Privacy SOS

On proof, lies and expecting the worst from the surveillance state

Please note that by playing this clip YouTube and Google will place a long term cookie on your computer. Also, NSA will probably mark it in your file.

Today’s New York Times story about the NSA searching all American international communications is shocking for the same reason that Edward Snowden’s leaks are shocking: it is confirmation of our worst fears. The revelations, to those of us who have been paying close attention, are not shocking in the sense that they reveal government conduct we thought was beyond the pale. What’s shocking is that we can now prove definitively that what we’ve feared for years has been happening under our noses — and behind closed doors.

As you’ll see, proof matters. In the absence of indisputable, concrete evidence to prove what we were saying was true, even though the ACLU and other critics repeatedly warned that the FISA Amendments Act would enable mass surveillance of American communications, mendacious government spokespeople have been able to assuage concerns enough to get their unconstitutional surveillance laws implemented, again and again.

Proof matters, a lot.

Jameel Jaffer, who has repeatedly sued the federal government over its surveillance programs, said the following about today’s Charlie Savage piece:

The program described by the New York Times involves a breathtaking invasion of millions of people's privacy.  The NSA has cast a massive dragnet over Americans' international communications, collecting and monitoring all of them, and retaining some untold number of them in government databases.  This is precisely the kind of generalized spying that the Fourth Amendment was intended to prohibit.

The government's scrutiny of virtually every international email sent by Americans will have extraordinary consequences for free expression. Americans will inevitably hesitate to discuss controversial topics, visit politically sensitive websites, or interact with foreigners with dissenting views. By injecting the NSA into virtually every cross-border interaction, the U.S. government will forever alter what has always been an open exchange of ideas.

This is terrifying and awful. How did we get here? A little background:

As many people know, the Bush administration authorized warrantless wiretapping of Americans’ international communications after (or, some say, before) 9/11. That program was a Classified State Secret until the New York Times finally published the story in 2005, after sitting on it for a year at the request of the Bush White House. (Yes, the brave Grey Lady sat on one of the decade’s biggest stories for 13 months, until after Bush won reelection in 2004.)

The warrantless wiretapping exposé ignited a scandal across the political spectrum. Libertarians like Bob Barr were outraged. Conservative firebrand William Safire, himself a victim of unchecked federal surveillance, announced that he was "with the critics." And progressives like Russ Feingold excoriated the administration for its lawlessness. (You can see Feingold spelling out exactly what the bill that enshrined Bush's program into law allows, and what we now know the NSA does under its authority, in the video embedded above.)

The ACLU, meanwhile, did what the ACLU always does: it stood up for the Bill of Rights and Americans’ privacy interests in the face of extremely dishonest government propaganda.

We were told to be afraid of terrorism. We were told the program wouldn’t ‘target’ Americans. And yes, contradictorily, we were told we had to give up a little liberty in exchange for Not Being Murdered By Al Qaeda. Nonetheless, the ACLU — whose lawyers and lobbyists actually read the legislation and therefore understood how dangerous it was — pushed back, made cogent rebuttals, lobbied and sued.

Unfortunately, lots of other powerful forces agreed with the administration. 

Among them was congress. To their great shame, our lawmakers agreed (twice) that The Terrorist Threat was so scary and devastating that it required throwing out huge portions of the Fourth Amendment, and in 2008 they wrote Bush’s warrantless wiretapping program into federal law. The FISA Amendments Act was signed on July 10, 2008; on that very day, my hard working ACLU colleagues filed a federal lawsuit challenging its constitutionality. That lawsuit, Amnesty v. Clapper, was finally settled back in February of this year, when the Supreme Court agreed with the Department of Justice and tossed it out of court. 

The problem was maddeningly Kafkaesque. The government told us we didn’t even have the right to challenge the lawsuit — ‘standing,’ in legalese — because (get this) we couldn’t prove our clients had been spied on. Of course, the government wouldn’t tell us if it had spied on our clients — among them human rights attorneys and journalists. That was a state secret. Naturally.

We needed proof. As far as congress and the courts were concerned, it didn’t matter that the ACLU had read the legislation and could discern from it that:

"The FISA Amendments Act gives the government nearly unfettered access to Americans’ international communications." 

Or that:

"The FISA Amendments Act allows the government to engage in mass acquisition of U.S. citizens’ and residents’ international communications with virtually no restrictions."

It didn’t matter that, simply by virtue of reading the actual bill, the ACLU knew the law would allow:

  • The government to "intercept U.S. residents’ international telephone and email communications without having to even name the people or groups it is monitoring or show its targets are suspected of wrongdoing or connected to terrorism" and;
  • The government to "intercept U.S. communications without having to identify the facilities, phone lines, email addresses, or locations to be monitored. Theoretically, the government could use the new law to collect all phone calls between the U.S. and London, simply by saying to the FISA court that it was targeting someone abroad and that a significant purpose of its new surveillance program is to collect foreign intelligence information."

See the word ‘theoretically’ up there? The ACLU was jumping up and down warning about this terrible law, but couldn’t point to indisputable evidence to demonstrate that what it was saying was true, and what the government was saying was false. 

Notably, when Charlie Savage asked the NSA for comment on the story he published today, the spokeswoman told him that the program he was describing was "lawful." And as far as the statute is concerned, she's most likely right. Therein lies the rub. 

I don’t mean to give the impression that the ACLU was the only organization or entity raising the red flag about FAA back in 2008; that’s far from the case. People like Julian Sanchez at the Cato Institute have been screaming into the void for years. Some lawmakers even echoed our concerns. My point here isn't to say "The ACLU was right." Well, that's not the only point I'm making.

I'm also trying to illustrate a truth about our political system by pointing out that the smart attorneys and lobbyists who work for the ACLU had their fingers exactly on the nose of the primary problems with the law (there are others, spelled out here) before it was passed, but that it didn't matter. Even though plenty of very smart people were raising the alarm (and were exactly right), lawmakers chose to believe the intelligence establishment over and above the actual words on the page.

Only now are a good number of them feeling buyer’s remorse. Only now, that is, after we have proof that our secretive spies are using every bit of power congress gave them — unwittingly or not.

That’s why proof matters, in and outside of court. Thanks to Edward Snowden, no longer can the government claim that it does not use Section 215 of the USA Patriot Act to do bulk records collection domestically. Thanks to today's NYT piece, no longer can it credibly claim that it doesn’t ‘target’ the communications of Americans for surveillance. The government can play its maddening word games all it likes, but it will end up looking very dishonest indeed when proof of its actions comes to light.

The lesson here is clear, and it is simple. If the letter of the law gives our spooks a power, they will use it to the maximum extent possible — if not go beyond what it allows. Unfortunately, when it comes to the secretive actions of our intelligence industrial complex, you should expect the worst; history shows that you’ll probably be right.

© 2021 ACLU of Massachusetts.