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Lawsuit Challenges Constitutionality Over Domestic NSA Spying

February 17th, 2014 1 comment

Feb. 2, 2014 original publish date
May 7, 2015 UPDATE: U.S. Court of Appeals Rules NSA’s Bulk Collection of Telephone Metadata is ILLEGAL

[NSA Graphic Credit, REUTERS/Kai Pfaffenbach (Germany).]

[NSA Graphic Credit, REUTERS/Kai Pfaffenbach (Germany).]

Lawsuit Challenges Constitutionality Over Domestic NSA Spying

original article written by Net Advisor

WASHINGTON DC. Last week, Senator Rand Paul and Freedom Works jointly filed an initial 16-page lawsuit (PDF) against Defendants President Barack Obama, James Clapper (DNI), Keith Alexander (NSA), James Comey Jr. (FBI) and others. The lawsuit was filed in the District of Columbia.

Any U.S. citizen who used a telephone, including a cell phone at any time from 2006 to date can join the lawsuit. At the time the lawsuit was filed, the Wall Street Journal reported 386,000 signatures were collected. These signatures could become, if not already initial Plaintiffs in the Class-Action lawsuit. This action could be the largest or one of the largest lawsuits brought in U.S. history depending on the number of parties that join the lawsuit.

Senator Paul is asking the Court to answer whether a single warrant can legally provide blanket surveillance on phone users in the USA.

“The question the court must answer is whether a single warrant should empower the government to conduct mass surveillance against phone users, the senator said.”

— Source: USA Today (HTML PDF)

The Kentucky Senator also said the lawsuit isn’t meant to be in disrespect of anyone, that he is taking this legal action “out of respect for the Constitution.”

Shortly after 9-11, the Patriot Act seemed to allow broad-based domestic spying on Americans, even though no Americans were involved in the 9-11 terrorist attacks.

[1] Bush Telephone Wiretapping – “Unconstitutional.”

In November 2006, the American Association of University Professors (AAUP.org) filed an amicus brief (PDF) in support of the ACLU‘s case of challenging the warrantless wiretapping by the Bush Administration, in re: ACLU v. NSA 493 F.3d 644 (6th Cir. 2007) (PDF, 75 pps).

A Federal Judge ruled that the wiretapping on U.S. citizens without a warrant by the Bush Administration was unconstitutional.

“It was never the intent of the framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights…

(further) “…Our constitution was drafted by founders and ratified by a people who still held in vivid memory the image of King George III and his General Warrants…. These secret authorization orders must … fall.”

— U.S. District Judge Anna Diggs Taylor wrote in her legal opinion [Sources: Washington Post and Electronic Frontier Foundation (EFF.org)].

After the ruling, leading Democrats including then U.S. Senate Minority Leader Harry Reid (D-Nev.) said the ruling ‘was a welcome check on the Bush administration.’ Senator John Kerry (D-Mass.) said after the ruling that “no one is above the law.”

Some Republicans chastised the ruling coming from a “liberal judge.” Regardless of any politics, District Judge Taylor was absolutely correct in her 2006 ruling. The U.S. Constitution does not play political favorites. If the law was violated, the law was violated. Regardless of outside political or other motivations, the U.S. Constitution must always be upheld regardless what party is in power.

[2] 2008: Government Makes Domestic Spying Legal?

In July 2008, under a Democrat-controlled Congress [point 8], Republican President George W. Bush signed into law a new bill [H.R. 6304] that was supposed to over-hall domestic spying on Americans. The bill was also supported by then Senator Barack Obama (D-Ill) and granted total legal immunity to all the telecommunications companies that were effectively colluding with the federal government in proving information about their subscribers, even if there was no crime or suspected crime involved.

[3] Another Judge Delivers a Blow to Bush Over Wiretapping.

Two years later, in 2010 there was a new case of illegal – warrantless wiretapping by the Bush Administration. The incident occurred in San Francisco, California where an Islamic foundation was under government surveillance. The District Judge found the warrantless wiretapping unlawful and cited his concern about the Executive Branch of Government (the U.S. Presidency) abusing its power and authority:

That “theory of unfettered executive-branch discretion” holds an “obvious potential for governmental abuse and overreaching…”

— Chief U.S. District Judge Vaugh Walker said. (Source: SFGate, April 1, 2010 PDF.)

Eight Democrats including then House Minority Leader, Nancy Pelosi (D-Cal.) to Senator John Kerry (D-Mass.) rejoiced, and deemed it a ruling against Bush.

Actually the ruling wasn’t against Bush; the ruling was against the use of warrantless wiretapping. The law doesn’t specify that because one political party was acting above the law, does not give permission for another political party to do the same thing (or worse). Laws are intended to be equally and universally applied.

