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How the NSA, FBI Easily Out-Maneuver So-Called U.S. Gov’t Oversight

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English: The Seal of the United States Federal...

English: The Seal of the United States Federal Bureau of Investigation. For more information, see here. Español: El escudo del Buró Federal de Investigaciones (FBI). Para obtener más información, véase aquí (Inglés). (Photo credit: Wikipedia)

The seal of the U.S. National Security Agency....

The seal of the U.S. National Security Agency. The first use was in September 1966, replacing an older seal which was used briefly. For more information, see here and here. (Photo credit: Wikipedia)

Over 20 congressional bills aim to address the crisis of confidence in NSA surveillance. With Patriot Act author and Republican Congressman Jim Sensenbrenner working with Vermont Democratic Senator Patrick Leahy on a bipartisan proposal to put the NSA’s metadata program “out of business“, we face two fundamentally different paths on the future of government surveillance.

One, pursued by the intelligence establishment, wants to normalize and perpetuate its dragnet surveillance program with as minimal cosmetic adjustments as necessary to mollify a concerned public. The other challenges the very concept that dragnet surveillance can be a stable part of a privacy-respecting system of limited government.

Pervasive surveillance proponents make two core arguments.

First, bulk collection saves Americans from foreign terrorists. The problem with this argument is that all publicly available evidence presented to Congress, the judiciary, or independent executive branch review suggests that the effect of bulk collection has been marginal. Perhaps, this paucity of evidence is what led General Alexander and other supporters to add cyber security as a backup exigency to justify the program.

The second argument that defenders of mass surveillance offer is that detailed, complex and faithfully-executed rules for how the information that is collected will be used are adequate replacements for what the fourth amendment once quaintly called “probable cause” and a warrant “particularly describing the place to be searched, and the persons or things to be seized”. The problem with this second argument is that it combines two fundamentally incompatible elements.

Mass surveillance represents a commitment to near-universal all-seeing gaze, so as to assess and respond to threats that can arise anywhere, at any time. Privacy as a check on government power represents a constitutional judgment that a limited government must have limited power to inspect  our daily lives, and that an omniscient government is too powerful for mere rules to restrain. The experience of the past decade confirms this incompatibility. Throughout its lifetime, NSA dragnet surveillance has repeatedly and persistently violated any rules in place meant to constrain it.

After 11 September 2001, and until 2004, the President’s Surveillance Programs (PSP) simply operated outside the law. The 2009 inspectors general report (pdf) on these programs explained that, initially, the White House obtained a veneer of legality by soliciting an opinion from the Office of Legal Counsel. It then deployed security clearance strategically to insulate the OLC lawyer who had blessed the illegal program from the scrutiny of OLC’s normal internal review processes. After 2004, professionally conscientious lawyers at the Department of Justice forced the White House to modify some of the programs and shift others to collection based on National Security Letters (NSL).

 from 2003 to 2005, the FBI created an alternative basis for dragnet surveillance by issuing over 140,000 NSLs that were under-reported to congressional oversight.


Written by voiceoftruthusa

October 17, 2013 at 4:55 am

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