the constitutional amnesia of the nsa snooping scandal

7/28/2019 The Constitutional Amnesia of the NSA Snooping Scandal

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June 10, 2013

The Constitutional Amnesia of the NSA Snooping Scandal: I've seen this all beforeand have an FBI file to show for it

BY John B. Judis

President Barack Obama has assured us that we need not be worried about the National Security Agency listening to our phone calls or monitoring our Internet use. The NSAs programs, he said, represent modest encroachments on privacy that are woth us doing to protect the country from terrorists. Count me among those who arenot reassured by Obamas statement. I know betterfrom my schoolboy knowledge of theConstitution and from my own experience during the '60s with unwarranted government surveillance.

I dont usually like to base moral judgments on what the Constitution does or doesnot allow, but in this case, it makes sense to do so. The Constitution had twovery different purposes: One was to create a functioning government; the other,forged in the wake of the American revolution, was to establish constraints thatwould prevent the abuse of state power. The First Amendment was designed to dothe latter; and so was the Fourth, which prohibits unreasonable searches and seizures. The administrations obsessive pursuit of press leaks threatens the First Amendments freedom of the press; and the NSAs surveillance violates the Fourth Amendm

ents ban on general warrantson indiscriminate searches without probable cause.

The administration claims that these actions were approved by Congress and authorized by the courts. But I am not impressed that some senators and judges approved these efforts. American history is littered with bad decisions from narrowedminded, short-sighted legislators and jurists. Ill take my stand with senators Wyden, Udall, Durbin, and Paul on these issues rather than with Senator Lindsay Graham or Roger Vinson, the judge who signed off on the NSAs surveillance and who also ruled that the Affordable Care Act was unconstitutional.

One reason that I am particularly angry about what the administration has done is that Ive seen it all before. In the wake of the Cold War, both the Federal Bureau of Investigation and Central Intelligence Agency acquired tremendous power to

investigate and deter what Washington believed was political subversion. Therewas little oversight of either agency. In the late '40s and '50s, the FBI identified and monitored domestic Communists, whom its director J. Edgar Hoover believed to be under every bed sheet, while the CIA operated abroad. Then, in the 1960s, both agencies turned their considerable power and attention to the domestic threat to official Washington posed by opponents of the Vietnam War. Some of whatthey looked at it was genuine criminal activitypeople planting bombs or kidnapping newspaper heiressesbut most of it had nothing to do with criminal activity orwith any foreign directed subversion. It simply consisted of determined dissentfrom what the Johnson and Nixon administrations were doing.

THE JOURNALIST AS A YOUNG MANA photo of the author from his FBI file.

Take my own case. I was a politically active radical and socialist during much of the '60s and the first half of the '70s. I got started in the civil rights andanti-war movements; I was a member of Students for a Democratic Society, although in northern California that didnt mean much. I was an editor of a theoreticaljournal euphemistically titled Socialist Revolution (at a time when the real hardliners described themselves as small-c communists), and I was a leader of a nationwide socialist organization called the New American Movement, which tried topick up where the less crazy parts of SDS left off.

I had my own vague vision of what a socialist America would look like, but almos



t everything that I did was directed at immediate issues like ending the VietnamWar or later impeaching Richard Nixon. I was not a bomb thrower. I advocated running candidates in elections. I taught classes on Marxs Capital and American history at a school we organized in Oakland. But during this period, I was underalmost constant surveillance by the FBI and by other intelligence or police agencies. I received regular visits from the FBI (I told them I wouldnt talk to them), and they also visited my parents and friends.

REDACTEDAnother document from the author's FBI file.As my FBI file, which I later obtained, attested, my movements were being monitored even when I didnt know it. (Most of it is, unfortunately, blacked out.) In organizing demonstrations, I encountered people who turned out to be government agents. I was pulled over by the police with guns drawn for no apparent reason. And I also received inquiries about my tax returns from the IRS even though I wasliving on about $3000 a year during much of this period. These inquiries, whichto this day may or may not have had something to do with my politics, certainlymake me sympathetic to the rightwing groups who were barraged by inquiries fromthe IRSwhether or not these inquiries were directed by higher-ups in the administration.

There were, obviously, people who were subject to far greater harassment than Iwas, and who played a much greater role in the new left. But thats what makes mycase interesting. I can pretty safely say that there was no good reason to put m

e under surveillance. After the Watergate scandal, Congress finally recognized that the FBI and CIA had widely overstepped their Constitutional bounds. In 1978,Congress passed the Foreign Intelligence Surveillance Act. It was supposed to limit agency surveillance to people whom the agency suspected, on sufficient grounds to convince a judge, were actually agents of a foreign power. The governmentagencies werent supposed to fool with anybody else. But 35 years later, we learna government agency has been empowered to monitor all of us all the time. Thatindiscriminate power, like the power that the CIA and FBI held after World War II, can be directed against domestic dissent.

