The recent headline-making stories of our government’s out-of-control surveillance activities have frequently focused on the invasion of privacy that the National Security Agency and the Department of Justice’s programs represent. While those invasions of privacy have been massive—and may be even worse than thus far revealed—that focus overlooks a more fundamental truth. The executive branch now views every American as a potential suspect first, and as a citizen second.
For most of our history prior to the 9/11 attacks, a fundamental American principle was that those who search, seize, intercept and detain should not be allowed to decide who are the bad guys because of political differences, vague suspicions, or incidental associations. The problem with widespread, intrusive surveillance is that the government treats ordinary Americans with suspicion, and it continues to massage the data until it is satisfied that there are no incriminating associations. What has become of the principal of presumption of innocence?
When our government suspects its own citizens we have lost the founding principles of liberty and equality.
One of the characteristics of oppressive governments that we detest is that they intrude into peoples’ lives, spying on their own people. The chilling intrusion into people's lives, effects, and relationships must be controlled even if government officers think that the intrusion is necessary to preserve safety, security and order. Officers who in their zeal let their suspicious hunches or biases run unrestrained can be as dangerous as politically motivated enforcers. Indeed, civil protections are critical especially if the government says they are trying to protect safety, security and order.
Before the 9/11 attacks, it was understood in our society that courts must establish that there is a probable cause to believe an American is a threat to society. But in the years following those attacks Congress passed and repeatedly renewed (over my objections) legislation that effectively made the attorney general and the director of national intelligence or bureaucrats under them, the arbiters of deciding which Americans could be surveilled, where they could be surveilled and for how long.
Of course we need good intelligence to protect our nation but legislation should not be passed in response to fear-mongering. Congress gave into fear mongering by repeatedly renewing the PATRIOT Act and then in 2012 renewing the Foreign Intelligence Surveillance Amendments Act. Congress renewed these laws despite reports from the Department of Justice’s inspector general of serious abuses of civil liberties through the department's unchecked use of national security letters, among other things.
And as we now know, one FISA court judge was sufficiently concerned by what he saw in 2005 that he resigned from the FISA court. Although he did so quietly and kept quiet until these latest revelations of metadata mining appeared, he at least has confirmed what many have long suspected: the excessive secrecy surrounding the FISA court has produced radical surveillance excesses and a body of secret law that until now appeared unchallengeable.
That judge, James Robertson, told the Privacy and Civil Liberties Oversight Board on July 9, 2013 that “What FISA does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but the 2008 amendment has turned the FISA court into [an] administrative agency making rules for others to follow. It is not the bailiwick of judges to make policy.” Changes in surveillance law and practice since 9/11 have not only turned the FISA court into a rule-making body, but worse, those “rules” have been made in secret, in the complete absence of a traditional adversarial court process.
Two presidents, successive Congresses and the federal courts have all contributed to this secret rewriting of the Fourth Amendment. And contrary to what many in Congress and the press have suggested, this debate is not a choice between safety and civil liberties. The Fourth Amendment makes us safer by making the enforcers prove that they know what they are doing, rather than chasing unsubstantiated suspicions through dragnet surveillance.
Multiple whistleblowers—from the Department of Justice, the National Security Agency, and from AT&T, among others—have spent the last decade warning us about these excesses. Their reward has been, at best, to be ignored and, at worst, to be prosecuted by the executive branch for trying to expose this wrongdoing.
We now live in an age when a government employee who goes to Congress and the inspector general of his own agency to report fraud, abuse and potential criminal conduct can become the target of the very government engaged in the kinds of unconstitutional actions currently making headlines. That must end, and now.
I cannot condone the unauthorized release of properly classified information, but neither can I ever countenance the misuse the classification system to hide fraud, abuse or criminal conduct by government officials. Legitimate national security whistleblowers should have real protections so they can safely and securely convey their concerns and allegations to Congress or their agency Inspector General free from the fear of bureaucratic or legal retaliation. And that is precisely why I will be offering legislation to repeal the PATRIOT Act and the FISA Amendments Act, and to provide real protections for national security whistleblowers.
We cannot simply tinker around the edges of an opaque, non-adversarial and broken surveillance law and its accompanying secret court. Restoration of a true probable cause-based warrant requirement for surreptitiously tracking American citizens allegedly involved in criminal activity is vital. And we must ensure that those seeking to report abuses can do so safely and securely. Our government must do what the founders intended: treat all Americans as citizens first, not suspects.