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Friday, June 14, 2013

Challenging Unconstitutional Spying

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Stephen Lendman

Edward Joseph Snowden revealed what's vital to know. He exposed unconstitutional spying. He did so courageously. 

The 1989 Whistleblower Protection Act protects federal employees who report misconduct. Federal agencies are prohibited from retaliating against those who do so. Don't expect rogue Obama officials to act responsibly.

Whistleblowers may report law or regulatory violations, gross mismanagement, waste, fraud, abuse of authority, and/or acts endangering public health, welfare or safety.

Unconstitutional spying violates core rule of law principles. Doing do gravely compromises public health, welfare and safety.

When governments ill-serve, exposing wrongdoing is vital. It takes courage to do so. It involves doing what's right because it matters. 

Snowden represents the best of what America purports to stand for. Key executive, congressional and judicial officials reflect the worst.

Washington is Big Brother writ large. Pervasive spying is longstanding policy. It's worse now than ever. Everyone's watched everywhere all the time. 

Doing so is unconstitutional. A previous article explained. Laws enacted in violation of constitutional provisions lack legitimacy. 

The USA Patriot Act tramples on Bill of Rights protections. It compromises due process, habeas, free expression, association, and protection from unreasonable searches and seizures. 

Section 215 oversteps and then some. It's misused. Its language is vague and deceptive. It's used to permit metadata-mining. It allows police state investigatory practices. Doing so pertains to alleged suspects, real or contrived. It authorizes government access to "any tangible item." 

Included are financial records and transactions, education and medical records, phone conversations, emails, other Internet use, and whatever else Washington wants to monitor.

FBI powers are sweeping. They're greatly enhanced. They're used extrajudicially. Anyone can be spied on for any reason or none at all. No probable cause, reasonable grounds, or suspicions are needed. Exercising free expression makes you vulnerable.

Section 215 is unconstitutional. It permits warrantless searches without probable cause. It violates 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.

Doing so turns constitutional rights on their head. So do disturbing Supreme Court rulings. Miller v. United States (1976) and Smith v. Maryland (1979) exclude privacy protections when information exchanged is shared with one or more third parties.

In contrast, United States v. US District Court (1972) upheld Fourth Amendment protections in cases involving domestic surveillance targeting a domestic threat. Justices ruled unanimously.

In US v. Jones, Supreme Court Justice Sonia Sotomayor acknowledged the need to update Fourth Amendment protections, saying:

I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
At issue is upholding ALL constitutional rights more than updating or revisiting them. Sotomayer didn't explain. Unless done, freedom no longer exists.

Stop Watching Us is a coalition of 86 civil liberties groups and Internet companies. They're united in denouncing lawless NSA spying. They wrote Congress. They urged reinstituting the 1970s Church Committee (the US Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities).

Frank Church chaired it in 1975. It was a precursor to the Senate Select Committee on Intelligence. It investigated lawless Watergate-related FBI, CIA and NSA practices.

In their open letter, signatories said:

We write to express our concern about recent reports published in the Guardian and the Washington Post, and acknowledged by the Obama Administration, which reveal secret spying by the National Security Agency (NSA) on phone records and Internet activity of people in the United States. 
The Washington Post and the Guardian recently published reports based on information provided by a career intelligence officer showing how the NSA and the FBI are gaining broad access to data collected by nine of the leading US. 
Internet companies and sharing this information with foreign governments. As reported, the US government is extracting audio, video, photographs, e-mails, documents, and connection logs that enable analysts to track a person's movements and contacts over time. 
As a result, the contents of communications of people both abroad and in the US can be swept in without any suspicion of crime or association with a terrorist organization. 
Leaked reports also published by the Guardian and confirmed by the Administration reveal that the NSA is also abusing a controversial section of the PATRIOT Act to collect the call records of millions of Verizon customers. 
The data collected by the NSA includes every call made, the time of the call, the duration of the call, and other "identifying information" for millions of Verizon customers, including entirely domestic calls, regardless of whether those customers have ever been suspected of a crime. 
The Wall Street Journal has reported that other major carriers, including AT&T and Sprint, are subject to similar secret orders. 
This type of blanket data collection by the government strikes at bedrock American values of freedom and privacy. 
This dragnet surveillance violates the First and Fourth Amendments of the US Constitution, which protect citizens' right to speak and associate anonymously and guard against unreasonable searches and seizures that protect their right to privacy. 
We are calling on Congress to take immediate action to halt this surveillance and provide a full public accounting of the NSA's and the FBI's data collection programs. We call on Congress to immediately and publicly: 
1. Enact reform this Congress to Section 215 of the USA PATRIOT Act, the state secrets privilege, and the FISA Amendments Act to make clear that blanket surveillance of the Internet activity and phone records of any person residing in the US is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court. 
2. Create a special committee to investigate, report, and reveal to the public the extent of this domestic spying. This committee should create specific recommendations for legal and regulatory reform to end unconstitutional surveillance. 
3. Hold accountable those public officials who are found to be responsible for this unconstitutional surveillance. 
Thank you for your attention to this matter." 
Advocacy for Principled Action in Government 
American Booksellers Foundation for Free Expression

