Spy vs. You and I
Udall, Heinrich and Pearce agree on one thing:
The NSA has gone too far.
When the editors of Time magazine put their heads together later this month to pick the publication's annual "Person of the Year," they should give serious consideration to one of the men most reviled by the US government: spy-agency contractor-turned-leaker Edward Snowden.
Keep in mind that the selection does not necessarily reflect approval, but rather an individual's impact, for good or ill, on the world that year; both Hitler and Stalin made the cover when Time still called it "Man of the Year." And there's no question that Snowden broke the trust of his bosses at the National Security Agency (the NSA, so secret it's sometimes called "No Such Agency). But the NSA, as Snowden's revelations keep bringing to light, has broken the trust of the American people, exceeding its mandate and engaging in mass domestic data collection bringing us perilously closer to Big Brother.
Snowden's leaks and the investigations following up on his disclosures have also had the remarkable effect of getting all three men who represent New Mexico's Second District in Congress on the same page — at least in pushing back against the surveillance state. Senators Tom Udall and Martin Heinrich and Rep. Steve Pearce don't often agree on much, with the two liberal Democrats far to the left of the hard-right Republican Pearce. But all three deserve credit for recognizing that there's a place in the partisan political spectrum where patriotic Americans come together to protect our basic freedoms.
Udall, Heinrich and Pearce are all original co-sponsors of the USA Freedom Act, which would roll back some of the excesses of the misbegotten Patriot Act and rein in the NSA's dragnet collection of data on innocent Americans. The bill was introduced last month in the Senate by Judiciary Committee Chairman Patrick Leahy (D-Vt.) and in the House by Rep. James Sensenbrenner (R-Wis.), chairman of the Subcommittee on Terrorism and Crime and lead author of the original Patriot Act.
Both the Bush and Obama administrations have wrongly used the Patriot Act to authorize mass collection of domestic phone data, Sensenbrenner says. "This misinterpretation of the law threatens our First, Second and Fourth Amendment rights," he argues. "Congress never intended this."
Udall, who cast a courageous post-9/11 vote in the House against the Patriot Act, agrees. "I believed the Patriot Act was hastily written and had the power to undermine the constitutional rights of our citizens," he says. "Unfortunately we now know that those concerns were justified — government surveillance under the law is far broader than the American people believe is acceptable."
Pearce spoke out even more strongly in endorsing the reform legislation, saying, "Americans are disgusted — and rightfully so — to know that the FBI and NSA have grossly misused and abused the law to collect phone records and other data. This legislation restores and narrows the Patriot Act to its original intent: to protect our communities, cities and nation from terrorists both foreign and domestic.... Americans should never have to fear that their government is spying on them. Today's legislation responds to the public outcry by putting a stop to the appalling overreach of the federal government."
The USA Freedom Act includes a number of key provisions to protect Americans' privacy and freedoms, according to Pearce. It ends "bulk collection" of Americans' records, and implements and strengthens prohibitions against other targeting of Americans. Government agents would have to show they are looking for specific suspects thought to be working for or in contact with a foreign power or engaged in activity currently under investigation.
It creates an "Office of the Special Advocate" to promote privacy interests before the Foreign Intelligence Surveillance Act (FISA) court's closed proceedings. It improves transparency and accountability by requiring the government to submit new reports on its data-gathering activities. The legislation fixes the draconian gag orders attached to FISA rulings, which prevent companies ordered to turn over data from providing basic information to their customers and the public. The goal would be to end the construction of a web of secret laws and court orders, utterly devoid of independent scrutiny.
The secret FISA court would still be able to issue subpoenas, but these would be limited to information that directly pertains to a terrorist, his associates or his activities. In the absence of an emergency or a court order, the act would prevent the government from searching through data collected on US individuals under the FISA Amendments Act. And the USA Freedom Act closes a loophole in the FISA that allows "reverse targeting" of Americans' email and Internet communications.
"The government has not made the case that this is an effective counterterrorism tool," says Leahy of the vastly expanded spying, "especially in light of the intrusion on Americans' privacy rights."
Despite these commonsense arguments, expect pushback from the nation's sprawling intelligence community. Spymasters will continue to wave the bloody flag of 9/11, a dozen years after that tragic day. They would certainly prefer a bill offered as an alternative by Sen. Dianne Feinstein (D-Calif.), which would give the NSA "explicit authority" for mass data collection. That bill would make clear that phone, email and Internet data can continue to be gathered without even a scintilla of suspicion, much less the probable cause guaranteed by the Fourth Amendment. The Feinstein bill would for the first time in history explicitly authorize dragnet domestic spying programs targeting ordinary Americans.
But wouldn't ever-greater surveillance make us safer? As Leahy notes, that case has not been made. We should perhaps remember, in any event, the words of Benjamin Franklin: "They who give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
Fortunately, our three New Mexico voices in Congress have come down squarely on the side of essential liberty. In supporting the USA Freedom Act, they join nearly 90 other bipartisan co-sponsors in the House and Senate, along with such diverse organizations as the American Civil Liberties Union and the National Rifle Association.
As the calendar page turns to 2014, let's hope that together we can take this important step forward — instead of meekly accepting a world that looks instead ever more like 1984.
Desert Exposure editor and publisher David A. Fryxell wishes
readers and advertisers happy holidays..
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