Richard M. Nixon leaves the White House for the last time, one day after his State of the Union Address announcing his resignation (Photo: August 9, 1974. Photo credit: unknown or public domain. Please advise for credit).

Richard M. Nixon leaves the White House for the last time, one day after his State of the Union Address announcing his resignation (Photo: August 9, 1974. Photo credit: unknown or public domain. Please advise for credit).

[4] A President Resigns For Abuse of Power.

On August 9, 1974, then U.S. Republican President Richard Milhous Nixon abruptly resigned the Office of the Presidency after Nixon was plagued in key scandals. Nixon abused the Executive Branch of government to spy on his political enemies, and used the power of the Justice Department (FBI), the CIA and the IRS to harass and go after his political opponents.

The Watergate Scandal (brief video summary & brief story text) included the break-in of the Democratic National Committee (DNC) headquarters. The Nixon Administration tried to bug the DNC headquarters in advance of the upcoming election. The burglars were caught and were tied to the Nixon re-election campaign. Nixon lied and tried to cover up the scandal.

Nixon was facing impeachment for his illegal actions, but Vice President Ford who assumed office after Nixon’s resignation, agreed to pardon Nixon. Ford lost his bid for the next presidential term over his pardoning of Nixon.

We don’t hear of these break-in bugging scandals today because all of this spying can easily be done via computer hacking, gaining access to telecom, cable systems, Internet providers, cell phone, apps, and tapping into web-based cameras.

[5] Obama Was For Liberty Before He Was Against It?

In 2008, then Senator Obama chastised President Bush for bringing more power to the Executive Branch in reference to domestic spying. Senator Obama said he would have his Attorney General review all of Bush’s Executive Orders, and reverse any that violated civil liberties “with a stroke of a pen.” Senator Obama also said he “taught Constitutional law for 10 years” and takes the Constitution “very seriously” (Source: Senator Barack Obama, 1st video below).

Senator Barack Obama campaigned AGAINST granting total immunity to the telecom companies who colluded with the government’s domestic spying program.

“To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.”

— Obama spokesman Bill Burton, Oct. 24, 2007 (Source: Town Hall).

In June 2008, Senator Obama reiterated his stance against illegal warrantless wiretapping on innocent Americans. The 2008 Obama Presidential campaign released the following statement that said in part:

“There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.

That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans.

I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past.”

— 2008 Obama Presidential campaign statement (Source: Wired, June 20, 2008).

Less than one month later, Senator Obama flip-flopped his position, and now said he supports the domestic spying bill that he promised to filibuster a year earlier. In other words, Obama was for liberty before he was against it.

By 2013, now President Obama mislead Americans again and now says, we’ll “there’s some tradeoffs involved” when it comes to liberty and privacy, which include some “minor encroachments.”

Let’s compare Senator Obama and President’s Obama’s words in 2008 and 2013 in this brief video:

Blanket domestic spying is a direct attack on the Fourth Amendment. Americans are surrendering virtually all personal privacy and we have no more security than we had before 9-11 (2001) or at any time in history.

[6] What Law?

In 2009, I talked about the PROPOSED law to spy on private (computer) networks. Apparently no new law was needed. The Obama Administration just decided how things were going to be conducted, and law was just an obstruction to achieve a goal. President Obama did recently say that he could do whatever he wants.

Most major media gave the President a bye and said he was using a little tongue-in-cheek.

As one who did research in college focusing in the area of social and behavioral psychology, some might argue Obama’s comment was a Freudian Slip.

According to Freud, these errors reveal an unconscious thought, belief or wish. In other words, based on Freud’s theory, Freud might argue that President Obama really believes he can do whatever he wants. Presidents do have quite a bit of power. It’s when that power goes beyond the law, and beyond the framework of the U.S. Constitution is where it can increase risks to a nation and its people.

That risk can include losing our Constitutional Republic and move toward a Monarch, Kingdom, or other Centralized Government without proper checks and balances.

[7] Obama’s Blanket Spying on Everything – is “Likely” Unconstitutional.

In 2013, a Federal Judge ruled in Klayman v. Obama (PDF 68 pps) that the Obama Administration’s wiretapping on U.S. citizens without a warrant was “likely unconstitutional.” The Obama Administration not only expanded Bush’s domestic spying on innocent Americans, he put the program on crack and steroids.

Somehow there seems to be debate over a law that has been effective since 1792. Instead of posting endless pages of case law, our Forefathers simply wrote the law in one sentence.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

— FOURTH AMENDMENT, United States Constitution (Source: Cornell University Law School)

Somehow the U.S. Constitution got set aside and largely ignored for some “greater good” purpose. This is much like Consequentialism, where some believe, “the ends justify the means.” One can also associate the greater good theory in several “ism’s” – SocialismCollectivism and Communism. All are closely related. In each case the individual and their liberty is not as important (or just not important) compared to the collective (greater) good.

