Published on TheHill.com on June 25, 2013
The only way to grasp the impact of the NSA surveillance program is to see it as a wholesale repeal of the Fourth Amendment. The detailed rules National Security Agency analysts follow show the breathtaking reach of its potential for eavesdropping without any of the protections of our Constitution.
According to FISA court rulings released by the NSA pursuant to a Freedom of Information Act request, low-level agency analysts are allowed to assume that if they cannot identify the location of any participant in a phone call or an email, he or she is on foreign soil, which would allow them to listen in on the call or read the email. And, in the event that they “inadvertently” listen in on a conversation between Americans on American soil, they can report any criminal activity or plans to harm a person or property that they hear or read about in the call or the email.
So, if the NSA intercepts a phone call or email between Joe and Harry, both of whom are in the United States, but the analyst could not tell where Harry is, he can listen in on the call. Once he discovers that Harry and Joe are both, in fact, on U.S. soil, he has to stop listening. But anything he had already “inadvertently” heard is actionable. In other words, he’s perfectly free to report the “criminal” activity to his superiors — to the FBI, the CIA, the EPA, the ICE, the IRS or any other agency that seems relevant to him.
Bear in mind, we are speaking here of low-level analysts eavesdropping on tens of thousands of phone calls. The only check on their activity is an “audit” of a random sample of the calls and emails they intercept by their supervisors.
So how does this NSA jurisdiction amount to anything other than a repeal of the Fourth Amendment? This “inadvertent” wiretapping needs no warrant, no notification of any court or even of any superior or supervisory official. And the “crimes” uncovered by it need not relate to national security or terrorism. If the NSA analyst uncovers a plot to rob a bank, he can report it as he wishes.
Good-bye warrants. Good-bye Fourth Amendment.
President Obama and the NSA’s citation of the 50 terrorist acts they say their surveillance has averted is irrelevant at best and disingenuous at worst. All of the examples cited were under Section 702, which permits the NSA to listen in on calls between an American and a person who is not on American soil. Nobody objects to that. It is, indeed, a useful tool in fighting terror, and everyone who communicates with someone in another country just has to suck it up and realize that their communication could be intercepted.
But not one of the 50 shades of terror prevented by NSA intervention stemmed from Section 2015 wiretaps of conversations among Americans on U.S. soil. The very paucity of this information indicates how unnecessarily intrusive NSA domestic surveillance is.
But we dare not eliminate it in this era of terrorism and covert operations that target our lives and property.
So, the clear need here is for an Internal Affairs unit within the NSA, fully equipped with subpoena power, the ability to empanel grand juries and bring indictments and endowed with a large staff. The head of the unit should be designated by the Intelligence Committee chairmen and ranking members in each chamber so they are independent of the executive branch.
The powers that the NSA confers on average analysts — Edward Snowden was not even a college graduate — are extraordinary and only justifiable in an environment that is rigorously policed by an independent agency within the NSA. It is only the threat of harsh disciplinary action, including jail time, that gives us any assurance that analysts are not abusing their virtually limitless powers.
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