Restore the Fourth… Let’s start by holding Levin and Stabenow accountable

On the Fourth of July, people around the country will be joining together to protest the illegal domestic spying activities of the American government at what are being called “Restore the Fourth” rallies… The reference, of course, is to Amendment IV of the Bill of Rights, which guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”… According to the information I’ve been able to find thus far, it looks as though an event was planned for Ann Arbor, but has been subsequently cancelled. I suppose it’s possible that something could come together at the last minute, but, if it doesn’t, I have a suggestion for local people who want to celebrate Independence Day in a way that doesn’t involve shooting off fireworks manufactured by Chinese prisoners… Write to your elected officials, and demand that they do something about this criminal abuse of power.

And, if you’re looking for a place to start, I’d suggest Michigan Senators Debbie Stabenow and Carl Levin.

Two days ago, 26 U.S. Senators submitted a letter to Director of National Intelligence James Clapper, who, by all appearances, purposely misled Congress last March, when, under oath, he told Senator Ron Wyden that the National Security Agency (NSA) was not purposefully collecting data on the American people. “No, sir… not wittingly,” was Clapper’s reply to the Senator’s direct question. And, now, a great many of United States Senators are demanding answers. Sadly, though, neither Stabenow nor Levin seem to care enough to join their colleagues.

[The senators who signed the letter are: Ron Wyden (D-OR), Mark Udall (D-CO), Lisa Murkowski (R-AK), Patrick Leahy (D-VT), Mark Kirk (R-IL), Dick Durbin (D-IL), Tom Udall (D-NM), Brian Schatz (D-HI), Jon Tester (D-MT), Jeanne Shaheen (D-NH), Dean Heller (R-NV), Mark Begich (D-AK), Bernie Sanders (I-VT), Patty Murray (D-WA), Jeff Merkley (D-OR), Mazie Hirono (D-HI), Al Franken (D-MN), Tom Harkin (D-IA), Chris Coons (D-DE), Maria Cantwell (D-WA), Richard Blumenthal (D-CT), Max Baucus (D-MT), Elizabeth Warren (D-MA), Martin Heinrich (D-NM), Tammy Baldwin (D-WI) and Mike Lee (R-UT).]

The entire letter can be downloaded from Senator Wyden’s website, but here are the seven questions posed to Clapper, which the document is built around.

1. How long has the NSA used PATRIOT Act authorities to engage in bulk collection of Americans’ records? Was this collection underway when the law was reauthorized in 2006?

2. Has the NSA used USA PATRIOT Act authorities to conduct bulk collection of any other types of records pertaining to Americans, beyond phone records?

3. Has the NSA collected or made any plans to collect Americans’ cell-site location data in bulk?

4. Have there been any violations of the court orders permitting this bulk collection, or of the rules governing access to these records? If so, please describe these violations.

5. Please identify any specific examples of instances in which intelligence gained by reviewing phone records obtained through Section 215 bulk collection proved useful in thwarting a particular terrorist plot.

6. Please provide specific examples of instances in which useful intelligence was gained by reviewing phone records that could not have been obtained without the bulk collection authority, if such examples exist.

7. Please describe the employment status of all persons with conceivable access to this data, including IT professionals, and detail whether they are federal employees, civilian or military, or contractors.

One wonders why exactly Stabenow and Levin don’t feel as though these are questions worth asking.

Here are their numbers, if you’d like to join me in calling them.

STABENOW: (202) 224-4822
LEVIN: (202) 224-6221

Speaking of Clapper, did you happen to see the editorial in today’s New York Times by Jennifer Stisa Granick, the director of civil liberties at the Stanford Center for Internet and Society, and Christopher Jon Sprigman, professor at the University of Virginia School of Law? If not, here’s a little bit to get you started.

…How could vacuuming up Americans’ communications conform with this legal limitation? Well, as James R. Clapper Jr., the director of national intelligence, told Andrea Mitchell of NBC, the N.S.A. uses the word “acquire” only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information.

If there’s a law against torturing the English language, James Clapper is in real trouble.

The administration hides the extent of its “incidental” surveillance of Americans behind fuzzy language. When Congress reauthorized the law at the end of 2012, legislators said Americans had nothing to worry about because the surveillance could not “target” American citizens or permanent residents. Mr. Clapper offered the same assurances. Based on these statements, an ordinary citizen might think the N.S.A. cannot read Americans’ e-mails or online chats under the F.A.A. But that is a government ­fed misunderstanding.

A “target” under the act is a person or entity the government wants information on — not the people the government is trying to listen to. It’s actually O.K. under the act to grab Americans’ messages so long as they are communicating with the target, or anyone who is not in the United States.

Leave aside the Patriot Act and FISA Amendments Act for a moment, and turn to the Constitution.

The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government’s seizing such vast amounts of revealing data on innocent Americans’ communications.

The government has made a mockery of that protection by relying on select Supreme Court cases, decided before the era of the public Internet and cellphones, to argue that citizens have no expectation of privacy in either phone metadata or in e-mails or other private electronic messages that it stores with third parties.

This hairsplitting is inimical to privacy and contrary to what at least five justices ruled just last year in a case called United States v. Jones. One of the most conservative justices on the Court, Samuel A. Alito Jr., wrote that where even public information about individuals is monitored over the long term, at some point, government crosses a line and must comply with the protections of the Fourth Amendment. That principle is, if anything, even more true for Americans’ sensitive nonpublic information like phone metadata and social networking activity.

We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government’s professed concern with protecting Americans’ privacy. It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.

It is criminal. And it needs to stop. Please join me this Fourth of July in calling your elected officials.