Guest post: Jim Rubens, possible Republican US Senatorial candidate - "NSA Constitutional Breach" - Granite Grok

Guest post: Jim Rubens, possible Republican US Senatorial candidate – “NSA Constitutional Breach”

NSA Constitutional Breach

National Intelligence Director James Clapper has publicly acknowledged that the National Security Agency collects and stores private communications data (excepting content) from Verizon and other carriers involving hundreds of millions of ordinary American citizens. This has been ongoing since at least 2006.

Whistleblower and former AT&T technician Mark Klein has provided unrebutted evidence forming a key basis for litigation filed in 2008 charging that NSA has installed a “listening room” at AT&T’s San Francisco data communications hub (and likely a dozen or more additional such hubs around the US) from which NSA can route all phone and Internet traffic in realtime to its facilities for storage and data mining. This July, the court finally rejected the Obama Administration’s “state secrets” defense, ruling that the case may be litigated under the procedures of the Foreign Intelligence Surveillance Act.

For the likely purpose of storing and mining this massive stream of past and realtime data, NSA is building a $2 billion data warehouse north of Provo, Utah, slated for completion later this year. Indicating its immensity, this facility will consume 65 megawatts of power and 1.7 million gallons of cooling water per day.

Constitutional breach

The Fourth Amendment to the US Constitution reads:

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.

The framers included this provision in our Bill of Rights because British soldiers had been routinely issuing “general warrants,” allowing groundless searches of Colonists private homes.

In defense of what is plainly a national data dragnet allowing warrantless seizure of the private communications and communications records of millions of innocent Americans, James Clapper asks us to trust the government, acknowledging that NSA will indeed gather and store this data, but will not “query” it unless parties to these communications are terrorism suspects. Unfortunately, the suspicion threshold is so low that a search can arise solely because an email sent or received by an innocent American includes a red flag word or phrase. And this search can extend to persons linked to persons linked to that sender and recipient, i.e., through two degrees of separation.

We cannot trust that this data will not be abused, because NSA grants access by tens of thousands of government employees and private contractors.

Authority to gather, store, and search this data may be granted by one of the 11 judges on the Foreign Intelligence Surveillance Court. The 11 current members of the FISA court are federal district court judges appointed for seven year terms exclusively by Supreme Court Chief Justice John Roberts without Senate hearings or confirmation votes. FISA court briefings, hearings, and rulings – one of which was leaked to the media by Edward Snowden — are made in secret, predicated on a body of secret case law, and largely unavailable for review by the public. Only attorneys for the government agencies are allowed to appear before the FISA court, meaning that only one side of any particular case is ever presented to the presiding judge. According to a Wall Street Journal investigation, over its entire 33 year existence through 2012, the FISA court has granted 33,942 warrants and issued only 11 denials.

Furthermore, in recent decades government has abused its power by breaching the First Amendment rights of law-abiding citizens to associate and communicate privately and anonymously without government interference.

  • President Nixon used warrantless wiretaps on his political enemies to influence the 1972 election.
  • In the early 1970s, the FBI and the CIA used warrantless wiretaps and electronic surveillance to monitor and suppress unpopular political groups such as civil rights, antiwar, union, and media organizations.
  • Over the past few years, the IRS has used its power to selectively investigate the tax status of politically conservative and liberal organizations, going as far as forbidding some church organizations from engaging in specific religious practices, such as sermonizing against war.

Liberty versus safety

Slightly altered, this quote is inscribed on a plaque in the stairwell at the base of the Statue of Liberty:

They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety — Benjamin Franklin, 1755.

William Binney is a former NSA mathematician and code breaker credited with designing NSA’s worldwide electronic spy network that will reach full fruition with completion of the Utah data facility. Now turned whistleblower, Binney says that America is now just inches from becoming “a turnkey totalitarian state“.

Should I be elected to the U.S. Senate, I will speak out unabashedly against and work to defund and bar such constitutional breaches.

Jim Rubens is a serial entrepreneur, former two term NH State Senator, ran for NH Governor in 1998, and may seek the Republican nomination to US Senate and unseat Democrat Jeanne Shaheen.  He was on this week’s GrokTALK!

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