Admitting the NSA is out of control is just the first step

It is time for a comprehensive reassessment of what we will allow our intelligence services to do in the name of protecting us. Photo: Director of National Intelligence James Clapper / AP

WASHINGTON, June 8, 2013 ― Members of Congress are expressing their concern and outrage over the latest revelations of widespread data gathering by the NSA. It is astonishing that they have only just discovered this problem; it has a history going back 50 years, and they voted for much of the legislation which enabled this kind of widespread violation of citizen rights.

After years of pretending the problem of unjustified and unwarranted surveillance was just a boogeyman of the lunatic fringe, people who should always have known better are now confronting the product of decades of not holding intelligence agencies responsible for their actions.


SEE RELATED: Admitting the NSA is out of control is just the first step


While objections are spreading among Republicans and civil libertarians, the Obama administration and many loyal Democrats in Congress are leaping to defend the NSA programs which have obtained user data and access to records and content of communications through online and telephone networks. 

Even Rep. James Sensenbrenner, R-Wisc., is “extremely disturbed by what appears to be an overbroad interpretation of the [PATRIOT] Act.” If only those concerns had been part of his thinking when he sponsored the PATRIOT Act and put its overly broad surveillance mandate into effect.

This is another issue which has brought together civil libertarians on the political left and the political right against the establishments of both political parties. Once again we find the ACLU siding with the Liberty Republicans in the Senate, objecting to government violations of the rights of individuals.

Senator Ted Cruz described the NSA’s actions as “an unprecedented intrusion into Americans’ personal phone records and potentially into their broader online activities.”  Senator Rand Paul, R-Ky., described it as “an astounding assault on the Constitution.”

A few prominent Democrats have joined them in expressing concern, like Senator Ron Wyden of Oregon, who issued a statement saying, “I believe that when law-abiding Americans call their friends, who they call, when they call, and where they call from is private information. Collecting this data about every single phone call that every American makes every day would be a massive invasion of Americans’ privacy.”


SEE RELATED: NSA out of control: We the people at fault


The ACLU has been fighting government surveillance programs for decades. Deputy Legal Director Jameel Jaffer called for full disclosure of the latest surveillance programs, writing that, “From a civil liberties perspective, the program could hardly be any more alarming. It’s a program in which some untold number of innocent people have been put under the constant surveillance of government agents.”

Many in Congress have stepped forward to defend the administration and the NSA, including Democratic Senators Diane Feinstein and Harry Reid, and Republican Lindsey Graham, making the argument that heightened levels of communications monitoring are necessary to protect Americans from terrorists and that these programs have been going on for several years with no objections raised.

Of course it may have been difficult for people to raise objections when they did not know these programs were going on.

What is also being overlooked in the furor over Verizon revelations is that this is just the tip of a huge iceberg of covert surveillance which goes back long before 9/11. Republicans are trying to suggest that these are new programs they can blame on Obama, but if they are looking for Democrats to blame, they ought to be looking at Lyndon Johnson and Jimmy Carter.


SEE RELATED: The NSA isn’t our friend anymore


We should step back and look at the big picture. Gathering data from Verizon is a tiny fraction of what has been going on. Add to that the monitoring of emails and tweets and online posts and comments under the Prism program. Then add in all of the special search powers granted by the PATRIOT Act after 9/11, including warrantless wiretaps and seizure of documents using National Security Letters. Then consider the power under FISA to allow wiretaps and phone monitoring which was expanded after 9/11, but goes back all the way to legislation passed in 1978. 

Even without legislative authorization, programs like these have a long history going back to the Johnson era when the NSA first began Project Echelon. Echelon had the capacity to monitor all phonecalls inside the U.S. and from the U.S. to other countries. With the limitations of analog technology, they could only monitor targeted individuals, but as technology has improved to permit large-scale computer filtering and digital data processing, their ability to monitor communications has expanded astronomically.

What lies beneath the surface of these recent discoveries and accusations is a long-term pattern of covert surveillance of citizens on an enormous scale. It seems quite clear that all of our land-line and cell phone communications have been monitored for decades, and that similar monitoring and analysis of our online communications has been going on for far longer than is being admitted. The NSA has quietly taken the authority given to them by FISA and the PATRIOT Act and other measures and expanded on it to gain access to every form of electronic communication and all sorts of private and personal data of innocent citizens. 

Some of this was done legally behind closed doors. Some of it was done through intimidation, as was the case with Prism and the various “cooperative” internet services.  Some of it was done in ways which seem to clearly be illegal or at least under an unjustifiably broad interpretation of the law.

Now that this is all becoming public it ought to be provoking a Constitutional crisis. It raises the question of whether the Fourth Amendment has any meaning at all in a digital age and whether citizens should have any expectation of privacy in their communications at all.

The Bill of Rights was not written in anticipation of changes in technology, but it was written in broad terms to protect fundamental rights which have not changed. Terrorism and other threats to the country are not new, and primitive though communications were in those days, there is no meaningful difference between the sanctity of the mail which has been enshrined in federal law from our earliest days and the right to privacy in an email or in one’s personal data.

The vigilance of a free people should always be awake, but fear has turned our vigilant eye away from the actions of our government for far too long. It is time and really well past time to confront those fears and take action against the monster which they have created. 

It is time for a comprehensive reassessment of what we will allow our intelligence services to do in the name of protecting us. We need to review FISA and the PATRIOT Act and all the lesser enabling legislation which has brought us to this point. A full audit of the practices of the NSA and other security agencies seems clearly called for and it should result in a unified and comprehensive intelligence policy approved and regularly reviewed by Congress. This policy should set clear limits on information gathering and communications monitoring and provide absolute protections for the rights of citizens, especially rights to privacy, free speech and due process of law.


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Dave Nalle

Dave Nalle has been writing political analysis since the 1980s for newspapers, magazines and now online journals. He is currently Execitive Director of the Center for Foreign Policy Priorities, is on the board of the Coalition to Reduce Spending, and served four years as National Chairman of the Republican Liberty Caucus.

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