly 3,000 unelected executive
branch employees (and an unknown number in the private sector) knew of the
programs, but only 60 out of the 535 members of Congress.
Nevertheless, in 2007, aided by lobbying from
telecommunications companies like AT&T—which feared it would be held
criminally or civilly liable for violating the Wiretap Act and FISA— Director
of National Intelligence Mike McConnell began a full-court press to get FISA
changed to give retroactive immunity to the companies and Congress’s blessing
to the programs. After a court struck down a portion of the program, McConnell
demanded Congress temporarily authorize it through the Protect America Act,
which was re- placed a few months later in 2008 by the FISA Amendments Act.
Then-Sen. Obama, despite expressing earlier
concerns about the NSA’s warrantless electronic surveillance, supported those
bills as he began to seek the White House. As president, he has embraced those
(and other) controversial uses of power that were initiated by the Bush administration.
Although he immediately sought to shut down Guantánamo, only to be thwarted by
Congress, on the issue of NSA spying he has largely continued the programs and
defended them. There has been little “change” or “hope” when it comes to
protecting Americans’ privacy from the NSA’s surveillance powers. It’s been
mostly business as usual under for the NSA, FBI and DHS.
Moreover, in light of the full weight of the
Snowden revelations, when one looks at the statutory constraintson the NSA now,
the limits in FISA that ostensibly protect Americans’ rights look slippery.
For example, Section 702 of the FISA
Amendments Act repeats the traditional rule that the NSA cannot acquire
communications that “intentionally target any person known at the time of
acquisition to be located in the United States
Similarly, the NSA “may not intentionally
acquire any communication as to which the sender and all intended recipients
are known at the time of the acquisition to be located in the United States
Thus the protections in the FISA statute that
at first appear to be shields against spying on Americans, appear upon closer
inspection to operate as swords.
Where’s the Fourth Amendment?
Three rulings issued by FISA judges
hand-picked by the Chief Justice have narrowly construed people’s Fourth
Amendment rights when it comes to two core issues: the rules for content and
data acquired by the NSA.
The Bush administration set the stage for its
evasion of the Fourth Amendment in 2002, when it asked for a ruling from the
FISA Court of Review (FISCR), which oversees FISC, in a case involving a
Patriot Act provision changing the purpose of FISA surveil- lance. Judge Silberman
(who testified against FISA in 1978) and two other judges heard government
arguments— arguments originally concocted by Yoo. Silberman acted like an
advocate from the bench, arguing that the Constitution does not require a
warrant before the government can acquire the content of Americans’
communications.
The FISCR ruling opined that the
constitutional test for searches in intel- ligence cases was “reasonableness,”
not a warrant, and “the key to the reason- ableness of any search is the
exterior threat.” In 2008, an unnamed “Internet Service Provider” (ISP)
challenged “directives” issued after FISA Amendments Act as unconstitutional,
but the FISCR ruled that the Constitution did not require a warrant based on
probable cause to demand content of communications. In balancing whether a
search order was “reasonable” under the Fourth Amendment, the court ruled that
national security is of the “highest order of magnitude.”
In the most recent decision issued by the
FISC, a lower court judge ruled that the NSA could acquire Americans’ call
records en masse because Americans have “no reasonable expectation of privacy”
in their phone or Internet data— a claim based on a Supreme Court decision from
1979 that most Americans have never heard of.
In that obscure case, Smith v. Maryland,
a robbery suspect named Michael Lee Smith sued the state after police obtained
his call records from his phone company without a search warrant. The Supreme
Court, dominated by four new Nixon appointees, ruled that Smith had no
constitutional expectation of privacy in information about himself conveyed to
a third party, such as the phone company. (Justices Thurgood Marshall, Potter
Stewart and William J. Brennan, Jr. dissented, noting that using a telephone
does not carry with it an assumption that this information will be released to
others, let alone the government.)
The FISC embraced this precedent despite
dramatic changes in technology since the original decision. In the old days,
the numbers you dialed could be obtained by law enforcement through a court
order, without accessing the content of the conversation. But in the digital
age, if the government has access to the calls as they transit the phone
company in fiber optic cables, the government can duplicate the content as it
seizes data.
Despite these differences, the FISC ruled
that Americans’ electronic call records can be vacuumed up by the NSA.
