Surveillance

NSA Surveillance Programs Are a Cancer on the Constitution

Will Congress act decisively to end unconstitutional executive branch overreach?

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The month of June has proven to be a notable one for revelations about abuses of government power carried out under the cloak of secrecy. June 1971 brought us the Pentagon Papers case, followed two years later with the Watergate hearings into the break in at the Democratic National Committee headquarters. A generation later, another national security whistleblower—Edward Snowden—revealed in June 2013 a fresh series of government abuses of power in secret.

And now, with some of those abusive powers facing a June 1, 2015 expiration date, Congress faces another moment of truth: Will it act decisively to end unconstitutional executive branch overreach, as it did a generation ago?

One of the most haunting and compelling witnesses at those initial Watergate hearings was former White House Counsel John Dean. In his testimony on June 25, 1973, Dean recounted for the committee how he told President Nixon that the Watergate burglary and subsequent cover up were "a cancer on the Presidency" that threatened to destroy Nixon himself unless all involved came clean immediately. The months of public hearings that followed and the damning revelations about Nixon's role in the break in and cover up culminated in Congress moving to excise the cancer Dean described through the impeachment process, which led to Nixon's resignation. 

The documents smuggled out of the National Security Agency (NSA) by Snowden sparked the first real public debate about government surveillance powers employed in the post-9/11 era. But in contrast to Congress's aggressive and forceful reaction to the Watergate era revelations of executive branch criminality and overreach, the Congressional response to Snowden's revelations of government surveillance abuse has been dangerously anemic. And in the case of these surveillance abuses, we have a cancer not simply on one institution of government, but on the Constitution itself.

Compare the level of effort Congress expended investigating Watergate and the other surveillance-related scandals of the 1970s with that expended to date on Snowden's revelations. In the Watergate era, Congress set up entire special committees with literally dozens of staff to investigate not only the Nixon White House but the entire U.S. intelligence community, the latter through the select committee chaired by then-Senator Frank Church of Idaho (i.e., the Church Committee). Those investigations lasted years and included dozens of publicly televised hearings. 

When the House Judiciary Committee considered the USA Freedom Act in May 2015—one of the few bills introduced in response to Snowden's revelations—committee chairman Rep. Bob Goodlatte of Virginia claimed the committee had conducted "aggressive" oversight of the issue through a total of three hearings.

As ProPublica noted, Snowden exposed literally dozens of NSA programs and activities that have a direct impact on the constitutional rights of Americans living at home or abroad. The House Judiciary Committee's three hearings did not even scratch the surface of those programs. 

The Senate Judiciary Committee under then-chairman Patrick Leahy of Vermont conducted a worthwhile examination of government surveillance programs in March 2013. It stands out for its singular moment in which Senator Ron Wyden caught Director of National Intelligence James Clapper in a falsehood about the scope of government surveillance against Americans. Snowden's revelations helped highlight just how disingenuous Clapper and other U.S. intelligence community officials had been on the issue, not just with Congress but with the FISA court as well.

Yet none of those revelations moved the Senate to create a select committee to investigate the full scope of post-9/11 surveillance programs, and the Senate Intelligence Committee has been far more a defender of these programs than an overseer of them. The House Intelligence Committee's public record on this issue is also dismal, with only a single public hearing in the months after Snowden's revelations that discussed almost purely cosmetic changes to U.S. surveillance authorities.

Indeed, when reform-minded House members not on the House Intelligence Committee have attempted to get information on these programs, they have been blocked from doing so—including in periods leading up to PATRIOT Act reauthorization votes. House reformers have also been stymied in their efforts to rein in or even end dubious surveillance activities, largely through the efforts of the House GOP leadership to restrict the terms and scope of the surveillance reform debate.

The House has seen fit to create a select committee to investigate the death of U.S. Ambassador to Libya Chris Stevens—a singular, tragic event already investigated by the State Department and the House Armed Services Committee. However, it has refused to create such a select committee to investigate Snowden's revelations, despite their magnitude and direct impact on the rights of Americans and the threat NSA's actions pose for American technology companies. That's a far cry from how the Watergate and Church Committees went about their business.

