In 2015 mass surveillance may be in the dock in Washington

Stan Ward

Stan Ward

January 7, 2015

Warrantless, bulk surveillance of individuals began reasonably enough by order of President George W. Bush in the aftermath of the September 11, 2001 terrorist attacks, but many believe that it has spiraled out of control in the ensuing years.

The argument over whether the government has the right to unabated, unfettered access to private communications may come to a head this year as several cases are on offer to be heard by the US Supreme Court. In a compelling article at Ars Technica, five important cases which are highlighted for possible review by the Court are examined at length.

Much of law enforcement’s obtrusive spying on individual’s communications can be traced to a highly classified document that President Bush signed on October 4, 2001 entitled “Authorization for specified electronic surveillance activities during a limited period to detect and prevent acts of terrorism within the United States.” From this simple, well-meaning, decree (referred to as the President’s Surveillance Program or PSP) the monster of mass surveillance was unleashed, and has grown to the freakish proportions that frighten freedom loving citizens today.

It is important to focus on some key words in the authorization if we are to appreciate the arguments which will be made before the court. The first phrase which jumps out is “during a limited period.” Is it reasonable to assume that it was not meant to encompass thirteen years? But it has, and with no end in sight. The other words worth noting are ”…terrorism within the United States.” From published documents, Edward Snowden’s revelations for example, we now know that surveillance is at such a scale around the world that even our allies are up in arms.

An especially noteworthy section of the authorization provides a peek at the dilemma facing privacy advocates, and why the US Supreme Court must get involved. To wit:

“The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of this authority.

I added the emphasis regarding Congress’ impotency in the matter which underscores their annoyance at an “imperial” president who seeks to circumvent them rather than engage with them. This was true even when the Democrats controlled one or both chambers – he’s refused to acknowledge the concept of three branches of government working together.

The Obama administration steadfastly maintains that the PSP gives the President virtually unchecked authority to conduct extensive surveillance- the kind which includes the type highlighted in the cases-one or more likely to be heard by the Supreme Court.

In making determinations on the privacy issues, the Court will be faced with the daunting task of lifting the considerably heavy veil of secrecy to get at the heart of the matter. It appears that, inconceivably and inexplicably, the NSA did not see the text of the authorization with which it has conducted its egregious mass surveillance over the years. It apparently was not allowed to see it for two years, and in fact it has never been published. It goes without saying that the government will argue its case from the traditional, tired posture of national security.

The calendar will make for interesting reading because it will contain many elements of drama, not to mention irony. In one case, for example, First Unitarian Church v. NSA, software groups will be joined by gun owners in a delicious twist, as well as by Muslims and marijuana rights organizations. They all are appealing against dragnet spying which may reveal an individual’s associations.

One big case, Klayman v. Obama is only one of a number of notable national security and surveillance-related civil and criminal cases from which the Supreme Court can choose. This, like others, stem mainly from Edward Snowden’s revelations. It would be poetic justice to have the Supreme Court rule against the Obama administration using documents from the whistle blower which Obama so famously belittled, dismissed and disregarded a year and a half ago.

(As always we will note that Stan’s point of view and interpretation of events does not reflect that of the rest of the BestVPN staff).

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