American Civil Liberties Union

American Civil Liberties Union of California

American Library Association


Association of Research Libraries

Bill of Rights Defense Committee



Calyx Institute


Center for Democracy and Technology

Center for Digital Democracy

Center for Financial Privacy and Human Rights

Center for Media and Democracy

Center for Media Justice

Competitive Enterprise Institute

Consumer Action

Consumer Watchdog


CREDO Mobile

Cyber Privacy Project

Daily Kos

Defending Dissent Foundation

Demand Progress

Detroit Digital Justice Coalition

Digital Fourth

Downsize DC


Electronic Frontier Foundation

Entertainment Consumers Association

Fight for the Future


Foundation for Innovation and Internet Freedom

Free Press

Free Software Foundation

Freedom of the Press Foundation


Friends of Privacy USA

Get FISA Right

Government Accountability Project

Greenpeace USA

Institute of Popular Education of Southern California (IDEPSCA)

Internet Archive, LLC

Knowledge Ecology International (KEI)

Law Life Culture

Liberty Coalition

May First/People Link

Media Alliance
Media Mobilizing Project, Philadelphia



National Coalition Against Censorship

New Sanctuary Coalition of NYC

Open Technology Institute

Participatory Politics Foundation

Patient Privacy Rights

People for the American Way

Personal Democracy Media


Privacy and Access Council of Canada

Public Interest Advocacy Centre (Ottawa, Canada)

Public Knowledge

Privacy Activism

Privacy Camp

Privacy Rights Clearinghouse

Privacy Times


Rights Working Group

Rocky Mountain Civil Liberties Association

Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic

Sunlight Foundation

Taxpayers Protection Alliance


The AIDS Policy Project, Philadelphia

TURN-The Utility Reform Network

Urbana-Champaign Independent Media Center

William C. Velasquez Institute (WCVI)

World Wide Web Foundation
Benjamin Franklin was clear and unequivocal saying:
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.
Sacrificing freedom for real or contrived security assures losing both.

Article 12 of the Universal Declaration of Human Rights states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
The above groups demand accountability. They want lawless practices stopped. They want Congress to do what so far it's avoided.

Members are fully briefed on what's ongoing. So are high-level administration and judicial authorities. They're complicit in unconstitutional spying.

They subvert, twist or ignore fundamental rule of law principles. Doing so makes America a police state. It's more so than any other. Lawlessness persists with technological ease. 

Spying includes ways most people can't imagine. Anything electronic can watch us. TVs can be programmed spy on or off. So can light switches, sockets, and whatever's plugged into them.

Universal NSA spying is policy. Ending what can't be tolerated is essential. On June 11, the ACLU filed suit. ACLU v. Clapper "challenge(s) NSA's Patriot Act phone surveillance."

At issue is fundamental speech, association and privacy rights. On June 10, the ACLU and Yale Law School's Media Freedom and Information Access Clinic (MFIAC) filed a motion with the Foreign Intelligence Surveillance Court (FISC).
It's rubber-stamp. It approves virtually all government warrant requests. It's longstanding policy. Eleven US district court judges serve staggered terms up to seven years. They're chosen from at least seven judicial circuits.

Supreme Court Justice John Roberts selects them. He, Antonin Scalia, Samuel Alito, Anthony Kennedy, and Clarence Thomas are Federalist Society members.

They're ideological extremists. They support rolling back civil liberties. They spurn justice. They do so in defense of wealth, privilege and power. They subvert constitutional protections consistently.

ACLU and MFIAC seek "release of secret court opinions that permit the government to acquire Americans' phone records en masse." 
The public has a right to know the legal justification for the government's sweeping surveillance - but, until now, those judicial opinions have remained a heavily guarded secret.
Police states operate this way. America's by far the worst. Most people don't know. Few care enough to find out.

Americans are by far the most over-entertained, under-informed dismissive people anywhere. If they won't defend rights too important to lose, who will?

Administration and congressional members claim FISC judges approved metadata-mining. They're complicit with political leaders. It bears repeating. Police states operate this way.

Officials involved shroud pervasive lawlessness in secrecy. People have a right to know. ACLU and MFIAC want FISC opinions made public.

In May 2011, the ACLU filed an FOIA request. It did so for information on Washington's use and interpretation of Patriot Act Section 215.

Justice Department stonewalling followed. Obama heads the most secretive government in US history. Doing so is undemocratic, lawless and contemptible. Congress and federal courts are complicit.

Releasing FISC opinions is vital. It's important to reveal what people have a right to know. ACLU's constitutional lawsuit demands it.

When rogue officials usurp "chillingly expansive surveillance powers, it's all hands on deck," said ACLU.

At stake are fundamental freedoms. They're lost unless aroused people care enough to want them back. They'll have to act responsibly to get them. No one will do it for them.

Stephen Lendman lives in Chicago and can be reached at His new book is titled How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War. Also visit his blog site at 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.

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