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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, December 25, 2005

The threat to privacy posed by limitless Government eavesdropping (updated)

Frank Church was a U.S. Senator from Idaho from 1956 to 1980, whose work overseeing and reforming abuses by the American intelligence community left a controversial legacy. Church himself was a military intelligence officer during World War II, and he became best known in the Senate for his work as Chairman of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, which investigated and documented serious abuses by the CIA and FBI against American citizens.

The work of Church’s Committee led in the mid-1970s to an array of restrictions and limitations being placed on the CIA and the FBI with respect to their gathering of intelligence and engaging in operations against American citizens. Many still believe that these restrictions constituted an overreaction to the uncovered abuses, while many think they did not go far enough. But whatever else one may think of Church’s work in the Senate, it is now clear that he understood far better and far earlier than almost anyone else the serious danger which the Government’s ability to eavesdrop on our conversations poses to the most basic concepts of privacy and liberty.

And even back in 1975, Church found the eavesdropping and other information-gathering capabilities of the then-relatively primitive NSA to be particularly alarming:

Thirty years ago, Senator Frank Church, the Idaho Democrat who was then chairman of the select committee on intelligence, investigated the agency and came away stunned.

"That capability at any time could be turned around on the American people," he said in 1975, "and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide."

He added that if a dictator ever took over, the N.S.A. "could enable it to impose total tyranny, and there would be no way to fight back."

And as the Government’s technological prowess has advanced by orders of magnitude since then, its power to monitor all aspects of our communications has as well:

At the time, the agency had the ability to listen to only what people said over the telephone or wrote in an occasional telegram; they had no access to private letters. But today, with people expressing their innermost thoughts in e-mail messages, exposing their medical and financial records to the Internet, and chatting constantly on cellphones, the agency virtually has the ability to get inside a person's mind.

This is why the NSA lawbreaking scandal matters so much. That the Federal Government can eavesdrop on all of our communications -- literally, every communication, in every form -- is a truly awesome power. Its potential for abuse -- serious, incomparable abuse –- is self-evident, or at least it ought to be.

Distrust of politicians and Government officials is not a hallmark of unhealthy paranoia. To the contrary, it used to be a defining American characteristic regardless of party affiliation or ideology. Our nation was borne of the premise that the most serious threat to liberty was an excessively powerful Federal Government. And because of this characteristically American distrust of government, the country’s founding was based on the promise of a severely limited Federal Government. The principal purpose of the Constitutional was to limit the extent to which the Federal Government can abridge our liberty and intrude into our lives.

The risk that the Government will abuse its ability to eavesdrop on American citizens is not a theoretical one. The 1960s and 1970s were replete with examples of such abuses, many of which Church’s Committee uncovered, and FISA itself was the by-product of a consensus among the Congress, the Executive, and the intelligence community as to what limitations and safeguards were necessary in order to allow the Government to engage in necessary surveillance while ensuring that those powers would not be abused and that the privacy of American citizens would be preserved.

That consensus, as embodied by FISA, required judicial oversight on the exercise by the Executive of these awesome powers, and it has been the framework under which numerous Administrations, both Republican and Democrat, have effectively operated in order to engage in intelligence-gathering. It is all of this that was whimsically discarded – secretly, deceitfully and deliberately – by the Bush Administration.

We are not talking about technical violations of the law which have little impact. Nor are we talking about law-breaking scandals – such as Watergate or Monica Lewinsky – which involved illegal conduct by our highest government officials originating in relatively petty acts of dishonesty.

Instead, the law which has been so blatantly and lawlessly disregarded by the Administration is the only one which serves as a safeguard against the most privacy-threatening power which the Government has – the power to monitor and invade all aspects of our communications. That is the power which the Bush Administration has claimed for itself, to wield unilaterally and with no oversight, and to expand dramatically in ways that still remain a secret to everyone except for itself.

This country recognized the grave danger which Government eavesdropping entails, and for that reason sought to ensure almost three decades ago – with Congressional enactment of FISA – that all three branches of the Government would participate in how that power was exercised, particularly when it came to the private communications of American citizens. That solution is a reflection of the premise of our country that abuses of power are best averted by diffusing power among the three branches, and it is that solution which the Bush Administration’s secret violations of FISA, and unilateral and dramatic expansion of this eavesdropping power, intentionally destroys.

Once Governments get their hands on a particular power, they don’t give it back without a huge struggle. The power which the Bush Administration has now seized for itself – the power to listen to all of our communications, without safeguards or oversight, and in complete secrecy – is a power that has limitless potential for abuse. We have arrived at the point in this scandal where we will see whether Americans will allow the Bush Administration to get away with this lawless annexation of this immense eavesdropping power, and to wield it with no oversight against American citizens. If so, it really means nothing less than the willingness on the part of Americans, in the name of fear of terrorism, to cede any vestiges of privacy to the Federal Government.

UPDATE: The day after he wrote a Washington Post Op-Ed recommending that the Government expand its warrantless surveillance to "innocent people" in America as well as suspected terrorists, Federal Court of Appeals Judge Richard Posner participated in an online chat, during which he ventured a guess regarding the willingness of Americans to cede to the Federal Government all privacy with regard to their communications:


I think it would be highly desirable to explain to the public the tradeoffs between security and privacy. Effective counterterrorism does entail some reduction in privacy. I don't think most people would mind the government's scrutinizing their conversations for information of potential intelligence value if they trusted the government not to misuse the information.

Is it really true that we're at the point where Americans would not mind if the Federal Government listens in on all of their conversations and reads all of their e-mails? And is it really possible that a majority of Americans will ever "trust the government not to misuse the information" it gets as a result of having the unfettered right to "scrutinize our conversations"?

The mere fact that we are even talking about whether our own Government should be able to invade all of our communications this way, let alone do so in secret and with no oversight, speaks volumes to how far the fear of terrorism has already taken us on the security-liberty continuum.

UPDATE II: Jane Hamsher discovers an eloquent tribute to the importance of privacy from an extremely unlikely source.

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