“Those who would give up Essential Liberty, to purchase a little Temporary Safety, deserve neither Liberty nor Safety." — Benjamin Franklin, Reply to the Governor of Pennsylvania, November 11, 1755
Yesterday, we were struggling to digest the revelation that every Verizon user's cell phone activity was being monitored by the federal government. Within twenty-four hours, we learned that it was happening at AT&T and Sprint, too. And it was happening to credit card receipts. And social media communications, online video conferences, email, documents stored in the Internet cloud.
Sources within the intelligence community have leaked documents that introduced America to a vast surveillance state, which has been growing for years, nourished by powers granted in the Patriot Act - whose author, Rep. Jim Sensenbrenner (R-WI), who says all this was "never the intent" of his legislation. He described what he's seeing today as "excessive and un-American."
On the other hand, we have bipartisan assurances from Congress that all of this is necessary, and it has prevented terror attacks - although it makes the threats they didn't detect, like the Boston Marathon bombers, seem even more curious.
While most of these programs had their origins under the Bush Administration, their scope has expanded enormously under President Obama, who sold himself as deeply skeptical of the War on Terror strategies he ended up adopting and intensifying. He's also spent a good deal of time over the last year assuring Americans that he broke the back of global terrorism. But even as he was declaring victory, his Administration was harvesting data on just about every phone call and Internet communication. And he's given us good reason to doubt that he and his subordinates can be trusted with sensitive information about American citizens.
Now that the beans have been spilled, there will be a vigorous debate about whether all of this is necessary. The public is generally supportive of national security measures, but are they comfortable with a world in which everyone is monitored, instead of directing surveillance against threats that have been carefully identified and subjected to extensive review? Are we ready to abandon privacy by default?
As Benjamin Franklin stated in his letter:
“In fine, we have the most sensible Concern for the poor distressed Inhabitants of the Frontiers. We have taken every Step in our Power, consistent with the just Rights of the Freemen of Pennsylvania, for their Relief, and we have Reason to believe, that in the Midst of their Distresses they themselves do not wish us to go farther. Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety. Such as were inclined to defend themselves, but unable to purchase Arms and Ammunition, have, as we are informed, been supplied with both, as far as Arms could be procured, out of Monies given by the last Assembly for the King’s Use; and the large Supply of Money offered by this Bill, might enable the Governor to do every Thing else that should be judged necessary for their farther Security, if he shall think fit to accept it. Whether he could, as he supposes, “if his Hands had been properly strengthened, have put the Province into such a Posture of Defence [sic], as might have prevented the present Mischiefs,” seems to us uncertain; since late Experience in our neighbouring [sic] Colony of Virginia (which had every Advantage for that Purpose that could be desired) shows clearly, that it is next to impossible to guard effectually an extended Frontier, settled by scattered single Families at two or three Miles Distance, so as to secure them from the insidious [sic] Attacks of small Parties of skulking Murderers: But this much is certain, that by refusing our Bills from Time to Time, by which great Sums were seasonably offered, he has rejected all the Strength that Money could afford him; and if his Hands are still weak or unable, he ought only to blame himself, or those who have tied them.”
*Pennsylvania Assembly: Reply to the Governor, November 11, 1755. — The Papers of Benjamin Franklin, ed. Leonard W. Labaree, vol. 6, p. 242 (1963).
*This quotation, slightly altered, is inscribed on a plaque in the stairwell of the pedestal of the Statue of Liberty: “They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.”
While Franklin was referring to the willingness of some of citizens of Pennsylvania to accept the security offered by the King of England and his armies his quotation is as valid today as it was in 1755 —21 years prior to his contributions to Jefferson in authoring the Declaration of Independence.
Today it appears by the latest reports concerning the NSA and the FBI data mining our phone records and Internet browsing through its PRISIM program that we are trading or rights to privacy for some sense of security from unknown terrorist. The question is who are the alleged terrorists? Are the members of al Qaeda or some other radical Islamic group? Are they the Minutemen who monitor the border with video cameras? Are the groups in Montana or Idaho that do not want government interference of any sort in their lives? Are the Tea Party members who want a smaller and more fiscally responsible federal government? Or are they pro-life groups picketing Planned Parenthood clinics?
