200,000 warrantless searches performed by the FBI

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On August 7, BORDC co-sponsored an event in Salt Lake City, about how Utahns can help stop the NSA dragnet. This blog post includes the prepared remarks of former Salt Lake City Mayor Ross C. “Rocky” Anderson.

During the Kennedy, Johnson, and Nixon administrations, US intelligence agencies engaged in widespread illegal misconduct, far outside the checks and balances of constitutional government. The FBI, after engaging in warrantless wiretapping, tried to blackmail Martin Luther King, Jr. into committing suicide.  The CIA hired the Mafia to try to assassinate Fidel Castro.  The CIA supported the overthrow of Chile’s democratically elected government.  In the COINTELPRO program, the FBI, in the name of national security, conducted illegal investigations of people and organizations engaged in lawful conduct, meted out secret punishments, and promoted violence, broke up marriages of civil rights workers, falsely labeled people as government informers to provoke reprisals against them, and effectively prevented citizens from speaking, teaching, writing, and publishing.  The FBI and CIA also engaged in a massive letter-opening campaign, all without warrants and with knowledge of its illegality.

There are times when our government rises to the occasion and casts a light on wrongdoing that inspires us as as to the grand possibilities of our democracy in safeguarding our liberties and providing us the truth about what our government is doing, and what it has done.  The Church Committee, during 1975-76, investigated and disclosed to the American people horrendous abuses by the intelligence community, providing the sort of disclosure and wisdom that restores the health and integrity of our threatened republic.  It demonstrated that vigilance and an insistence upon the truth are, indeed, essential to our freedoms and democracy.  The Church Committee’s work serves as an inspiring object lesson for what urgently needs to happen if we are to keep our republic. Following the revelations of the Church Committee, in 1978 Congress passed the Foreign Intelligence Surveillance Act, known as FISA, which made it a felony to engage in electronic surveillance of communications involving US citizens without obtaining a warrant.  FISA set up a special court for consideration of warrant requests, preserving secrecy and even allowing, in emergency circumstances, surveillance for up to 72 hours in advance of obtaining a warrant. That legislation was amended several times after 9/11, but Congress preserved the prohibition against domestic surveillance without a judicial warrant and left in place the requirement that the administration report to Congress about FISA’s use semiannually.

Addressing the matter at a press conference, President Bush represented that his administration obtains warrants in every instance when wiretapping “because we value the Constitution.” He was deceiving the American people and Congress.  In mid-December 2005, we learned, a year after the New York Times had first discovered the unconstitutional conduct, that President Bush, for years, had ordered the National Security Agency to engage in warrantless surveillance of US citizens’ emails, phone calls, and other communications in violation of the Constitution and FISA.The President disregarded the warrant and reporting requirements of federal law, claiming he had unlimited presidential power to spy without any restraint by Congress.

What has Congress done in the face of this blatant disregard for laws passed by Congress?  Nothing whatsoever.  No, worse than that.  It has made the matter far worse.  In the FISA Amendments of 2008, it provided retroactive immunity to the telecommunication companies that joined with the government in the illegal spying on Americans and, incredibly, has dispensed with any warrant requirement in individual cases when the government merely asserts that a targeted party is in another country. Because of the absence of any investigation like that conducted by the Church Committee, to this day we still do not know how many people were subjected to illegal surveillance, no one has been brought to account for the felonious spying on Americans, and we have no idea to what use the information illegally obtained has been put or even where it is stored today.

You don’t know, and I don’t know, and members of Congress do not know, if any of our communications have been illegally intercepted and retained by our government. The Obama administration so far has brushed aside the rule of law, making certain there is no accountability for those who blatantly violated the Constitution and FISA. And the courts?  What have the courts done to provide a check on this illegal conduct?

In the case of ACLU v. NSA, District Court Judge Anna Taylor found that the spying program was unconstitutional and that it violated federal law.  She found that, in engaging in the illegal program, “[T]he separation of powers doctrine has been violated.” Some of the plaintiffs in that case are lawyers who felt professionally obliged not to communicate with their clients overseas because of the spying program. In a 2-1 decision of the United States Court of Appeals for the Sixth Circuit reversing Judge Taylor, the majority admitted that the conduct complained of is undisputed – that “the NSA (1) eavesdrops, (2) without warrants, (3) on international telephone and email communications . . .” (493 F.3d 644, 653 (6th Cir. 2007)   However, the majority found that because the plaintiffs were foreclosed by the state secrets doctrine from discovering if their communications had been subjected to government surveillance, they did not have standing to challenge the obviously illegal warrantless spying program.

The Bush administration’s strategy of blocking the courts from checking Executive abuses of power is being continued by the Obama administration. A frightening reminder of just how far Congress has gone to permit the Executive Branch to invade freedoms most of us previously took for granted is the National Security Letter provision of the US PATRIOT Act.  That provision permits the FBI to compile vast dossiers about anyone, without any showing of any cause whatsoever, by obtaining all sorts of information we all assume is private.  If you have visited a web site, the FBI can obtain that information and the company providing it cannot tell you about it.

The FBI can also, without your knowledge, obtain a list of e-mail addresses with which you have corresponded, as well as business records and a list of books you have checked out from a library.  Between 2003 and 2006, the FBI issued nearly 200,000 National Security Letters – all without a warrant and without any showing of probable cause. As the Executive Branch has expanded its powers enormously, as Congress has not even whimpered in protest or, worse, actively participated, and as the courts have so often failed to provide a check on abuses of Executive power, our freedoms are severely diminished and our constitutional system of checks and balances is emasculated.