Right to Privacy Under Attack - in the Name of 'National Security'

The government's infringement upon the right to privacy is growing---and is defended on the basis of being necessary for "national security."

(WASHINGTON DC) - In 1978, Congress passed the Foreign Intelligence Surveillance Act, commonly known as FISA. It provided that all domestic surveillance be subject to the search warrant requirements of the Fourth Amendment, except for spying on foreign agents operating in the U.S. For such cases, FISA established a secret federal court which was authorized to issue search warrants to spy on foreign agents.

Andrew Napolitano, a former judge at the Superior Court of New Jersey and senior judicial analyst at Fox News Channel, notes that, "The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard (unconstitutional on its face since Congress is bound by, and cannot change, the Constitution) of probable cause of status. The status was that of an agent of a foreign power. So, under FISA, the Feds needed to demonstrate to a secret court only that a non-American physically present in the U.S., perhaps under the guise of a student, diplomat or embassy janitor, was really an agent of a foreign power, and the demonstration of that agency alone was sufficient to authorize a search warrant to listen to the agent's telephone calls or read his mail."

Over time, the requirements of status as a foreign agent was changed to status as a foreign person. Such a loose standard was rarely rejected by the FISA court, which granted search warrants in over 97 per cent of applications. Since foreign persons in the U.S. are often speaking to Americans, FISA not only violated the privacy rights of foreigners, which are the same as U.S. citizens since the Fourth Amendment protects "people," not just U.S. citizens, it also violated the rights of the Americans with whom they were communicating.

The Patriot Act, passed in 2001, permits federal agents to write their own search warrants and amended FISA so as to do away with the FISA-issued search warrant requirement, when the foreign person is outside the U.S. Thus, if an American calls or e-mails people abroad, the government can be reading or listening without a warrant. In Judge Napolitano's view, "FISA gives the government unchecked authority to snoop on all Americans who communicate with any foreign person, in direct contravention of the Fourth Amendment."

The Supreme Court heard arguments in 2012 in Clapper v. Amnesty International to decide whether the FISA law's constitutionality can be challenged. The Obama administration seeks to invalidate this lawsuit. Whether or not the Supreme Court will hear the case is yet to be decided.

At the same time, a court ruling in January on the public's right to know may bring some of the government's activities into public view. Judge Gladys Kessler of the U.S. District Court for the District of Columbia denied the Obama administration's request to exempt documents related to the government's Internet surveillance from Freedom of Information (FOIA) compliance. The judge also chastised administration officials for delays in producing records approved for release.

The case involved a pilot program operated jointly by the Department of Defense and Department of Homeland Security started in 2011 to monitor electronic traffic passing through certain Internet-service providers in an effort to catch hackers launching computerized attacks against the defense contractors' networks. The National Security Agency (NSA) joined with AT&T, Verizon and CenturyLink to spy on the Internet traffic of 15 defense firms that agreed to participate. Privacy advocates are concerned that having the government tap into the public Internet flow could lead to government spying on the electronic communications of private citizens. The Electronic Communications Privacy Act prohibits the interception of online traffic without a court order.

The Electronic Privacy Information Center filed a FOIA request for documents related to the program and sued when the NSA did not turn over the information. The center prevailed in its suit. THE WASHINGTON TIMES declares that, "...the nation needs robust tools to prevent terrorists and industrial thieves from undermining information links vital to national security...However, the war on terrorism could end up transforming 'The Land of the Free' into a surveillance society...As government seeks ways to defend us from our enemies, it is crucial that the Freedom of Information Act be preserved as a means of preventing Uncle Sam from attempting to fix his unblinking gaze on us instead."

Recently, Sen. Ron Wyden (D-OR), a member of the Senate Intelligence Committee, demanded that he and other committee members be allowed to review secret Justice Department legal opinions justifying the killing of American citizens in counterterrorism operations. In a letter to John Brennan, President Obama's counterterrorism adviser and the nominee for CIA Director, Sen. Wyden said he asked repeatedly but unsuccessfully to see the legal opinions. Senator Diane Feinstein(D-CA), chairman of the Senate Intelligence Committee, has also called on the administration to make this material available.

Sen. Wyden called the administration's current stance "unacceptable." He wrote that only by reviewing the exact language of the legal opinions could he "know whether the president's power to deliberately kill American citizens is subject to appropriate limitations."

In 2011, there was apparently a legal opinion justifying the killing of Anwar al Awlaki, an American-born cleric and Al Qaeda propagandist who was killed in a drone strike in Yemen. A federal judge in New York ruled on January 2 against the American Civil Liberties Union and THE NEW YORK TIMES which sought the opinions under the FOIA . They plan to appeal the ruling.

The expansion of government power and the limitation of our right to privacy has been bipartisan. The Bush Administration promoted the Patriot Act, and the Obama administration has expanded it. Most Republicans and Democrats have gone along. Only a handful of idealistic liberals and conservatives have resisted.

Those who seek to expand government power and diminish freedom always have a variety of good reasons to set forth for their purposes----in this case,"national security."

In the case of Olmstead vs. United States (1927), Justice Louis Brandeis warned that, "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in the insidious encroachment of men of zeal, well meaning but without understanding."

At the present time, in the name of "national security" we are seeing our freedom diminish---just as Justice Brandeis feared it would.

Allan C. Brownfeld is a nationally syndicated columnist and serves as Associate Editor of THE LINCOLN REVIEW and editor of ISSUES. The author of five books, he has served on the staff of the U.S. Senate, House of Representatives and the Office of the Vice President.