President Obama stated today in the Silicon Valley prior to his meetings with the Chinese that “we require a modest encroachment of our liberties to protect us against terrorists. I would remind the so-called law school scholar of the words of the First and Fourth Amendments to the Constitution:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A search and seizure by a law enforcement officer without a search warrant and without probable cause to believe that evidence of a crime is present. Such a search or seizure is unconstitutional under the Fourth Amendment (applied to the states by the Fourteenth Amendment), and evidence obtained from the unlawful search may not be introduced in court.
In order to invoke protection under the Fourth Amendment against unreasonable searches and seizures, an individual must first have a reasonable expectation of privacy with regards to the location that was subject to the search or to the item that was seized.
A search warrant is a type of warrant that authorizes law enforcement officers to search a specified place for evidence. Without a search warrant, police officers may not search a place without its owner’s consent.
Only judges may issue search warrants. To obtain a warrant, law enforcement officers must show that there is probable cause to believe a search is justified. Officers must support this showing with sworn statements (affidavits), and must describe in particularity the place they will search and the items they will seize. Judges must consider the totality of the circumstances when deciding whether or not to issue the warrant. When issuing a search warrant, the judge may restrict the when and how the police may conduct the search.
The Fourth Amendment does not require officers seeking a warrant to show that the people or places to be searched committed any crime. Rather, they merely need to show probable cause that the sought-after evidence is there. For example, in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), the Supreme Court allowed police to search a student newspaper, where the newspaper was not implicated in any criminal activity but police suspected it had photographic evidence of the identities of demonstrators who assaulted police officers. However, some jurisdictions responded by passing laws restricting or forbidding these kinds of searches
Even the FISA Court must have a semblance of “probable cause” to issue a warrant. In this case a warrant for the phone records, e-mail records, Internet browsing and YouTube records of 313 million people does not sound like probable cause to me — but I’m no lawyer.
With news of the Obama administration seizing the phone records of every Verizon user in the country, it’s a good time to review the president’s previous comments and votes on the Patriot Act.
On December 15, 2005, for instance, Obama gave a speech on the Senate Floor regarding the Patriot Act:
“…And if someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document – through library books they’ve read and phone calls they’ve made – this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear their plea, no jury will hear their case. This is just plain wrong. Giving law enforcement the tools they need to investigate suspicious activity is one thing – and it’s the right thing – but doing it without any real oversight seriously jeopardizes the rights of all Americans and the ideals America stands for.”
You can read the full speech by clicking here
In March of 2006, Obama voted yes on the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 titled, “A bill to clarify that individuals who receive FISA orders can challenge nondisclosure requirements, that individuals who receive national security letters are not required to disclose the name of their attorney, that libraries are not wire or electronic communication service providers unless they provide specific services, and for other purposes.”
On August 3, 2007, Obama voted no on the Protect America Act of 2007, titled, “A bill to amend the Foreign Intelligence Surveillance Act of 1978 to provide additional procedures for authorizing certain acquisitions of foreign intelligence information and for other purposes.”
On July 10, 2008, Bush signed H.R. 6304, FISA Amendments Act of 2008. Obama said:
“The most important lessons learned after 9-11 was that America’s Intelligence professionals lacked some of the tools they needed to monitor the communications of terrorists abroad. It’s essential that our Intelligence community knows who our enemies are talking to, what they’re saying, and what they’re planning. This law will insure that those companies whose assistance is necessary to protect the country will themselves be protected from lawsuits from past or future cooperation with the government.”
On March 31, 2008, while campaigning for his first term, Obama spoke about the Patriot Act in Lancaster, PA:
“Most of the problems that we have had in civil liberties were not done through the Patriot Act, they were done through executive order by George W. Bush. That’s what happened with Guantanamo, that’s what happened with the warrantless wire-taps, that’s what’s happened with the suspension of habeas corpus, that’s what’s happened in terms of the rounding up of Americans of Muslim extraction- those weren’t done through the Patriot Act. Those were all done separately.
There were some provisions in the Patriot Act that actually did address changes that needed to take place. Prior to the Patriot Act, you could not wiretap a phone that wasn’t land-based. Now think about it, nobody uses a land-based phone anymore. Certainly people who might be engaging in terrorism aren’t going to be using an old dial-up phone.”
But now Obama has changed his tune.
Today according to the New York Times President Obama offered a robust defense of the government surveillance programs revealed this week, and sought to reassure the public that his administration has not become a Big Brother with eyes and ears throughout the world of online communications.