In the introduction to the Watergate Committee's final report, the authors noted the critical role the committee's open hearings had played in educating the public about the issues at stake:

Perhaps proof of the impact of the committee's hearings is found in the unprecedented public response to the firing of Special Prosecutor Cox on October 20, 1973. On that weekend alone, a half million telegrams came into the Congress. Hundreds of thousands of telegrams flowed in during the following days. The overwhelming sentiment of these telegrams was in opposition to the President's actions. It is doubtful that public sentiment would have been so aroused by the President's action had the public not been sensitized to the issues involved through the committee's hearings.

The failure of existing committees to properly probe Snowden's revelations, the active efforts by previous House Intelligence Committee leadership to impede inquiries by individual House members, and the efforts of House and Senate leaders to truncate any meaningful debate over these surveillance powers—all of these actions make it appear that Congressional leaders are engaged in a process designed to conceal the U.S. intelligence community's domestic spying transgressions rather than educate the public on them and their implications for our democracy.

And following Senator Rand Paul's 11-hour filibuster against attempts to extend the PATRIOT Act for five more years, we have more evidence of abuse of PATRIOT Act powers.

On May 21, 2015, the day after Paul's filibuster, the Department of Justice finally released a partially declassified version of the Sec. 215 PATRIOT Act compliance report covering the period from 2007 to 2009. That report found that the Federal Bureau of Investigation (FBI) violated the PATRIOT Act Sec. 215's privacy safeguard requirements for seven years. It also found that the Sec. 215 authority was used aggressively by the FBI to acquire huge volumes of information on U.S. citizens not the subject of any authorized investigation: 

Section 215 authority is not limited to requesting information related to the known subjects of specific underlying investigations. The authority is also used in investigations of groups comprised of unknown members and to obtain information in bulk concerning persons who are not the subjects of or associated with any FBI investigation.

The government is vacuuming up the communications of you, your family, your neighbors, your coworkers. No probable cause and no connection to terrorists or foreign intelligence services required. And this is the surveillance dragnet law Congress is considering renewing.

As important as the debate over the Sec. 215 program is, it involves only one of many government surveillance programs that will continue after the current debate is over—and without Congress having taken the time to actually determine how many such programs even exist, much less whether they have violated Americans' rights or even been operationally effective. Meanwhile, the cancer on our Constitution grows.

Patrick G. Eddington is a policy analyst in Homeland Security and Civil Liberties at the Cato Institute, and an assistant professor in the Security Studies Program at Georgetown University. 

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  1. That report found that the Federal Bureau of Investigation (FBI) violated the PATRIOT Act Sec. 215’s privacy safeguard requirements for seven years.

    So, they broke the law and nothing else happened? I’m shocked!

      1. Gee, man.

    1. “Yeah, seven years. Coulda been over a decade but for those jerks at NSA and that whole ‘sharing’ fiasco…”

  2. What you puny mammals call a cancer we call entertainment.

  3. June 1971 brought us the Pentagon Papers case

    Oh those quaint, wild times, when the left gave a shit about government power.

    1. Only when a Republican is wielding it. That hasn’t changed in the least.

    2. Eh, they gave a shit about Republicans having government power. Would they have cared if LBJ had still been president?

      1. As a wide-eyed optimist, I’d like to think that back then they would have. Say what you will, but LBJ did not seek, nor did he accept the nomination for re-election.

        Perhaps a better question is would they have cared had it been Kennedy, a young, hip, better looking president that everyone pinned their hopes and dreams on?

        1. Eh, “[he did not] seek, nor [would he have] accept[ed] [his] party[‘s] nomination for president.”

      2. “hey hey LBJ how many kids did you kill today”

        LBJ did not have fans in the New Left. For fucks sake, the Chicago police riot happened at the chicago DEMOCRAT convention.

        stop with the mindless partisan bullshit. just, stop.

