The revelations by Edward Snowden have brought to light so many things that the government has kept from us and set in motion many actions that were not possible before. Thanks to reader Marcus Ranum, here are five major things we have learned about the original warrantless wiretapping program called STELLAR WIND that was started under president Bush.
- The program was broader than originally reported
- Cheney’s office wanted domestic communications
- The phone companies suggested using call records
- The scale of the snooping
- Secrecy impeded effective oversight
Another thing we have learned is that the secret FISA courts have wildly exceeded their authority, a fact that is confirmed by a former judge of that court James Robertson who says that he himself was “shocked to hear of recent changes to allow more sweeping authorisations of programmes such as the gathering of US phone records”, adding that the court has gone from examining individual applications for warrants to making broad policy without any debate, and he “called for a reform of the system to allow counter-arguments to be heard.”
Meanwhile the Electronic Privacy Information Center (EPIC) has filed a case directly with the US Supreme Court challenging the right of the FISA courts to make such policy. In their brief, they explain that the strange, secretive, and powerful nature of the FISA court requires them to take their case directly to the Supreme Court instead of working their way through the lower courts.
In this case, EPIC cannot relief from any other court other than the Supreme Court. Normally, when a court issues an unlawful order, the adversely affected parties can intervene or appeal to a higher court. However, the FISC and Foreign Intelligence Surveillance Court of Review only have jurisdiction to hear petitions by the Government or recipient of the FISC Order. Neither party to the order represents EPIC’s interests. As EPIC is not a recipient of the order, it cannot challenge it in the FISC. Other federal and state trial and appellate courts have no jurisdiction over the FISC, and therefore cannot grant relief.
Randy Barnett, a professor of constitutional law at Georgetown University, lays out the case why the government’s surveillance programs as revealed by Snowden are unconstitutional, because they violate the Fourth, Fifth, and Seventh Amendments in the Bill of Rights.
In a republican government based on popular sovereignty, the people are the principals or masters and those in government are merely their agents or servants. For the people to control their servants, however, they must know what their servants are doing.
The secrecy of these programs makes it impossible to hold elected officials and appointed bureaucrats accountable. Relying solely on internal governmental checks violates the fundamental constitutional principle that the sovereign people must be the ultimate external judge of their servants’ conduct in office. Yet such judgment and control is impossible without the information that such secret programs conceal. Had it not been for recent leaks, the American public would have no idea of the existence of these programs, and we still cannot be certain of their scope.
Congress or the courts must put a stop to these unreasonable blanket seizures of data and end the jurisdiction of the Foreign Intelligence Surveillance Court to secretly adjudicate the constitutionality of surveillance programs. Both practices constitute a present danger to popular sovereignty and the rights retained by the people.
Xeni Jardin has the statement recently issued by Snowden where he makes it clear what motivated him.
The 4th and 5th Amendments to the Constitution of my country, Article 12 of the Universal Declaration of Human Rights, and numerous statutes and treaties forbid such systems of massive, pervasive surveillance. While the US Constitution marks these programs as illegal, my government argues that secret court rulings, which the world is not permitted to see, somehow legitimize an illegal affair. These rulings simply corrupt the most basic notion of justice – that it must be seen to be done. The immoral cannot be made moral through the use of secret law.
Accordingly, I did what I believed right and began a campaign to correct this wrongdoing. I did not seek to enrich myself. I did not seek to sell US secrets. I did not partner with any foreign government to guarantee my safety. Instead, I took what I knew to the public, so what affects all of us can be discussed by all of us in the light of day, and I asked the world for justice.
That moral decision to tell the public about spying that affects all of us has been costly, but it was the right thing to do and I have no regrets.
When governments are allowed to exercise sweeping powers in secrecy, democracy itself is undermined. It is becoming harder and harder for people to argue that what Snowden did was not in the public interest.