Nobody is listening to your telephone calls,” Mr. Obama said, delivering a 14-minute answer to two questions about the surveillance programs at an event that was initially supposed to be devoted to the health care law. “That’s not what this program is about.”
The president’s remarks, during a four-day trip to the West Coast, were his first since the revelations this week of programs to collect information about phone calls and Internet traffic. Obama said the programs help prevent terrorist attacks and they are kept in check by rigorous judicial and Congressional oversight.
He acknowledged that the public may be uncomfortable with the broad reach of the formerly secret programs, but he said he believed the government had struck the right balance between the need to fight terrorism and the need to protect privacy.
“You can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience,” Obama said, repeatedly stressing that the lawmakers from both parties and federal judges were aware of the efforts. “You know, we’re going to have to make some choices as a society.”
Obama remained silent on Thursday as national security leaks revealed the secret programs for collecting the information, but today he appeared eager to explain them at length. He dismissed what he called “some of the hype” from news reports and emphasized the limits on the programs.
“If the intelligence community actually wants to listen to a telephone call, they have to go back to a federal judge,” Obama said. He said the collection of information from Internet companies like Google and Apple does not apply to American citizens or people living in the United States.
He repeatedly stressed that the surveillance programs were subject to Congressional oversight. In fact, he suggested that the programs — which he conceded were classified as top secret — were not truly secret because many members of Congress were aware of them.
“What you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress,” the president said. “Bipartisan majorities have approved them. Congress is continually briefed on how these are conducted. There are a whole range of safeguards involved. And federal judges are overseeing the entire program throughout.”
Mr. Obama suggested that Congressional debate behind closed doors should offer the public some confidence that the surveillance is not being abused. He said that those members of Congress — and the judges on the Foreign Intelligence Surveillance Act court — were watching the process.
“If in fact there were abuses taking place, then presumably, those members of Congress could raise those issues.” They are empowered to do so.” Obama said.
“If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here,” he said.
The president also said he welcomed a more public debate over the future of such surveillance programs and what should be the appropriate balance between civil liberties and the need to maintain national security. But he said there “are some trade-offs involved” in that debate.
“My assessment and my team’s assessment was that they help us prevent terrorist attacks,” Mr. Obama said.
Asked about government leaks that revealed the existence of the programs, the president defended the system of classifications that keeps information secret. And he suggested that such leaks make it harder for the government to protect Americans.
“If, in fact, this information ends up just being dumped out willy-nilly without regard to risks to the program, risks to the people involved, in some cases on other leaks, risks to personnel in very dangerous situations, then it’s very hard for us to be as effective in protecting the American people,” Obama said.
But the disclosure of the programs, which involve some of the nation’s biggest technology and communications firms — including Google, Apple and Verizon — seemed likely to prompt a vigorous discussion among policy makers and Internet consumers about the expectations for privacy and security in an increasingly connected and online world.
Earlier today, lawmakers in Washington, many of whom have been privately briefed on the secret surveillance efforts for years, sought to balance their public expressions of concern about the impact on privacy with the need to combat national security threats. Senator Angus King, a Maine independent who often votes with Democrats, said this morning that there needed to be a discussion about that balance.
“People ought to have at least a general idea of what’s going on,” Mr. King said on MSNBC’s “Morning Joe” program. “It’s unfortunate that it has to come out in the form of leaks. The question is where’s the appropriate balance?”
He added: “It makes me nervous that all those phone records are in the possession of the National Security Agency.”
Under the classified program revealed Thursday, the federal government has been secretly collecting information on foreigners overseas for nearly six years from the nation’s largest Internet companies in search of national security threats. The revelation came just hours after government officials acknowledged a separate seven-year effort to sweep up records of telephone calls inside the United States.
Dennis C. Blair, who served as Mr. Obama’s first director of national intelligence, said Friday that there was little debate at the beginning of the Obama administration about whether to continue the National Security Agency’s telephone and Internet surveillance programs that began under President Bush.
“In 2006 and 2007, everything was put under a legal basis. That looked pretty good to us, so we continued it,” Mr. Blair said in an interview with The New York Times. He said that the agency’s relationships with Internet companies have been especially valuable, given the volume of global communications that are now done strictly in cyberspace.
The disclosure of the extent of United States surveillance caused outrage on Friday among civil liberties and privacy groups in Europe, where data protection has become a hot-button issue. The possibility that the online communications of European citizens could have been caught up in the NSA’s data sweep, because of their use of American Internet services, caused particular anxiety.
