PATRIOT Act erodes privacy rights, advocates charge
The Electronic Frontier Foundation is calling on Congress to create a 21st-century version of the Church Committee to curtail the government's collection of ordinary Americans' credit card, telephone and Internet records.
“The parallels between the 1970s and today are unmistakable,” said Kurt Opsahl, senior staff attorney of the San Francisco-based, nonprofit foundation. “Then as now, we see a massive surveillance program of electronic communication.
“Back then, you had telegrams and telephones. Today, you have cellphones and computers,” he said. “The result has been the same — the growth of a secret surveillance state that must be cut back.”
Sen. Frank Church, an Idaho Democrat, chaired the select bipartisan committee that was developed as Washington recovered from the Watergate scandals that rocked President Nixon's administration. The committee's 1975 investigations uncovered a long list of federal spying and dirty tricks during the Cold War against the Soviet Union that raked in domestic civil rights groups, draft protesters, political parties and tens of thousands of ordinary Americans.
Armed with the findings, Congress passed laws during the next three years to rein in the power of federal law enforcement, military, tax collection and espionage agencies. Critics say those protections eroded after 9/11 and twin wars in Afghanistan and Iraq.
Case in point is the key law born from the Church Committee's findings, the Foreign Intelligence Surveillance Act of 1978, or FISA. Designed to regulate how and when a federal agency could eavesdrop on American citizens communicating with foreign powers during the Cold War, FISA's court convened in secret but required agencies to obtain warrants from its judges before snooping.
The USA PATRIOT Act of 2001 and later amendments transformed FISA into a toothless tiger when it comes to protecting privacy, critics claim. They say its court rubber-stamps requests that other federal magistrates would toss out. No citizen can appear to challenge the court's decrees, and mandatory gag orders prevent discussions of rulings when they're issued.
FISA judges approved all 1,856 warrants the Department of Justice requested in 2012, with the government withdrawing only one application. The judges modified 40 more, according to its annual report.
The Electronic Frontier Foundation has a pending lawsuit against the National Security Agency over what it considers unconstitutional surveillance of Americans.
“There's no reason other than politics why Congress can't create a ‘special advocate,' a security-cleared lawyer whose only job is to argue against the government before the FISA court,” said Stephen I. Vladeck, professor of law and associate dean for scholarship at American University's Washington College of Law.
Part of the legal team that successfully challenged the George W. Bush administration's use of military tribunals for terror suspects held in Guantanamo Bay, Cuba, Vladeck supports the push for a modern Church Committee but doubts a politically divided and disinterested Congress will create one, mostly because lawmakers would have to admit their own roles in the mess, he said.
Others think that controversies battering the Obama administration have reached a “critical mass” and could spur lawmakers in both parties to act. The White House continues to face allegations that its Internal Revenue Service badgered conservative groups seeking tax exempt status. In court documents, the Department of Justice named a Fox News reporter an unindicted spy for working on a story about North Korea. The department recently seized phone records tracking Associated Press journalists.
“The latest stories have been very damaging to the White House, but the most concerning have been about the surveillance programs,” said retired Air Force Col. Morris Davis, the former chief military prosecutor of terrorist suspects at Guantanamo. “At the rate it's going, the average American is going to believe that the only safe way to talk to another American without the government finding out is by carrier pigeon.”
When the Tribune-Review, sister paper of The Valley Independent asked White House spokesmen for the president's opinion on the establishment of a select committee to probe domestic surveillance programs and recommend changes, they passed the question to the National Security Agency, the organization revealed to have been copying all domestic phone records through FISA court rulings.
The NSA declined comment.
Carl Prine is a staff writer for Trib Total Media. He can be reached at 412-320-7826 or firstname.lastname@example.org.