Additionally, the court servilely stated that
the NSA’s computers work best when they have records of all of your calls—so
all the call records they must have.
The FISC also claimed that the surveillance
was consistent with the statutory rules for access to third party records, as
modified by the Patriot Act, which allow courts to order businesses to turn
over records “relevant to an authorized investigation.” The court’s order
deemed all Americans’ phone re- cords to be relevant to a general investigation
to prevent terrorism because any record might be a link to a potential
terrorist.
If everything is relevant or potentially
relevant, then relevance means nothing.
Now what?
The good news is that Americans are rejecting
these rationales and are doing so in a way that transcends traditional
political party divides. A growing number of Americans dissent from these
policies. Most Americans know they have should have a right to privacy in their
communication and Internet records. A growing number of Americans believe that
the content of their emails, phone calls and Internet searches should not be
given to the NSA if they have done nothing wrong.
No government agency should be allowed to
access the backbone of America ’s
communications infrastructure inside or outside the United States
Two of the most recent directors of national
intelligence, James Clapper (USAF-ret.) and Mike McConnell (USN-ret.) have led
efforts to turn the NSA inward on Americans and have misled Americans about the
scope of these powers in the name of keeping us safe. Both cashed out their
military service with the private-sector consulting firm of Booz Allen Hamilton
(Edward Snowden’s former employer) and then moved to top government “civilian.”
Concerns about trusting the NSA are only
underscored when the government has been deceptive in its communications with
the American people and with congressional and judicial overseers. In March,
Sen. Ron Wyden (D-Ore.) asked Clapper: “Does the NSA collect any type of data
at all on millions or hundreds of millions of Americans?” Clapper replied stoutly,
“No, sir.”
This denial was exposed as a demonstrable lie
four months later, when the Snowden materials surfaced.
The NSA should only be allowed to access the
contents of Americans’ calls or emails based on an individualized warrant
predicated on probable cause of wrongdoing. As for international calls and
emails to or from an American, they should be subject to the requirement of an
individual warrant on one end before they can be searched.
No American’s name should be queried in the
NSA database of calls, emails and Internet searches without an individualized
warrant.
Americans’ phone and Internet data should not
be acquired at all, unless it is directly connected (in one or two hops) to a
specific person who is a legitimate target of a terrorism or espionage
investigation.
We also need better protections for
information we have already “shared” with a company—including the data that
trails you as a result of digital communications—to protect our inherent right
to privacy against both the private sector and government.
As Sen. Sam Ervin (D-N.C.)—a staunch advocate
of civil liberties despite his Southern segregationist roots—said in 1974 after
investigating government spying on Americans, “Each time we give up a bit of
information about ourselves to the Government, we give up some of our freedom.
For the more the Government or any institution knows about us, the more power
it has over us. When the Government knows all of our secrets, we stand naked
before official power. Stripped of our privacy, we lose our rights and
privileges. The Bill of Rights then becomes just so many words.”
ABOUT THIS AUTHOR
Lisa Graves is the Executive Director of the Center for Media and Democracy and formerly served as Deputy
Assistant Attorney General at the U.S. Department of Justice and as the Senior
Legislative Strategist for the American Civil Liberties Union on national
security issues. She has been called to testify before Congress as an expert
witness on national security and civil liberties issues.
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Contents US CONSTITUTION Newsletter
#4
Patriot Act
versus US Constitution
Understanding
the Patriot Act (PBS NewsHour)
Nader:
Empire vs. Constitution
Hedges: So
Far Right Wing
Constitution
and Declaration of Independence (2)
Contents of #5 Sept. 17, 2012
Constitution
Day
Constitution
Day, Senator Byrd
Celebrate
Constitution Day 2012
CCR
Celebrates Michael Ratner
People for
the American Way
Unconstitutional
Presidents
Secrecy vs
Democracy
US Empire
vs. Constitution
Contents #6 Constitution Day Sept.
17, 2013
BORDC
Organizing Protests
President’s
Proclamation
Constitution
Week
National
Constitution Center
Education
and Celebration
Treaties
are Law
BORDC
August 2013
Constitution
Project: False Confessions
|
END CONSTITUTION DAY NEWSLETTER SEPT. 17, 2014
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