Official reaction from European capitals was more subdued — perhaps partly, analysts said, because many governments would like similar powers to monitor Internet communications.
In Turkey, where antigovernment protests have been raging for more than a week, partly because of complaints about a lack of civil liberties and heavy-handed government, the revelations also touched a nerve.
“If the U.S. complains about foreign governments spying and then it turns out it is doing the same thing — well, what are you complaining about?” said Yaman Akdeniz, a law professor at Istanbul Bilgi University.
An array of civil liberties advocates and libertarian conservatives said the disclosures provided the most detailed confirmation yet of what has been long suspected about what the critics call an alarming and ever-widening surveillance state.
The Internet surveillance program collects data from online providers including e-mail, chat services, videos, photos, stored data, file transfers, video conferencing and logins, according to classified documents obtained and posted by The Washington Post and then The Guardian on Thursday afternoon.
In confirming its existence, officials said that the program, called Prism, is authorized under a foreign intelligence law that was recently renewed by Congress, and maintained that it minimizes the collection and retention of information “incidentally acquired” about Americans and permanent residents. Several of the Internet companies said they did not allow the government open-ended access to their servers but complied with specific lawful requests for information.
“It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States,” Mr. Clapper, the director of national intelligence, said in a statement, describing the law underlying the program. “Information collected under this program is among the most important and valuable intelligence information we collect, and is used to protect our nation from a wide variety of threats.”
The dual revelations, in rapid succession, also suggested that someone with access to high-level intelligence secrets had decided to unveil them in the midst of furor over leak investigations. Both were reported by The Guardian, while The Post, relying upon the same presentation, almost simultaneously reported the Internet company tapping. The Post said a disenchanted intelligence official provided it with the documents to expose government overreach.
The Guardian and The Post posted several slides from the 41-page presentation about the Internet program, listing the companies involved — which included Yahoo, Microsoft, Paltalk, AOL, Skype and YouTube — and the dates they joined the program, as well as listing the types of information collected under the program.
In my view all of this gobbledygook and double speak from the Obama Administration and Congress is purely Orwellian. This administration’s policies and actions regarding the IRS, Justice Department, and now the NSA’s data mining makes Orwell’s Big Brother look like little sister.
We are being told that the NSA is only collecting metadata and no phone records are being scrutinized in detail. Hogwash, metadata is data about the data. It is the key that use used to open the door to records you want to look at. As example the metadata will show the available records for John Doe are his e-mails, phone records, Internet browsing actives, books he has browed on Amazon, and if the ordered a magic pancake pan. All the investigator need do is click on one of those categories and bingo he or she is into the details. My Nikon D700 keeps metadata on all of my digital photos including a host of photographic information.
Obama is telling us they (NSA and FBI) are not listening to your phone calls. With Obama’s record of veracity this may or may not be true. In other words they are telling us they are collecting the data, just not querying it. How would you feel if the government said they would put a video camera in your house and film you every day and then store those recordings in a giant facility in Utah? They would tell you not to worry as no one would look at the video. If you believe that I have a bridge I can sell you a bridge in Brooklyn for a very low price with installment payments.
They tell us that to look at those recordings they need a warrant from a FISA Court (or some other judge). We know how that works. It took Eric Holder shopping three judges to get the warrant to look into Fox News’s James Rosen’s e-mails. Also remember that Rosen or Fox News knew nothing about it for over a year. All the Justice Department has to do is word the warrant in such a way (as Holder did) to include words like “criminal conspiracy”, “threat to national security”, or “prosecution for certain criminal acts.” Now in the Rosen case Holder states the DOJ had no intention of prosecuting Rosen. In essence they lied to the judge to get the warrant. So we are supposed to trust he government.
Suppose you forward those crazy unproven e-mails to you friends or you browse Google or Bing for information about radical Islam. What if you browse right-wing or libertarian web sites of look on Amazon for certain types of books like Tom Clancy, Vince Flynn, or Brad Thor thrillers? What if you browse prono sites or foreign newspapers online? How about blogging or posting on Facebook even moderate criticisms of Obama and his minions? What if you browse the Internet for information on firearms and ammunition? All of these things will be a part of the metadata.
Richard Reid was not apprehended due to good intelligence. He was caught trying to light his shoe on fire on an airliner.
