American Civil Liberties Union (ACLU) Deputy Legal Director Jameel Jaffer writes in Huffington Post about the upcoming deadline in the lawsuit challenging the FISA Amendments Act of 2008, which legalized unprecedented levels of government surveillance on Americans.
. . . the administration must decide by Tuesday whether to ask the Supreme Court to intervene in the ACLU's constitutional challenge to the FISA Amendments Act . . . For a full decade, the executive branch -- first the Bush administration and now the Obama administration -- has used the standing and "state secrets" doctrines to insulate its most intrusive surveillance activities from public oversight and judicial review. But . . . [t]he courts have a role to play in ensuring that government surveillance complies with the Constitution. We'll find out on Tuesday whether the Obama administration is finally willing to let the courts play that role.
[The FISA Amendments Act] . . . is scheduled to sunset in December, which means that the litigation will unfold against the background of a congressional reauthorization debate.The congressional and legal battles on warrantless surveillance also come with a more informed public, thanks in part to Jane Mayer's extensive New Yorker story on National Security Agency (NSA) whistleblower Thomas Drake. Senators Ron Wyden (D-OR) and Mark Udall (D-CO) also warned that the public would be stunned and angry when we found out about the Justice Department's secret interpretation of another spy provision (PATRIOT Act Section 215) radically expanded in the aftermath of 9/11.
Should the Obama administration seize the opportunity next week to allow the courts to play their constitutionally-mandated role in protecting the rights of individuals from government action, it will be one of the only glimmers of accountability for the national security surveillance establishment since Obama took office.
Congress weakened FISA in 2007 and then again in 2008 to permit the warrantless wiretapping that the law had previously prohibited. It granted retroactive immunity to the companies that had facilitated the warrantless wiretapping program. And it gave the NSA unprecedented power to monitor the international communications of people living in the United States — to listen to their phone calls, and to read their emails. "We are targeting our own country," one NSA whistleblower observed.The FISA Amendments Act gave the NSA enormous power, but NSA whistleblower (and client of my organization, the Government Accountability Project) William Binney believes the agency has gone even further.
From Mayer's New Yorker article:
Binney, for his part, believes that the agency now stores copies of all e-mails transmitted in America, in case the government wants to retrieve the details later. In the past few years, the N.S.A. has built enormous electronic-storage facilities in Texas and Utah. Binney says that an N.S.A. e-mail database can be searched with “dictionary selection,” in the manner of Google. After 9/11, he says, “General Hayden reassured everyone that the N.S.A. didn’t put out dragnets, and that was true. It had no need—it was getting every fish in the sea.”Congress and the administration should heed Binney's words and move away from "exactly what the Founding Fathers never wanted."
Binney considers himself a conservative, and, as an opponent of big government, he worries that the N.S.A.’s data-mining program is so extensive that it could help “create an Orwellian state.” Whereas wiretap surveillance requires trained human operators, data mining is automated, meaning that the entire country can be watched. Conceivably, U.S. officials could “monitor the Tea Party, or reporters, whatever group or organization you want to target,” he says. “It’s exactly what the Founding Fathers never wanted.”