A Fig Leaf

There is a major separation of powers issue with the current surveillance arrangement:

The standard for permitting a query of the database of internal US phone calls is a “reasonable, articulable suspicion” of terrorist activity, Inglis says.

Only 20 analysts within the NSA are empowered to approve targeting US-based phone conversations, he says. One of those 20 analysts, or their two supervisors – 22 people total – must sign off on any domestic targeting, he says. [link]

The intelligence and law enforcement officials as subject to “checks and balances“. But they clarified, in the most detail provided publicly thus far, that most of those checks are internal.

James Cole, the deputy attorney general, said that the NSA needs “reasonable, articulable suspicion” of involvement in terrorism before searching the millions of Americans’ phone records that it collects. But, Cole said: “We do not have to get separate court approval for each query.”

Instead, the NSA sends an “aggregate number” of times it has searched the database every 30 days to the secret Fisa court that oversees surveillance, while also sending a separate report each time NSA analysts inappropriately search the database. Alexander’s deputy, Chris Ingliss, said NSA analysts searched the database 300 times in 2012 in total.

Representative Adam Schiff, Democrat of California, said that “it may be valuable to have court review prospectively”. [link]

So 22 people in an executive branch agency decide for themselves whether a search of millions of records of communications involving American citizens should go forward, and then tell a judge once a month how many times they searched the database. Fourth Amendment refresher:

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.

Key phraseology: “particularly describing“, “to be searched”, “to be seized”

The warrant is to issue before the search takes place, and there must be a specific description to the issuing authority of the search to be performed. From all appearances, neither of these conditions are satisfied by the NSA’s internal controls on its surveillance tools.

NSA employees are acting as their own judges, issuing their own warrants, and then asking for the FISA court’s rubber-stamp approval after the fact. NSA’s arrangement seeks judicial oversight for searches up to one month after they’re already carried out. All evidence gathered through these methods would be inadmissable before any normal, non-secret court. There’s zero value in getting a warrant after the search or seizure has been executed: by then, it’s too late, liberties have already been violated, and any objection by a judge after the fact would be a dead letter.

This is a fig leaf, pure and simple, and while it may make the president and others in government feel good that they are going to great lengths to supposedly protect our civil liberties, it seems to me clearly unconstitutional. And we’re still left with the apparent fact that our government has massive troves of data on American citizens that can be mined in the first place. Again I assert that the value of such data is so great that it will inevitably be abused. Furthermore, knowledge that we are being watched constantly will have a chilling effect on free society and culture. And we depart further from the republican ideal the less public our republic becomes.

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