William Fisher

By William Fisher

Shortly after the terrorist attacks of September 11, 2001, President George W. Bush authorized the NSA to secretly wiretap Americans' international communications without any warrant, suspicion of wrongdoing or court oversight at all.

The Bush administration managed to keep this secret for years, until July 2008 when – with a perfectly straight face and on the heels of some noisy media attention – the president signed the FISA amendments into law. An hour later, the American Civil Liberties Union went to court on behalf of a large number of human rights groups, journalists and attorneys seeking to have the Supreme Court declare the law unconstitutional.

According to testimony from two veteran NSA operatives, Bill Binney and J. Kirk Wiebe, they knew – "together with large numbers of our colleagues, we objected to the abandonment of constitutional protections." In an article in POLITICO, they say they were told to "mind our own business."

"But this is exactly the kind of intrusion into our private lives that the Founding Fathers wanted to prevent. We resigned in protest."

But their first day in court was a bust. The court ruled that the two whistleblowers had no standing to sue since they couldn't prove they were 'impacted' – subject to surveillance.

But, they ask, "how can we prove such a thing when the information about who the government monitors is secret and the process of surveillance is designed to be undetectable?"

So they'll try again later this month, when the Supreme Court will hear oral arguments in the case. Its decision, say the whistleblowers, could define the government's ability to monitor innocent Americans' international communications without a warrant.

The lawsuit, Amnesty International v. Clapper, argues that the Constitution bars the National Security Agency from listening to or reading Americans' international conversations and emails without court oversight, even if Congress blesses the NSA's actions.

The National Security Agency (NSA) is a cryptologic intelligence agency of the United States Department of Defense (DOD) responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S. government communications and information systems which involves information security and cryptanalysis/cryptography.

The NSA was created to listen to and analyze foreign communications to protect the nation from threats outside our borders. Today, it is bigger than the CIA and FBI combined.

Binney and Wiebe write, "Our touchstone was the Fourth Amendment's protections against unreasonable searches and seizures and its guarantee that warrants could be issued only with probable cause and against specific targets. Whenever we suspected that an American abroad or someone inside the United States might be involved in terrorism or espionage, we carefully gathered the evidence and presented it to the Foreign Intelligence Surveillance Court, which meets in secret to protect classified information. Only if that court gave us permission would we monitor an American's communications."

Then, they recount, came the horrific crimes of Sept. 11, 2001, and "we lost our moorings." Shortly after that terrible day, "President George W. Bush authorized the NSA to wiretap Americans' international communications without any warrant, suspicion of wrongdoing or court oversight at all."

Binney and Wiebe contend that their argument is that "we have standing to challenge the law's constitutionality because as human rights advocates, journalists and attorneys, we rely on confidentiality in our international communications with victims of human rights abuses, whistle-blowers and government officials–and our work is severely impacted by the law."

And that, they say, gets at the heart of the unconstitutionality of the FISA Amendments Act. The law, they write:

• Violates the First (freedom of speech, freedom of the press) and Fourth (against unreasonable searches and seizures) Amendments to the U.S. Constitution.

• Invests the National Security Agency with sweeping power to monitor Americans' international phone calls and emails without a probable cause or warrant requirement, so its effect is to allow the NSA to conduct dragnet surveillance, not just surveillance directed at suspected terrorists and criminals.

• Does not provide for meaningful judicial review or congressional or public oversight.

But Binney and Wiebe caution that the Supreme Court won't be considering any of these claims when it hears oral arguments in their case. The Court will only be pondering whether the plaintiffs have the right to bring a case at all.

The Foreign Intelligence Surveillance Act (FISA), enacted by Congress after the abuses of the 1960s and 70s, regulates the government's conduct of intelligence surveillance inside the United States. It generally requires the government to seek warrants before monitoring Americans' communications. In 2001, however, President Bush authorized the National Security Agency to launch a warrantless wiretapping program, and in 2008 Congress ratified and expanded that program, giving the NSA almost unchecked power to monitor Americans' international phone calls and emails.

The plaintiffs in Amnesty v. Clapper include human rights, media, and legal organizations. The government claims that the group shouldn't be able to sue without first showing that their communications have been or will be monitored under the statute – but in a Kafkaesque move, the government refuses to reveal who has and hasn't been spied on.

Binney and Wiebe conclude by explaining why the courts' ability to review the law is so important.

"The framers established our independent courts to be the final bulwark of liberty. They recognized that the political branches – Congress and the president – couldn't be relied on alone to protect our rights, particularly in times of crisis. That is as true today as it has ever been. Threats to national security cannot be an excuse to throw out the very system that has been our nation's strength for over 200 years. We cannot allow the rhetoric of fear to justify"

"Dedication to Open Government" is another principal the NSA says it is committed to. Its web site says, "It is our goal to make NSA/CSS records available to the public in a timely manner and in accordance with applicable laws and policies."

It adds, "These are our commitments to you, our fellow citizens:

• We will act with integrity to advance the rights, goals, and values of the Nation.
• We will adhere to the spirit and the letter of the Constitution and the laws and regulations of the United States.
• We will combat terrorism around the globe – when necessary, putting our lives on the line to preserve the Nation.
• We will provide our policymakers, negotiators, ambassadors, law enforcement community, and military the vital intelligence they need to protect and defend the Nation.
• We will defend the national security networks vital to our Nation.
• We will be a trusted steward of public resources and place prudent judgment over expediency.
• We will continually strive for transparency in all our review, monitoring, and decision-making processes.
• We will honor Open Government and Transparency mandates by making timely and accurate information available to the public, subject to valid privacy, confidentiality, Constitution of the United States against all enemies, foreign and domestic."

Meanwhile, Kafka is having one huge belly-laugh after another.

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