  4. The documents smuggled out of the National Security Agency (NSA) by Snowden sparked the first real public debate about government surveillance powers employed in the post-9/11 era. But in contrast to Congress’s aggressive and forceful reaction to the Watergate era revelations of executive branch criminality and overreach, the Congressional response to Snowden’s revelations of government surveillance abuse has been dangerously anemic.

    As Louis CK said in a standup routine… “the President resigned. I watched the president quit his job and fly away in a helicopter!”

    Yep, for those of us who are (barely) old enough to remember that, all I can say is… different times.

    1. “Computers may be twice as fast as they were in 1974, but your average voter is as drunk and stupid as ever.”

    2. Now I wasn’t alive then, so could you please tell me how many years did Nixon spend in prison for his crimes?

      1. I’m trying to come up with a snappy retort to this, but the words aren’t coalescing.

        I’ve got a meta-concept rattling around in my head that covers ‘zero years’ compared to the number of years that Hillary has spent in prison, contrasted with the consequences that Nixon felt vs. the meteoric rise to super-stardom that Hillary et. al. have enjoyed.

        1. I get your point Paul, I’m just pissy that no president has done hard jail time for their crimes.

          1. I read something recently (no idea who or where but not at Reason, I think) where the author specifically blamed Ford for the rising abuse of executive power. By pardoning Nixon, he sent the message that no matter what the abuse, there would be no consequences beyond resignation or impeachment (and even that would be rare).

            I will note it is a fine line: you don’t want administrations charging their predecessors over policy disputes. Or see what happened in TX last year.

            1. That is what a trial is for. If you want some sort of grand jury to throw out weak cases that is fine, but until there are real consequences for ignoring the constitution, it will be ignored.

            2. There are a lot of Liberal Intellectual Radical Provressives who have a powerful need to keep blaming Nixon for anything and everything.

              Joe Queenan remarked that a lot of what is wring with the Baby Boom (Boomer here, BTW) is summed up by the way we insisted our parents acknowledge Nixon as Beelzebub whil hotly denying that Carter was Bozo.

      2. He would have. Being pardoned is different than simply not prosecuting.

      3. Exactly as long as LBJ, JFK, or for that matter a team from(as I recall) NBC, did for the same kind of political shenenigans.

        In fact, a few of the Nixon operatives involved, DID go to jail.

  5. However, it has refused to create such a select committee to investigate Snowden’s revelations…

    Uh, how can such an investigation be used against only one party?

  6. I blame the media which has turned everyting into a politics-as-sports spectacle.

    Constitutional violations, law breaking etc– and getting away with them *cough*Hillary*cough*– is now seen as clever brinksmanship. This “what will she do next to fend of these allegations” kind of reporting is how we get this.

    There was a time *said in echoey voice* that fundamental violations of Constitutional principles were seen as very serious. Now it’s like stock car racing: What can you get away with?

    1. Well, yeah. Only crazies care about the Constitution. It’s like really old and stuff. It doesn’t apply to modern society.

      1. 100 years old I recall.

        1. Two twenty, two twenty one, whatever it takes…

  7. One of the most haunting and compelling witnesses at those initial Watergate hearings was former White House Counsel John Dean.

    OK, but it was Special Prosecutor Archibald Cox who brought the house of cards down. Cox was appointed to the task by Nixon. Can you even imagine such transparency happening now? The Watergate scandal is the opposite of what has been embedded in our collective conscience. This is a John topic. Where is John?

      1. You know, I was thinking this the other day. He seems to have disappeared after the Tulpa/Bo expose over the weekend.

      2. I have little patience for drama. No, John is a DC lawyer (he was outed by Mary). He is married but has no kids yet. He likes women with a bit of meat their bones. Tulpa is an academic from who knows where. Not the same person.

        1. He was outed as a lawyer? I thought most people here are pretty open with their profession.

          1. I am a control systems engineer. Unlicensed! I don’t think I have ever said that explicitly. It’s awfully geeky. I’m here to pick up chicks so I’d rather be a lawyer.