This line of thinking is in sharp contrast to the Founding Fathers of the United States who sought to escape the tyrannical government of King George III, and promote freedom and individual liberty.

The political progressive organization, ThinkProgress.org said in 2004 that then U.S. Attorney General John Ashcroft under President Bush refused to sign onto warrantless wiretapping due to his concerns over “legality and oversight.”

According to ThinkProgress, Ashcroft was “pushed out” of the Bush Administration for not signing off on warrantless wiretapping. Ashcroft was replaced by Alberto Gonzales, who supported the warrantless wiretapping initiative.

We have not seen any complaints from ThinkProgress.org over the Obama Administration’s massive domestic spy-program.

Parody of expanded NSA blanket domestic surveillance of American citizens under the Obama Administration. (Author of parody, public domain, or no credit claimed).

Parody of expanded NSA blanket domestic surveillance of American citizens under the Obama Administration. (Author of parody, public domain, or no credit claimed).

[8] i Spy.

The NSA has been accused of spying on members of Congress, judges and lawyers (Report).

Despite misinformation to the contrary, the NSA collects, reads and analyzes emails and text messages. The ACLU said in May, 2013 most people would never know that their emails are being read or their location is being tracked.

“Any iMessages sent to a non-Apple phone user turn into a text message, which are very readable to the government. And, remember, any non-FaceTime phone calls made with any American carrier get sent in the form of very useful metadata to the NSA.

— Source: The Atlantic

White House Press Secretary, James Carney denied the U.S. is reading emails, but contrary information says otherwise. The NSA also monitors social media activity, your browser history, and virtually all (75%) of Internet activity.

President Barack Obama has apparently bypassed Congress and allowed the NSA to spy on the bank accounts and credit card transactions on law-biding Americans who are NOT accused of any wrongdoing, let alone suspects of any terrorist activity. We are told that the intent is to spy on foreign transactions, but Obama has apparently curtailed foreign spying and increased domestic U.S. spying.

President Obama said he halted spying on foreign interests such as the IMF and the World Bank. This is actually what the NSA is supported to do — spy on FOREIGN interests including EU politicians, which Mr. Obama approved of. President Obama also allegedly told the NSA to go easy on spying on the United Nations.

A report by the Washington Post said the NSA is using Google “cookies” to track and hack computers. In December 2013, Reuters reported that RSA, a company now owned by EMC Software, intentionally made faulty software allowing the NSA to have a backdoor into computer security. RSA was reportedly paid $10 Million for this secret contract.

Gov. Malware Allegedly Installed in Laptops (Graphic: NSA. Source: Der Spiegal - German media)

Gov. Malware Allegedly Installed in Laptops (Graphic: NSA. Source: Der Spiegal – German media)

[9] Ordering a Computer On-Line? It May Have Government Spyware.

In December 2013, Forbes reported that the CIA, FBI and NSA have been intercepting laptops bought on-line and installing super spyware.

“…the NSA, in conjunction with the CIA and FBI, has begun intercepting laptops purchased online in order to install (quite literal) spyware and even hardware on the machines. The NSA terms this “interdiction.” Agents divert shipments to secret warehouses, carefully open the packages, install the software and/or hardware, and send them on their way.”

— Source: Forbes, Dec. 29, 2013

Based on what I know about security software, and a past conversation with high-level federal law-enforcement, it is not likely that your retail store anti-virus or anti-spyware will detect this level of spyware. The government knows how to break through all the retail security programs on your computer if they want to because the software makers gave them the codes.

"An NSA slide on the 'Prefer' program reveals the program collected an average of 194 million text messages a day in April 2011" (Photo Credit & Source: The Guardian.UK).

“An NSA slide on the ‘Prefer’ program reveals the program collected an average of 194 million text messages a day in April 2011” (Photo Credit & Source: The Guardian.UK).

[10] NSA Admits to Misleading Congress.

In 2013, the head of the NSA testified that their spying program halted some 54 plots against American and foreign targets. Shortly thereafter the NSA Director who is personally named in the Rand Paul v Barack Obama lawsuit, said that he (NSA Director) lied before Congress about his claims of stopping 54 terror-related plots.

Less than six months later, NSA Director claimed that the agency is spying on fewer than 60 Americans world-wide. This also seems to be another deception based on the amount of data being collected by the NSA.

Reports also show that the NSA is spying on monitoring video games and cell phone user apps such as Angry Birds. Angry Birds by Rovio Entertainment Ltd. Modified parody graphic by respective owner: unknown. Please advise for credit.

