Judicial Review for NSA Spying Exists For A Reason




President Obama doesn’t believe the recently extensive surveillance of Americans’ electronic communications by the National Security Agency violates Americans’ privacy rights according to his chief of staff. But ultimately it’s not up to the president to decide whether or not spying programs are Constitutional. Shielding surveillance efforts from Congressional or Judicial scrutiny is entirely improper and precludes the only mechanism citizens have to protect themselves from an overreaching surveillance state which violates citizens’ Fourth Amendment rights.

At issue is whether secret, warrantless NSA spying programs such as PRISM and the hilariously named Boundless Informant violate the Fourth Amendment, which guards against unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.

The Obama Administration claims that the secret collection of massive amounts of data of law-abiding American citizens without a warrant or probable cause was “legal and authorized by Congress.”

“The president is not saying ‘trust me.’ The president is saying I want every member of Congress, on whose authority we are running this program, to understand it, to be briefed about it, and to be comfortable with it,” [White House Chief of Staff Denis McDonough] said.

The claim that Congress was briefed on the program prior to the leak is dubious, however, as the NSA has previously lied to Congress about its monitoring programs.

Gizmodo describes PRISM as a secret government surveillance program in effect since 2007 which “gives the NSA unprecedented access to the servers of major tech companies.” So any information you transmit using products from, among others, Microsoft, Yahoo, Google, Facebook, AOL, Skype, YouTube and Apple can be monitored and recorded.

What that means is that an NSA agent who desires to read all your audio and video chats, photographs, emails, Skype calls, Facebook messages and more must simply claim to be 51 percent sure you’re communicating with someone overseas. No warrant. No probable cause.

Gizmodo goes on the explain the legal rationale of the program:

The Protect America Act of 2007 made it possible for targets to be electronically surveilled without a warrant if they were “reasonably believed” to be foreign. That’s where that 51 percent comes in. It was followed by the 2008 FISA Amendments Act, which immunized companies from legal harm for handing information over to the government. And that’s the one-two punch that gives PRISM full legal standing.

Now I don’t personally understand how this could possibly fail to be a violation of the Fourth Amendment. But it’s not up to me to decide. It’s also not up to Barack Obama to decide. It’s up the courts to decide. And it’s up to concerned citizens and Congresspeople to bring possible violations of Americans’ civil liberties up for judicial review. But when government programs operate in secret, it necessarily precludes this necessary process.

Sen. Ron Wyden, D-Ore., a member of the Senate Select Committee on Intelligence and tireless advocate for citizens’ privacy, has repeatedly complained that he has no access to information on what data security agents are collecting and what they’re using it for.

White House Chief of Staff Denis McDonough may claim that President Obama isn’t asking us to trust him. But if Congress either doesn’t get briefed or is fed false information on domestic spying, what other choice does that leave us? Whatever he wants to call it, ultimately, it’s not good enough. The threat that boundless, unconstitutional spying poses to Americans’ safety and freedom of expression far exceeds any threat created by transparency in national security surveillance practices. No more secret spying. It’s time to let the courts decide.

This post originally appeared at Doublethink magazine.

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