NSA Surveillance Needs Investigation

August 4, 2006 by Mark Schlosberg, The San Francisco Daily Journal

It has been nearly five years since the tragic events of Sept. 11 and in the intervening years; government power has greatly expanded, significantly impacting the rights of ordinary Americans. Particularly in the area of government surveillance, federal powers have grown, largely facilitated by a Congress that has been unwilling to sufficiently exercise its oversight authority. Government surveillance programs have grown to such a degree that they are beginning to resemble the array of intrusive initiatives of the 1960s.

Then, numerous federal agencies were engaged in surveillance of ordinary Americans to varying degrees. As documented by the Church Committee, which in the mid-1970s investigated the abuses of the previous two decades, the U.S. Army Intelligence amassing files on more than 100,000 Americans, and the FBI through its COINTELPRO Program monitoring and disrupting various political organizations, including an intensive campaign to “neutralize Martin Luther King Jr. as an effective civil rights leader.”

The Church Committee issued a number of recommendations, and the congressional investigation led to significant reforms. The Foreign Intelligence Surveillance Act was adopted to regulate certain surveillance activities, and the U.S. attorney general promulgated guidelines limiting the FBI’s ability to monitor political activists engaging in First Amendment activity.

While some reforms were implemented, the Church Committee provided a warning to future generations, recognizing that “[t]he crescendo of improper intelligence activity in the latter part of the 1960s and the early 1970s shows what we must watch out for: In time of crisis, the Government will exercise its power to conduct domestic intelligence activities to the fullest extent. The distinction between legal dissent and criminal conduct is easily forgotten.”

Sept. 11 constituted just the type of crisis the Church Committee warned about. Government power is threatening our freedoms.

While initiatives instituted shortly after Sept. 11, such as the USA Patriot Act’s grant of authority to federal agents to obtain library and financial records without meaningful judicial review and the revision of the attorney general’s guidelines to allow monitoring of open political and religious meetings have been widely reported by the press. During the last eight months, we have learned more about their application and several more ominous programs.

In December, we learned — following a report by NBC News — that the Department of Defense collected information on dozens of anti-war demonstrations and included them in an anti-terrorism database. Among the protests were demonstrations held on the UC Berkeley and UC Santa Cruz campuses. This drew outcry from several members of Congress and the American Civil Liberties Union of Northern California, which filed Freedom of Information Act requests seeking information related to the program. While the Defense Department now admits the protests were tracked in error; however, from the documents we have received thus far, it appears that the department has yet to specifically direct members not to file reports on anti-war demonstrations.

The same month, the ACLU national office obtained documents from the FBI, indicating that federal agents monitored anti-war activity in Pittsburgh, in many ways confirming the effect of the deregulation instituted by then-Attorney General John Ashcroft. One document reported on the “results of investigation of Pittsburgh anti-war activity.”

The activities at issue included leafleting conducted by the Thomas Merton Center for Peace and Justice, which the FBI described as “a left-wing organization advocating, among many political causes, pacifism.”

Also in December, The New York Times reported that the National Security Agency had been eavesdropping on telephone calls without judicial authorization and in violation of the Foreign Intelligence Surveillance Act. Several months later, in May, USA Today revealed that the NSA had obtained call records of millions of innocent Americans from the major phone companies — including both AT&T and Verizon in California — giving the agency information about who has been talking with whom and when. Again, without a court order or oversight.

These programs have all been either exposed or extensively covered in the press with the news media serving an important public function in highlighting threats to civil liberties. Unfortunately, these efforts have drawn condemnation from the president and his staff as well as some members of Congress.

When The New York Times reported in June that the CIA has been accessing a database containing millions of banking transactions without notification or judicial review, President Bush condemned the disclosure as “disgraceful.” The database raises significant privacy concerns, but rather than examining the program, Peter King, the chair of the House Homeland Security Committee, called for a criminal investigation of The Times. As in the 1960s, the distinction between legal dissent and criminal conduct is being blurred.

Certainly some progress has been made over the last couple of years in beginning to roll back some of the most onerous provisions of federal policy — the newly reauthorized USA Patriot Act, for example, now explicitly allows librarians to consult with an attorney in determining how to respond to demands for records under Section 215 of the law. And, other more Draconian programs such as Total Information Awareness, a massive datamining program, have been halted.

Still, nearly five years after Sept. 11, threats to civil liberties have never been greater. While some in Congress are beginning to ask more questions and are attempting to provide some measure of accountability, there still has not been any independent investigation into several of the aforementioned programs including the NSA eavesdropping and collecting phone records. Even with the passage of time, the warnings of the Church Committee about government overreach in times of crisis rings true.

While government actions of the last few years have significantly eroded privacy rights, there is cause for hope. Unlike during the 1960s, where the public largely learned about the government surveillance programs after the fact, there has been vigorous public opposition and outcry on a continuing basis by ordinary Americans in response to many of the current programs as they have been proposed and rolled out. The news media, in many cases, is the first to inform the public on the government’s surveillance programs and is starting to aggressively report on the abuses, fueling this important public debate. And, in increasing numbers, members of Congress are calling for expanded oversight.

The rights to privacy and free speech and expression have never been more important, with the country so divided over the war in Iraq and a wide array of other political issues. The first step should be an independent investigation of the NSA surveillance programs — to begin to rein in a federal government that has trampled on the constitutional rights of millions of Americans. Congress must not legislate prior to this investigation, and a proposed bill written by Sen. Arlen Specter, R-Pa., in consultation with Vice President Dick Cheney that would retroactively legalize the NSA’s eavesdropping program must be rejected.

Mark Schlosberg is police practices policy director of the ACLU of Northern California.