More Evidence of Lawless US Spying
by Stephen Lendman
Post-9/11, unprecedented domestic spying began. It did so extrajudicially. It continues under Obama. It's institutionalized. It's warrantless. It's unconstitutional.
It doesn't matter. It's sweeping and all-embracing. It prioritizes everyone Washington wants monitored. Phone calls, emails, web sites visited, and other personal information is routinely collected.
Doing so reflects police state lawlessness writ large. It's official US policy. Constitutional protections don't matter. Government by diktats supersede them. Alleged national security priorities don't wash. They're fabricated to justify policy.
On June 27, London's Guardian headlined "NSA collected US email records in bulk for more than two years under Obama," saying:
NSA "collect(ed) vast amounts of records detailing the email and internet usage of Americans, according to secret documents obtained by the Guardian."
They reveal lawless Bush administration domestic spying. NSA codenamed it Stellar Wind. It continues under Obama. An unnamed senior administration official said it ended in 2011.
He lied. It continues. It's secret. It's more sweeping now than ever. It's done with technological ease.
A FISA court (FISC) judge approved Internet meta-data collection "every 90 days." Automatic renewals follow. Telecommunications are obtained the same way. Verizon, AT&T and other telecom companies provide them.
An NSA inspector general top secret report authorized "collection of bulk internet metadata (involving) communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States."
Targeting Americans followed. NSA's a power unto itself. It "analyze(s) communications meta-data associated with United States persons and persons believed to be in the United States."
A secret 2007 Justice Department memo revealed it. Internet meta-data collection continues. It "details the accounts to which Americans sent emails and from which they received emails."
"It also details the internet protocol addresses (IP) used by people inside the United States when sending emails - information which can reflect their physical location." Allegedly it "did not include the content of emails."
It's hard believing that's true. Washington's able to gather sweeping information. Prioritized targets are intensively monitored. Whatever's available is collected and stored.
In June 2011, Shawn Turner was appointed Director of Public Affairs for the Office of the Director of National Intelligence (ODNI). He handles National Intelligence communications.
Previously he was National Security Staff's Assistant Press Secretary for Foreign Affairs. He also worked for the Defense Department.
He lied saying "Internet metadata collectionâ€¦.authorized by the FISA court was discontinued in 2011 for operational and resource reasons and has not been restarted."
"The program was discontinued by the executive branch as the result of the interagency review." He didn't elaborate for good reason. The more explained, the clearer the fabrication.
Guardian-obtained documents show "collection of Americans' online records continues today." Last December, NSA began "analyz(ing) communications with one end inside the US, leading to a doubling of the amount of data passing through its filters."
Obama officials claim privacy rights are respected. Saying so defies reality. Deputy Attorney General James Cole defended lawless telecommunications spying, saying:
"Toll records, phone records like this, that don't include any content, are not covered by the fourth amendment because people don't have a reasonable expectation of privacy in who they called and when they called."
"That's something you show to the phone company. That's something you show to many, many people within the phone company on a regular basis."
This type reasoning turns constitutional rights on their head. A previous article cited United States v. US District Court (1972). The Supreme Court upheld Fourth Amendment protections in cases involving domestic surveillance targeting a domestic threat. Justices ruled unanimously.
In US v. Jones, Supreme Court, Justice Sonia Sotomayor acknowledged the need to update Fourth Amendment protections, saying:
"I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."
All constitutional rights matter. Congress may enact no laws violating them. Government agencies must respect them. Failure to do so flouts the law of the land.
Americans are protected against lawless searches and seizures. Personal information is private. Email content is routinely monitored. Internal government documents explain what's obtained.
"One 2008 document, signed by the US defense secretary and attorney general, states that the collection and subsequent analysis included 'the information appearing on the 'to,' 'from' or 'bcc' lines of a standard email or other electronic communication' from Americans."
It's hard "distinguish(ing) email meta-data from email content. Distinctions that might make sense for telephone conversations and data about those conversations do not always hold for online communications."
According to Cato Institute's Julian Sanchez:
"The calls you make can reveal a lot, but now that so much of our lives are mediated by the internet, your IP (internet protocol) logs are really a real-time map of your brain: what are you reading about, what are you curious about, what personal ad are you responding to (with a dedicated email linked to that specific ad), what online discussions are you participating in, and how often?"
