Tuesday, October 31, 2017

A bill sponsored by Sen. Rand Paul, Kentucky Republican, and Sen. Ron Wyden, Oregon Democrat, would begin to roll back warrantless encroachments on our international communications privacy authorized by section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008.  

The encroachments violate the Fourth Amendment rights of United States citizens on an industrial scale. The Paul-Wyden USA Rights Act would prohibit the violations, but with narrow exceptions for emergencies in recognition that the Bill of Rights is not a suicide pact.  

Enactment of the USA Rights Act would not only restore constitutional order. It would strengthen the security of the American people against international terrorism by diminishing the current vast collection of electronic intelligence extraneous to its detection or prevention. The staggering overbreadth of section 702 explains its inability to thwart even one international terrorist incident in the United States since its birth nine years ago.

The Fourth Amendment protects the right to be let alone — the most cherished right among civilized peoples. Every material encroachment must be justified by an overriding government interest; and, ordinarily by a warrant issued by a neutral magistrate based on probable cause to believe crime is afoot.  Section 702 flouts those twin benchmarks.

It authorizes the National Security Agency to collect, store and search all the international electronic communications of all American citizens without warrants or probable cause and for purposes far afield from international terrorism. Section 702 authorizes such a massive invasion of citizen privacy not to defeat terrorism, but simply to gather “foreign intelligence.”  The latter is boundless, including any information bearing on foreign commerce or foreign policy such as migratory bird paths or the money supply of China. The government’s interest in collecting and analyzing such foreign intelligence is trivial.  Moreover, the volume of international electronic communications collected by the NSA under section 702 guarantees that the handful the might bear on international terrorism will be missed — like searching for a needle in a haystack that is growing by leaps and bounds by the minute.  

The NSA, nevertheless, swoons over section 702 for ulterior motives. The eye-catching volume of international communications intercepted under the statute creates a becalming appearance of doing something effective to prevent another 9/11. The NSA conceals the falsity of that mirage by invoking the state secrets doctrine. It authorizes secret government whenever the executive declares that sunlight on instances in which international terrorism was frustrated might conceivably reveal intelligence sources or methods. Only an ingénue would believe such nonsense. The intelligence community leaks to the media any intelligence triumph with alacrity — even the name of the Navy Seal who led the expedition to assassinate Osama bin Laden in Abbottabad, Pakistan.

The NSA also covets section 702 to create an appearance of efficiently managing its tens of thousands of employees. Like the notorious body counts during the Vietnam War, the raw number of section 702 interceptions no matter how useless is employed by the NSA as a proxy for success against international terrorism and as a yardstick for rating intelligence community personnel. Then-Secretary of Defense Robert McNamara, upon returning from a tour of Vietnam, optimistically chirped that “every quantitative measure we have shows we are winning this war.” The NSA similarly chirps to Congress that by every quantitative measure it has it is winning the intelligence war against international terrorism to justify its spiraling multi-billion dollar budget. In fact, section 702 may be the worst military investment since the French constructed the Maginot Line.

Sens. Paul and Wyden deserve a salute for displaying the courage to challenge the NSA’s bogus alarm that to the extent section 702 is curtailed to that extent we are risking another 9/11. Their legislation is a first step toward regaining our priceless right to be let alone.

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