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NSA overreach: When a system of checks and balances breaks down

Sam Sacks is a political commentator and journalist, the last five years spent covering politics in Washington, DC.

Published time: June 08, 2013 01:29
Reuters / Gary Cameron

We know of the NSA’s domestic telecom and internet surveillance programs today not because of the efforts of Congress and esteemed Senators like Ron Wyden (D-OR) and Mark Udall (D-CO), but instead thanks to brave whistleblowers.

This fact speaks not only to the critical role whistleblowers are playing and will continue to play in the struggle against an emerging, monstrous surveillance state, but it also speaks to the dereliction of duty of the legislative branch, entrusted with holding the power of the Executive in check, and utterly failing in this primary task over the last decade.

It began with the PATRIOT Act which greatly expanded the powers of the executive to conduct domestic surveillance. Specifically related to domestic spying, the PATRIOT Act’s section 215 is the linchpin for the modern surveillance state. How was the NSA able to use a FISA court to snoop on the calling data of millions of Verizon customers? Section 215 – also known as the business records section.

As Sen. Dianne Feinstein noted after news broke of the Verizon snoop, “This renewal is carried out by the FISA court under the business records section of the Patriot Act. Therefore it is lawful. It has been briefed to Congress."

The ACLU argues, “Section 215 of the Patriot Act allows the FBI to force anyone at all - including doctors, libraries, bookstores, universities, and Internet service providers - to turn over records on their clients or customers.” You can add telecom companies like Verizon to that list, too.

The only check on this is a secret FISA court, with secret rulings, and a gag on any warrants that come out of this court.

Rep. Jim Sensenbrenner (R-WI), the author of the original PATRIOT Act and section 215, reacted with outrage to the news of the NSA’s collection of Verizon users’ data. “How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?” he asked in a letter to Attorney General Eric Holder.

Sensenbrenner argued that he does not believe the NSA action “is consistent with the requirement of the Patriot Act.” If only he listened to the warnings from privacy experts back when he was drafting the legislation.

Despite privacy concerns routinely raised by certain lawmakers, section 215 has been renewed along with the larger PATRIOT Act which was extended another four years in 2011.

But in its mission to cede all oversight power to the Executive, the Legislative branch didn’t stop at the PATRIOT Act. With the Protect America Act of 2007 and later the FISA Amendments Act, Congress removed the need of executive intelligence agencies to even obtain a warrant from a FISA court. It codified electronic monitoring of communications of all Americans who may be communicating with foreign agents, as long as it was “reasonably believed” that the specific target of that surveillance was not inside the country. And to discourage telecom companies from not complying, they were granted full legal immunity to betray their customers’ privacy.  

In regards to the latest revelation about the massive internet snooping operation known as “PRISM,” the ACLUnotes that subsections of the Protect America Act of 2007, “create the enforcement mechanism, allowing the AG or DNI to direct a communications company to immediately allow access to its facilities.” The ACLU adds this provision is, “one of the most dangerous…It allows the government to directly tap into telecommunications facilities.”

AFP Photo / Files / Paul J. Richards


This appears to be exactly what the NSA was doing with PRISM.

So, it’s pretty clear: all this outrageous domestic surveillance coming out of the Executive that’s long been speculated and only recently confirmed, was made possible thanks to Congress. That explains why Congress has largely been unsurprised by these revelations.

Sen. Bernie Sanders (I-VT) admitted that lawmakers had a “general sense” of the scope of NSA spying, “but with no specificity.”

Going a step further, Sen. Saxby Chambliss (R-GA) admitted, “Everyone’s been aware of it for years, every member of the Senate.”

And Sen. Dianne Feinstein also said news of these surveillance programs doesn’t come as a surprise to her and her colleagues and they are regularly briefed on it.

The Senate knows because they wrote the laws giving the President the power to conduct this sort of surveillance.
The actions of both parties in Congress as well as both a Democrat and Republicans in the White House over the last decade proves that political change has done little to rein in the growth of surveillance. The pervasive effects of money in politics and the media’s obsession with fear-driven stories, means lawmakers who do want to reassert Congressional oversight into domestic surveillance will face consequences and charges of being “soft on national security.” Paralyzed by fear, the legislative branch has neutered itself.

So, now that Congress has abdicated from its responsibility to provide oversight and hold the Executive accountable for preserving first and fourth amendment constitutional rights, we must rely on our fellow citizens – on whistleblowers for the oversight. Luckily for all of us, they are up to the task.

The Washington Post reports that the individual who handed them information about PRISM had, “first-hand experience of these systems” and was in “horror at their capabilities.” The officer told the newspaper, “They quite literally can watch your ideas form as you type.”

Glenn Greenwald who broke the NSA/Verizon story with The Guardian, said he obtained the information from one of his readers who trusted Greenwald’s reporting on domestic surveillance and treatment of whistleblowers.

These new whistleblowers are the latest in a line of citizens – from Thomas Drake to John Kiriakou – who’ve seen first-hand what the United States government is up to, and believe that the only way to stop these abuses is to expose them.

And while there were fears that aggressive actions by the DOJ toward AP and Fox News reporters James Rosen may discourage whistleblowers and journalists in the future, the exact opposite has happened. DOJ and NSA actions have only emboldened truth-tellers.

The succession of bombshell leaks laying bare the NSA and DOJ’s surveillance of Americans can best be described as a “revolt” against the security state. These individuals realize that absent an aggressive legislative and judicial branch, they – and all of us, really – are the final check against misuse of power by our President and his intelligence agencies.

As we’ve seen over the last decade, it’s true that without oversight, the Executive branch can run amok. But, as we’ll learn in the coming years, this can only last for so long before people of conscience step up to expose it. Armed with the facts about what’s going on, “we the people” will take care of the rest.

The statue of Abraham Lincoln, the 16th US president is seen inside the Lincoln Memorial in Washington, DC (AFP Photo / Karen Bleier)


As Abraham Lincoln believed, “Give the people the facts and the Republic will be saved.”

Years from now, we may look at these two fateful days in June, when massive components of the security state were dragged into the light, as the beginning of a great unraveling – the beginning of the end for the post-9/11 security state apparatus.    

It’s too early to tell if these revelations will compel Congress – the most democratically responsive of the three branches of government – to find its oversight footing once again and serve as a needed check on overblown powers of the Executive. There have been a few hollow calls from Capitol Hill for investigations and hearings into the NSA since this news broke.
But if Congress chooses to lie down once again while the Executive runs roughshod over the Constitution, then it will be up to “we the people” to build the movements necessary to correct the balance of power in our government. And it will be whistleblowers marching as the vanguard of this movement.

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.