Reports also show that the NSA is monitoring video games and cell phone user apps such as Angry Birds. Angry Birds by Rovio Entertainment Ltd. Modified parody graphic by respective owner: unknown. Please advise for credit.

[11] Obama’s NSA Tracking Just About Everything?

Reports show that the NSA is collecting Internet traffic, at least 800,000 banking and credit card transactions, monitoring video games, collecting and analyzing telephone, cell phone, and cell phone location tracking. Reports also show that the NSA is spying on cell phone user apps such as Angry Birds, and collect nearly 200 million text messages per day. That seems to be just a few more than spying on ’60 Americans world-wide.’ All of this data collecting is apparently being done with little to no court supervision.

“Recent evidence suggests that the NSA has been focusing on widespread monitoring of e-mail messages and text messages, recording of Web browsing, and other forms of electronic data-mining, all done without court supervision.”

— Source: CNET

In 2012, a U.S. Federal Appeals Court ruled (PDF) that the Google-NSA spy arrangement that the NSA refuses to confirm or deny that existence, was able to maintain its secrecy. In January 2014, the NSA refused to answer (PDF) whether it was spying on members of Congress. Senator Rand Paul has been seeking answers to allegations that the NSA was spying on the Pope discussed in this November 1, 2013 letter.

Former NSA employee Edward Snowden released most of the recent documents that have raised domestic privacy concerns. Some have called Snowden a ‘traitor’, who performed acts of ‘treason,’ but others have viewed him as a Whistle-blower. Meanwhile, Snowden may be a candidate for the Nobel Peace Prize.

[12] Lawsuits.

The NSA has been the target of many lawsuits. For example, in recent years there was Jewel v. NSA, First Unitarian Church of Los Angeles v. NSA and ACLU v. NSA (see ACLU website and EFF.org for more). Last year the NSA and 12 alleged collaborating companies were hit with a $20 Billion class-action lawsuit over unlawful domestic spying of U.S. citizens. As of post date that $20 billion class-action case is still pending.

[13] Intelligence Abuses Are Common.

These kinds of intelligence abuses are not uncommon. When in college doing research for a senior project report on U.S. Intelligence and International Terrorism I came across a little book written in the 1960’s discussing the abuses of the intelligence agencies. Oddly enough, when I tried to check out that book from the University library again, it and one other related book was “no longer available.”

On the other side of the coin, I did note that the U.S. does need spy agencies in my college research report, and that funding was lacking in the late 1970’s under the Carter Administration. President Reagan doubled that funding, but today that probably does not seem to be a problem.

[14] Surveillance Didn’t Prevent Known Domestic Attacks.

All this massive domestic surveillance did not prevent the Boston Marathon terrorist bombings, where a non-U.S. citizen, Tamerlan Tsarnaev and his brother Dzhokhar Tsarnaev, who was recently granted U.S. citizenship killed three people and wounded approximately 180 others.

Massive domestic surveillance did not prevent Islamic radical Umar Farouk Abdulmutallab – the “Underwear Bomber;” who in 2009 managed to get on board Northwest Fight 253 on Christmas Day with an explosive device in his underwear. It was his father who contacted the U.S. Embassy in Nigeria about the radicalization of his son, not U.S. intelligence. Fortunately the Christmas Day attack failed. The explosive device partially went off in the terrorist’s pants. Abdulmutallab plead guilty to the crimes.

Massive surveillance also did not prevent the New York Times Square bombing attempts in 2008 (unidentified person) or the 2010 attack by Islamist Faisal Shahzad.

Massive surveillance also did not prevent Islamist Abdulhakim Muhammed who claimed a “jihadi attack” in 2009 that killed two U.S. soldiers in Little Rock, Arkansas.

Massive surveillance also did not prevent now former U.S. military psychiatrist, Islamist Nidal Malik Hasan who, in 2009 admitted killing 13, and injured 32 at Fort Hood.

Massive surveillance did not prevent various pipe bomb attacks on U.S. soil in for example Jacksonville, Florida (2010), and Spokane, Washington (2011) (additional info here and here).

Rand Paul’s lawsuit brings the debate of how far of removing civil liberties do we go in order to think we are somehow safe? It also appears that the people who make the rules, have a history of abusing those rules, regardless of political party or the law. Based on the data discovered in this report, the only people who are losing their liberties and seem to be deemed as potential “terrorists,” are U.S. law-biding citizens.

The NSA and intelligence agencies do have value and a purpose. At this time, the data seems to show that their reach under the control of political ambitions are going beyond what our Constitutional law provides.

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Categories: Privacy