The underwear bomber was caught trying to light his crotch on fire as the airliner he was one approached the Detroit airport. His father had warned U.S. officials of his son’s radical Islamic beliefs and his connection with known terrorist.
The Boston Marathon bomber was not caught because of good intelligence even though the FBI had records on him. One was caught due to a car hijacking and the other because a homeowner went out to smoke a cigarette and spotted blood on his boat.
Fort Hood did not happen due to the lack of intelligence. The Army knew Major Nidal Malik Hasan was a risk due to his expressed radical Islamic views and association with Anwar al-Awlaki, a known terrorist. He had been reading Inspire Magazine, the publication of al-Qaeda in the Arabian Peninsula (AQAP).Hasan had been under investigation by the Army CID. The problem was not the lack of definitive intelligence — it was the lack of political will by the Army.
Ever since 9/11 we have been losing our Constitutional liberties and rights drip by drip and the media has been negligent if not downright reluctant to expose these infringements. In some cases such as gun control and illegal immigration they have been willing accomplices in the process.
We are slowly allowing the Republic to be turned into an administrative state run by statists and masterminds from Washington, D.C. We are turning the Republic into Ameritopia. As James Madison wrote in his 1792 essay on property:
“He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.
Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.
He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.
Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.”
It seems that President Obama just can’t catch a break. He has most certainly had a difficult start to his second term. The debt ceiling and sequestration battle with House Republicans, attempts to broker a peace deal in Syria and the destruction of his gun control legislation have indeed been major setbacks.
But while these issues have been blows to the administration, they were at least somewhat beyond his control. The latest rash of scandals is very much homegrown in the Obama White House and they could, therefore, have been prevented.
We have all watched as one scandal after another has come to light. The administration has been overreaching in all areas: with the IRS, with journalists at the AP and James Rosen at Fox News and now it appears that their most egregious overreaching has been with the American citizenry.
We heard from Senate Majority Leader Harry Reid that we should all just calm down about the NSA’s request for Verizon to hand over all records of telephone calls within its system – both within the U.S. and between the U.S. and other countries. Apparently the fact that this isn’t a new practice means that it shouldn’t bother us.
Reid’s feelings on the matter are certainly shared by other members of Congress like Senator Saxby Chambliss and Lindsey Graham. But there are other influential members of Congress who see things the way the American public does. Republican Congressman Jim Sensenbrenner expressed his concern about the data collection.
He wrote in a letter to Attorney General Eric Holder, “as the author of the Patriot Act, I am extremely disturbed by what appears to be an overboard interpretation of the Act.” In a press release he continued, “seizing phone records of millions of innocent people is excessive and un-American.”
Leaked documents reveal that the NSA did not stop with the Verizon phone records.
They have been directly tapping the servers of nine leading US Internet companies, extracting video and audio chats, photographs, emails, documents, and connection logs that enable analysts to track foreign targets.
These Bush-era practices, practices that have expanded during Obama’s tenure. They have been vehemently defended and their exposure criticized for the impact on our national security. For instance, Director of National Intelligence, James Clapper, condemned the leaks of the classified documents.
Indeed, this disclosure does have the potential to reveal too much to our enemies about our practices, but it more importantly calls into question the practices of our own administration. And it has now become clear that those practices are not in step with promises the President made to Americans.
Just a few months ago, President Obama declared “this is the most transparent administration in history” during a Google Plus “Fireside” hangout. To be sure, transparency was one of the President’s biggest campaign promises and a featured element of his first four years in office.
But these recent scandals call into question the authenticity of Obama’s statement.
From Benghazi to the IRS to the latest news on the NSA it is quite clear that Obama’s administration is failing to keep their word on this issue.
The result has been that Obama’s agenda is essentially dead in the water. His days, and his administration’s days, are now spent playing defense — in press conferences, in hearings and elsewhere.
What’s more, the appointments of Ambassador Susan Rice as his new national security advisor and Samantha Power to replace Susan Rice as U.N. Ambassador indicate that the administration is doubling down, not reaching out.
At a time when the president should be doing all he can to reach across the aisle and to quell American’s fears and come clean he is not the man he said he was, he is just plodding along business as usual.
We don’t have time for business as usual anymore. There is far too much going on at home and abroad for the president to continue to ignore the crises his administration is facing.
If Obama cannot come clean and begin to take action to correct this course Congress must or Franklin’s caution will come true. As Lord Acton stated: “Power corrupts, and absolute power corrupts absolutely.”