How would you feel if a soldier arrived at the door of your house and announced that on behalf of the U.S. military, he would be installing a voice recorder under your kitchen table to capture all of your conversations, and also splicing a data recorder into the cables in your basement to monitor your e-mails? What would you tell him if he reassured you, “Don’t worry, we’ll only arrest you if you say or write something suspicious”? Exactly where would you tell this soldier to go?
What if that soldier was invisible?
The world of people who pay attention is shaking this morning with news that:
- the U.S. National Security Agency, a branch of the U.S. military, is collecting and warehousing nearly every form of electronic communications, without warrants
- the database is being dredged by the Drug Enforcement Agency to find references to drug buys
- the DEA in turn is tipping off local law enforcement so they can make arrests
- then local law enforcement is using “random checks” and other methods of “parallel construction” to create the appearance that their arrests are based on legitimately obtained evidence
- violating the law against improperly obtained evidence, all this is being kept secret from criminal defendants, lawyers and judges
This process violates criminal law, the fourth, fifth and sixth amendments to the Constitution, and legal experts are coming out of the woodwork to condemn this process:
- “You can’t game the system. You can’t create this subterfuge. These are drug crimes, not national security cases. If you don’t draw the line here, where do you draw it?” — Henry E. Hockeimer, former federal prosecutor
- “That’s outrageous. It strikes me as indefensible.” — James Felman, vice chairman of the criminal justice section of the American Bar Association
- “If the information from surveillance or wiretaps is used by the NSA inconsistently with the warrant or other permission from the FISA court, certainly there would be a violation of law.” — Senator Richard Blumenthal
- “I hope it is a sort of wake-up call for people in Congress to say now is the time, finally after 40 years, to say this agency really needs a close examination.” — Ethan Nadelmann, executive director of the Drug Policy Alliance
- “They’re prosecuting people and putting people in prison for using evidence that they’ve acquired illegally, which they’re then covering up and lying about and deceiving courts into believing was actually acquired constitutionally. It’s a full-frontal assault on the Fourth, Fifth and Sixth Amendments and on the integrity of the judicial process, because they’re deceiving everyone involved in criminal prosecutions about how this information has been obtained.” — Glenn Greenwald, Guardian reporter
If you think the use of NSA warrantless surveillance data to pursue people for everyday crimes is limited to the drug war, think again. Greg Miller of the Washington Post reveals how President Barack Obama’s reassurances on this account are misleading:
“What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls and the NSA cannot target your e-mails,” Obama said in his June 17 interview on PBS’s “Charlie Rose Show.”
But even if it is not allowed to target U.S. citizens, the NSA has significant latitude to collect and keep the contents of e-mails and other communications of U.S. citizens that are swept up as part of the agency’s court-approved monitoring of a target overseas.
The law allows the NSA to examine such messages and share them with other agencies if it determines that the information contained is evidence of a crime, conveys a serious threat or is necessary to understand foreign intelligence.
Stewart Powell of the San Francisco Chronicle confirms that the NSA has been handing just such information to the Justice Department for law enforcement action:
The National Security Agency is handing the Justice Department information, derived from its secret electronic eavesdropping programs, about suspected criminal activity unrelated to terrorism. This little-known byproduct of counterterrorism surveillance continues amid controversy over the NSA’s wide-ranging collection of domestic communications intelligence, including Americans’ telephone calling records and Internet use…. The NSA referrals apparently have included cases of suspected human trafficking, sexual abuse and overseas bribery by U.S.-based corporations or foreign corporate rivals that violate the Foreign Corrupt Practices Act.
And while Eric Lichtblau and Michael Schmidt of the New York Times emphasize the difficulties and frustrations for agencies requesting to use NSA surveillance data for their own purposes, their article identifies the Secret Service, Department of Defense, Department of Homeland Security, DEA and Department of Justice as recipients of this data.
It’s becoming increasingly clear that warrantless surveillance is being used as a tool of the police for normal crimes. That all this is unconstitutional and illegal no longer appears to matter. Power alone appears to be a sufficient justification.