Vol. 77/No. 2      January 21, 2013

BY JOHN STUDER
In a bipartisan vote Dec. 28, the U.S. Senate overwhelmingly passed a bill extending for five years the government’s power to intercept electronic communications on the grounds of searching for evidence of terrorism.

The House had passed the same bill in September. President Barack Obama signed it into law Dec. 30.

The program, carried out under the Foreign Intelligence Surveillance Act of 1978, allows the National Security Agency to gather millions of phone calls and Internet communications from companies like AT&T, Verizon and Sprint and “data mine” them.

This operation began in secret under the George W. Bush administration after Sept. 11, 2001. It was first revealed by the New York Times in 2005 and then made legal in 2008 by a bipartisan Congress.

The program is one of a growing list of measures that blatantly disregard protections under the Fourth Amendment to the U.S. Constitution, which guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The only exception, the Bill of Rights states, should be under court warrant “supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Two weeks before passage of the most recent extension of the NSA wiretapping, government lawyers told U.S. District Judge Jeffrey White to throw out a five-year challenge to the program because allowing the case to be heard in court would reveal “state secrets.”

Secret wiretap court set up in 1978

Under FISA, the government set up secret courts empowered to approve wiretaps and search warrants requested by spy agencies. In its first 26 years, FISA courts turned down only five of the 19,000 requests from federal cops.

It was the FISA courts, for example, that rubber-stamped the searches and wiretaps of the Cuban Five that were used to frame them up on conspiracy charges in 2001. (See article page 4.)

After Sept. 11, the Bush administration, claiming FISA’s warrant requirements were too restrictive, secretly instructed the NSA to conduct warrantless wiretaps of people it thought might have links to terrorism. The agency received support in this effort from most of the big communications companies.

After parts of the program were revealed by the Times, Congress overwhelmingly passed a bill in 2008 legalizing and incorporating it into FISA. The legislation granted immunity from prosecution for constitutional rights violations to AT&T, Verizon and the other companies.

All this was extended in the bill signed by Obama Dec. 30.

In the course of the congressional debate, there were some challenges to the program. The strongest came from Rand Paul, Republican senator from Kentucky, in a bill he submitted co-sponsored by Republican Sen. Mike Lee from Utah.

“Our independence and the Fourth Amendment go hand in hand,” Paul told his Senate brethren.

Rand’s proposed bill would have restricted the government from seizing any communications without permission of its author, or that under the strict requirement of the Fourth Amendment a specific court-ordered warrant had be issued, based on probable cause. The proposal was rejected with only a dozen yes votes.

Even calls for a little more public information about the program were rejected out of hand.

Sen. Jeff Merkley, Democrat from Oregon, asked that the Senate be given some information about what “the important rulings and precedents of the secret court might be, with the understanding that nothing endangering national security would be declassified,” the American Conservative reported.

The request was voted down.

“Who needs to know these things anyway?” the American Conservative commented sarcastically. “That’s why the government hires national-security professionals, who will always act in our interests.”

The class action lawsuit, Carolyn Jewel et al. vs. National Security Agency et al., was filed on behalf of subscribers to AT&T’s digital network by the Electronic Frontier Foundation—founded to defend free speech and privacy “in the networked world”—against the NSA, then President George W. Bush, Vice President Richard Cheney, and other Bush administration officials. The Bush and Obama administrations have called for the lawsuit to be barred for national security reasons and on grounds of presidential privilege.

Part of the foundation’s lawsuit is a declaration by Mark Klein, a 22-year technician for AT&T, detailing how the company and the NSA built a special network switching room—the “SG3 Secure Room”—in a company office in San Francisco to route electronic communications to the spy agency.

The suit is one of a number of legal challenges—some already dismissed and others still in the courts.

A previous legal challenge brought by the American Civil Liberties Union on behalf of Amnesty International and others was thrown out of court when the government argued that since the program is secret, those bringing the suit couldn’t prove they were being wiretapped. As they say in legalese, they didn’t have “standing” to be in court.

That decision was overturned by the Second District Court of Appeals in 2011 and is being reviewed by the U.S. Supreme Court, which heard oral arguments on Oct. 29.
 
 
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