"Seeing your IP logs - and especially feeding them through sophisticated analytic tools - is a way of getting inside your head that's in many ways on par with reading your diary."
A classified March 2009 draft NSA inspector general (IG) report said the Agency "analyzed networks with two degrees of separation (two hops) from the target."
In other words, NSA examines emails and other online communications between people who communicate with two or more others allegedly targeted.
NSA calls doing so "contact chaining." Others call it data-mining. Pre-9/11, a draft NSA IG report considered the practice off-limits, saying:
Data-mining was rejected when DOJ "told NSA that the proposal fell within one of the FISA definitions of electronic surveillance and, therefore, was not permissible when applied to metadata associated with presumed US persons."
Post-9/11, anything goes became policy. Sweeping surveillance followed. Big Brother watches everyone all the time everywhere. It does so lawlessly. Official denials don't wash.
An unnamed senior Obama official tried having things both ways. On the one hand, online meta-data-mining was denied. On the other:
"I'm not going to say we're not collecting any internet meta-data" followed.
The 1986 Electronic Communications Privacy Act (ECPA) restricts telecommunications wiretaps. It prevents unauthorized government access to private online communications.
It sets strict guidelines for search warrants. It protects stored online communications. It prohibits pen registering and/or trap and trace devices.
They're used to record dialing, routing, addressing, and signaling information for processing or transmitting wire or electronic communications without court order. Emails may be subpoenaed lawfully. Warrantless authorizations are prohibited.
USA Patriot Act provisions changed things. They subvert ECPA restrictions. So does the 2008 FISA Amendments Act.
Meaningful oversight is lacking. Constitutional rights don't matter. Lawless spying is out-of-control. Checking it is essential. Reforms are urgently needed. Privacy is too important to lose.
Government of, by and for everyone demands transparency. It requires obeying rule of law principles. It punishes violators.
Jennifer Granick is Director of Civil Liberties for Stanford Law School's Center for Internet and Society. Christopher Jon Sprigman is University of Virginia Professor of Law.
On June 27, they headlined their New York Times op-ed "The Criminal NSA," saying:
Meta-data-mining is lawless. Fundamental privacy rights are violated. The "letter" and "spirit" of "federal law" are "violate(d)."
"No (federal) statute explicitly authorizes mass surveillance." The Obama administration subverted legal provisions to permit it.
Strategy employed "consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve betterâ€¦"
Obama violates fundamental constitutional law he once taught. He defends the indefensible. Meta-data-mining is out-of-control.
Probable cause proving likely criminality no longer applies. Anything goes replaced it.
Representative James Sensenbrenner, Jr. (R. WI) helped draft Patriot Act provisions. He's no civil liberties champion. He's no profile in courage.
"Congress intended to allow the intelligence communities to access targeted information for specific investigations," he said.
Meta-data-mining isn't "targeted. How can every call that every American makes or receives be relevant to a specific investigation?"
Bush violated Patriot Act provisions. So does Obama. It's done egregiously. It's done extrajudicially. It's done unconscionably. Claiming the right to do so reflects "shockingly flimsy argument," said Granick and Sprigman.
"If all data (are) 'relevant,' it makes a mockery of the already shaky concept of relevance."
Director of National Intelligence James Clapper committed perjury. He lied telling Congress NSA doesn't spy on Americans.
He told NBC news that NSA uses the word "acquire" when it pulls information from its sweeping communications database. It's not when it intercepts and stores it.
According to Granick and Sprigman:
"If there's a law against torturing the English language, James Clapper is in real trouble." Obama conceals "incidental" surveillance of Americans "behind fuzzy language."
In late 2012, when Congress reauthorized the FISA Amendments Act for another five years, "legislators said Americans had nothing to worry about because surveillance could not 'target' American citizens or permanent residents."
Clapper said the same thing. They lied. Meta-data-mining evidence proves it.
"There is simply no precedent under the Constitution for the government's seizing such vast amounts of revealing data on innocent Americans' communications," said Granick and Sprigman.
Obama and Congress "made a mockery" of fundamental constitutional protections. We may never know the full extent of mass surveillance. Coverup and denial reflect official policy.
We do "know this:
"The administration has justified (mass spying) 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 NSA's mass surveillance programs what they are: criminal."
Stephen Lendman lives in Chicago. He can be reached at firstname.lastname@example.org.
His new book is titled "Banker Occupation: Waging Financial War on Humanity."