President Ronald Reagan once famously quipped the nine most terrifying words a U.S. citizen can hear are, “I’m from the government and I’m here to help.” One can only imagine what folksy wisdom the Gipper would have for us today, when facing a massive surveillance Panopticon operating without accountability and on the premise that we trust it do what is right. Probably a wistful chuckle, followed by, “I wish you good luck with that.”
Since the Clinton Administration, privacy watchdogs have warned that the government’s appetite for information is insatiable, and without proper oversight, the personal privacy of citizens would be in jeopardy. These warning calls increased following the 9/11 terror attacks, when sweeping legislation such as the USA PATRIOT Act was rushed through Congress with few specifics as to what data could be collected, and who is ultimately responsible for holding these agencies accountable. Now, after more than a decade-and-a-half of secret court orders, vague legislative direction, and virtually no oversight by Congress or the Courts, we are seeing the true extent of the damage.
According to a report last week from Circa, which reviewed previously classified court documents related to the National Security Agency’s secret spy program, the NSA routinely conducted illegal surveillance on US persons. The violations, which used prohibited “U.S.-person identifiers,” occurred in a staggering five percent of all such searches, illustrating an intentional pattern of abuse rather than the occasional accident. Moreover, Circa also reports “there was a three-fold increase in NSA data searches about Americans and a rise in the unmasking of U.S. person’s identities in intelligence reports after Obama loosened the privacy rules in 2011.”
Yet, as disturbing as these violations of the Fourth Amendment are, an even greater problem is that it took until October of last year for these issues to be reported to the secret Foreign Intelligence Surveillance Court. In response to what can only be a deliberate attempt by the government to obfuscate illegal misconduct, the FISA Court condemned the NSA, describing their actions as an “institutional lack of candor.” A better term for it would be, “bald-faced lying.”
From the outset of these spy programs, intelligence officials and their cronies in Congress spurned any attempt at greater oversight by the Congress; citing “national security” as their excuse, and promising that everything they do is legal and aboveboard. Even when officials are caught outright lying, such as when former Director of Intelligence James Clapper told Congress the NSA does not “wittingly” collect information on innocent American citizens though knowing full-well it did, they somehow are given a free pass by Congress out of some post-9/11 “need to protect America” mentality. This has to stop.
The leaks of illegal NSA activity by Edward Snowden should have been the red flag that serious reforms were needed. Unfortunately, other than Sen. Rand Paul’s 2015 filibuster to force expiration of Section 215 of the USA PATRIOT Act, no other meaningful attempts to rein in the NSA have been taken; despite much rhetoric to the contrary.
Evidence presented in the Circa report cannot continue to be ignored by a Congress that refuses to recognize gross constitutional problems within America’s national security apparatus, as well as its duty to investigate and fix such problems. The NSA cannot be trusted to police itself; not that should it ever have been given such autonomy to begin with. Congress must, for the good of the Constitution, reassert control over the agency and its programs.
Of course, NSA supporters who seem fit to let the agency do as it pleases without regard to the legality of its actions, will point to recent terror attacks as reason not to rock the boat; but it is not as if the federal government does not have, and would continue to have, a full arsenal of tools at its disposal to identify, monitor and thwart real terrorist threats. Let us not also forget that several of these recent attacks, including the tragic Manchester bombing this month, were perpetrated by individuals already “known” to intelligence agencies.
Republicans in Congress should seize this opportunity to propose and pass legislation that places clear limits on spy agencies, including what information they can collect and how long they can store this information, to bring the USA Patriot Act and related laws more in line with the law and the Fourth Amendment. A “Privacy Constitution” of sorts for domestic spying would be a homerun for the GOP and President Trump, and would go a long way in making up for numerous recent opportunities the GOP has missed to demonstrate its traditional deference to individual privacy and the Constitution.
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