The Baltimore Pledge of
Resistance will participate in Keep Space for Peace Week by going to the
National Security Agency, Fort Meade, Maryland at noon on October 14. Our main
message will be to call for the immediate release of Reality Winner, the NSA whistleblower.
Those interested in joining the action should contact Max at 410-323-1607 or
mobuszewski2001 at Comcast dot net.
National
Security Agencies Are Evading Congressional Oversight
Thursday, October 05, 2017By Shahid Buttar, Truthout |
News Analysis
(Photo: Jonathan McIntosh;
Edited: LW / TO)
Last
week, federal officials from several spy agencies engaged in a full court press in
Washington, spinning facts before
media outlets, flooding Capitol Hill with lobbyists and bringing lawmakers to
the National Security Agency's (NSA) Ft. Meade headquarters to feed them
selective information about their unconstitutional mass
surveillance activities. Predictably omitted from these conversations are the
many Americans from across the political spectrum who have raised concerns,
ranging from constitutional and commercial to
security-related, that have rightfully dogged federal mass surveillance efforts
since their revelations -- not
in official proceedings, but rather by whistleblowers -- in 2005 and 2013.
Rather than embrace bipartisan calls for long overdue and constitutionally
necessary limits, executive officials have instead chosen to shoot the
proverbial messengers, vilifying whistleblowers and
building new programs to prevent others from ever coming forward.
Last week's meetings included claims that particular examples of mass
surveillance proved useful, ignoring its repeated failures. While the
appearance of security may be comforting to some, NSA veterans have
identified discarded programs that,
relative to their replacements, reportedly did a better job of protecting
national security while also protecting the privacy of Americans by encrypting
data collected within the US and requiring a warrant for investigators to
access it.
Meanwhile, too many members of Congress from all parties remain
excessively deferential to the
intelligence community, despite Congress mustering a bipartisan majority to
enact preliminary reforms in
2013, and the House approving even more sweeping changes in
their wake. Even though the scheduled expiration of a key statute --
Section 702 of the Foreign Intelligence Surveillance Act (FISA) -- looms mere
months away, congressional committees have yet to hold hearings to get beyond
executive talking points and begin actively investigating the
underlying facts.
Originally enacted in the 1970s to restrain domestic surveillance, the history of the FISA
statute is revealing in itself. Its genesis was a wide-ranging congressional investigation that
dramatically uncovered a series of previously secret
programs that, instead of promoting security, were carefully tailored to
undermine constitutionally protected dissent. Alarmed at wide-ranging
executive abuses behind a
wall of secrecy, Congress enacted reforms that included the creation of a secret
court, and insisted on regulations by the Department of Justice
to further curtail the FBI's 40-year assault on democracy in the form of COINTELPRO: its infamous Counterintelligence
Programs.
Since then, Justice Department regulations have been watered down periodically,
while FISA was ultimately flipped on its head. Most recently, FISA was amended
in 2009 to legalize a series of mass surveillance programs begun under the Bush administration in
direct violation of the governing statue at the time, as well as constitutional
limits. The continuation of
these programs under the Obama administration granted them the appearance
of bipartisan legitimacy
despite their clear and continuing unconstitutionality.
In the past,
concerns about mass surveillance have extended across the political spectrum and around the world. Under the Trump
administration, those concerns have grown increasingly pressing, given the
president's seeming disregard for
constitutional limits on executive power, and potential willingness to politicize surveillance
to serve his own political ends.
Given those concerns, and the crucial congressional
role of checking and balancing the federal executive branch, Congress should
aggressively exercise its oversight responsibilities. But there are structural barriers to
doing so. Many members of Congress on key congressional committees, for
instance, lack qualified staff wielding adequate security clearance to rebut
talking points peddled by self-serving executive officials.
Beyond structural impediments, many members of Congress have been willing to
settle for mere assurances from executive officials, rather than insisting upon
reviewing evidence proving that mass surveillance effectively protects
security, and that the government's systems adequately protect the rights of
innocent Americans. Representatives poised to do more include Democrats and
Republicans whose constituents may enjoy opportunities to
politically force their hands.
Only by investigating mass surveillance operations can Congress uncover the
underlying facts. Such an investigation would be crucial in helping establish
the need for long overdue constitutional limits.
In
particular, because agencies including the NSA and FBI have relied on legal loopholes and secret interpretations for
which they have grown notorious, one crucial
requirement is for backdoor searches of Americans to be first justified by a
judicial warrant. While that process does not impose a significant operational
burden on agencies, it does prevent the kinds of documented abuses that agency
employees and contractors have already committed, which include stalking former
lovers using the government's powerful spying tools.
Congress should also ensure that intelligence information is used exclusively
to protect national security, instead of polluting the
criminal legal system with raw intelligence that inherently fails to meet the
standards required for evidence to be admitted in court. Congress should not
allow powerful military-grade surveillance programs to be used for purposes
like routine criminal
law enforcement or tracking down undocumented
immigrants.
Congressional oversight of the intelligence agencies should also address issues
beyond data collection. In the past, intelligence agencies have undermined
attempts by Americans to ensure their own privacy, including by intercepting router
shipments and planting covert firmware. Accordingly, Congress must adopt
measures to protect encryption and
encryption standards from
erosion by national security agencies. A restriction along these lines would
also serve business interests, which have vocally decried losses amounting to
billions of dollars driven by clients making the rational decision to
buy encryption devices from other sources.
Finally,
Congress must restore the opportunity for a robust public debate about these
issues. That requires reforming the state secrets privilege and fixing
the broken classification system
described as "dysfunctional" by the former official who administered
it. All too often, over-classification keeps policymakers and the public in the
dark, and enables a bipartisan war on whistleblowers from whom congressional
committees have learned the truth.
Regardless of what Congress does this fall, advocates will continue to challenge the
constitutionality of mass surveillance in the courts, where we have sought for
over a decade to invoke the rule of law to restore limits on executive
authority. Congress is currently considering surveillance policy, and we urge
Congress to legislate limits to safeguard constitutional rights. If enough
policymakers are pressed by informed and alarmed constituents, Congress will hopefully
finish the job it already started.
Copyright, Truthout. May not be
reprinted without permission.
Shahid
Buttar is a constitutional lawyer, DJ, MC, electronic musician, director of grassroots
advocacy at the Electronic Frontier Foundation and
former executive director of the Bill of Rights Defense Committee.
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to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD
21218. Ph: 410-323-1607; Email: mobuszewski2001 [at] comcast.net. Go to http://baltimorenonviolencecenter.blogspot.com/
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has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
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