            1. If you want to pick up chicks I can give you the link to Jezebel. Pro-tip: be a self deprecating beta male. 60% of the time, it works every time.

              1. I’m kidding, It’s much worse. My wife is an electrical engineer. Just imagine the dinner table conversations we have.

        2. MF, turn sarcasm detector ON/OFF switch from the O-F-F to the O-N position.

      3. John was Tulpa.

        Nooooo.

        1. Right?!? I use to talk to John like he was people!

    1. Did the self-loathing professor name you after his favorite prophet?

  8. I don’t think it’s a question of whether or not Congress will end the abuses, it’s a question of whether or not they can. I think Clapper et al have made it clear that they will twist the law as far as they need to in order to continue doing what they’re doing and if the law doesn’t twist that far they’ll just ignore the law. They are doing God’s Holy Work here and anybody who opposes them (including Congress) is fighting on behalf of the terrorists, and surely you can’t expect the NSA to stop fighting the good fight just because their enemies have told them to stop.

  9. If NSA spying is like prostate cancer on the Constitution, then the Drug War is like full blown pancreatic cancer.

  10. I’m not entirely convinced that Congress or the President has any real control over the NSA, FBI, DEA, etc.

    1. Maybe the pols are afraid to stand up to them because they know who’s really in charge?

  11. Know what else is a cancer on the constitution? Voting the same assholes back into office and then wondering why things never change. If Congress won’t adopt term limits, then enforce them at the ballot box. Otherwise, you’re just yelling in an empty forest somewhere for all the difference it’ll make. Hell, write in Elmer Fudd if you don’t like the challengers. If Elmer gets enough votes, we can leave the seat empty and improve things by reducing the size of government by at least one…

  12. Jail the parents who pay the phone bills. Aiding and abetting. Criminal negligence. Pimping. Whatever.

  13. ” Voting the same assholes back into office and then wondering why things never change.”
    It will not help to vote out the Democrats because they are the Republicans and vice versa. And the one-party-pretending-to-be-2-parties has an endless supply of assholes. The new boss asshole will be the same asshole as the old boss asshole.

    1. I’m willing to try the asshole roulette wheel and see what happens, I already know what the same old assholes do. 🙂

  14. Omfg!!! The Constitution is old, and you have to give your liberty up for security so we can feel better about ourselves.

    Look, the gov’t has supercomputers that protect things like IRS documents, Veterans information and collects data on everyone so they can catch criminals.

    Then there is all this crap about Hilary’s emails? Why does she have to answer to you or anybody!?? It’s not like she’s going to jail or anything, so she’ll fit right in at the whitehouse. I mean, why do you hate social progress? Sheesh!

  15. There are too many agencies/laws/etc that are un Constitutional from social security, the war on drugs, gun control, centralized government spying, obamacare, departments of this and that doing shit to a once free citizen.

    I call for a Mass Impeachment of the DC Elite – their crimes against our natural rights can no longer be ignored.

    1. And with this new government that will limit itself cause it says so on this paper………………right!!!???

  16. This is when the Millennials should be screaming for everything their worth. They spend
    their entire life on their devices but you haven’t heard a peep out of them on this issue. Someone needs to tell them it is next to impossible to take back what you have given up so freely.

    1. im a millenial. im vocal. go fuck yourself: my generation isnt responsible for the surveillance state, the boomers are. they can take credit for bankrupting us through SS, too. So stop pissing on the kids. you might find sometime soon we stop paying your wrinkly-ass way.

  17. Terrorism is a threat but not so much it justifies using a single warrant to collect information of thousands of people. In addition, the FISA courts are a single greatest threat to our freedom because they are secret and everything that happens is contrary to our basic concept of law. The Patriot act like many laws sounds good in theory but in practice is 1000 times more dangerous than the problem it was written to solve. Franklin said it best ” People who sacrifice liberty for safety deserve neither”…

  18. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.

    This is wha- I do…… ?????? http://www.www.netjob80.com

  19. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ?????? http://www.www.netjob80.com

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