Obama says that the debate over the NSAs activities is healthy for our democracy and a sign of maturity. But I think its a sign of forgetfulnessof Constitutional amneiaon the part of Obama and his Attorney General Eric Holder, not to mention the a

dministrations vaunted intelligence chiefs who want to divert attention from thesubject of the leaks, which is their own behavior, onto the leaker. I am hopingDemocrats as well as Republicans in Congress remind the administration what theConstitution was designed to do and what the original FISA legislation was meantto do, but judging from the performance of most congressional leaders so far, Iam not holding my breath.

Comments:

June 10, 2013My father worked for Dr. Strangelove. (The real people who were inspirations for

the movie.) His job was to blow up the world. As much as i did not like my dad,I don't think his heart was in the job. (Now you know why we didn't die in a nuclear holocaust.) My father was supposed to get a security clearance when he started his job. There was a problem. His mother's birth was attended by two doctors. Each thought the other signed the birth certificate. The FBI thought, "Eastern European parents, Jewish name, no birth certificate . . . what was wrong withthis picture? Took them six months of intensive investigation to conclude dad was fit to blow up the world. My wife was delivered by an Arab doctor. I expect homeland security to question our hens any day now.- skahn



June 10, 2013The constitutional amnesia point is extremely well taken as a matter of historical example and psychological insight.The conceptual template of these programs is, it turns out, reading content for as much as that distinction is vaunted. And, as I said elsewhere here, the psychological insight that animated the conclusion of the Church Commission is that power over information corrupts and absolutepower, well, all here know that drill.- basman

June 10, 2013Dude, you had the look down COLD! Had I been a 60's/70's radical I'd have been totally jealous of you - I bet you got all the less-violent Dohrn babes.- Lymon1

June 10, 2013It interests me to see if the Supreme Court addresses the NSA spying and how itis resolved. On the one hand, the Supreme Court held that the Fourth Amendment does not apply in the IRS tax audit context because the government is investigating to see if people are in compliance or to obtain assurances that the law is not being violated. Further, the search and seizure tax laws which allowed Britishrevenue agents to search coloinial vessels for violations of import duites without a warrant were enacted by the states after the American Revolution. The ability to search buildings without a warrant was the subject of controversy between

the Britisha and the colonies. the British had claimed that a warrant was not required for searches of buildings. The colonies objected to that claim. After the American Revolution, under the tax laws, searches of buildings required a warrant preceded by information under oath. In the early 1760's, there was a practice in Britain of warrants being issued by the Secretary of State permitting agents to hunt down, search and arrest individuals because seditious literature had been published, but the warrants left the choice as to where to search and whom to arrest up to the agents. British courts held that such warrants were not a defense to trespass actions, the concern being, as Scalia pointed out in the recentDNA cases that searches and arrests were then conducted based upon warrants that were not premised on the provision of information as to the prior conduct of the individual being searched and arrested. So, sometimes when the government hasno prior information to justify a search, there is a right not to be searched a

nd sometimes there isn't. I contend that the word "unreasonable" is the dividingline, but there is no case law to support that.- Nusholtz

June 10, 2013I have an FBI file (from the mid-Sixties to the mid-Seventies I was a Viet Nam war protester). I was also associated with a 'revolutionary' union movement (DRUM) in Detroit, where I came in contact with communists (my best friend was a Leninist who carried a gun to 'protect' himself from the Trotskyites). I was 'secretly' photographed (sometimes a camera pointed at you by a policeman is pretty obvious) and written up in both capacities. But I wasn't afraid until Kent State in1970. When Nixon said that those students wouldn't have been shot 'if they hadn

't been there,' I was struck with a wave of paranoia. I was certain that Nixon was coming to get me, even though I was near the bottom of his two-million-persons-strong enemies list. I thought of leaving Detroit or even the country. But I didn't, because I had some experience in actually living a politically restrictedlife, when I was in Air Force Intelligence in Berlin in the early Sixties. I was inside Communist territory under the martial law of the Allies, surrounded byRussian and East German combat planes (the Allies were not permitted to have combat planes in Berlin). During the Berlin Crisis (after the Wall went up in 1961)and the Cuban Missile Crisis in the fall of 1962, I learned to tamp my paranoiadown. It was the only way to survive emotionally. I also acquired a KGB file wh



ile in Berlin. Our laundry lady at Tempelhof Airport was eventually exposed as an East German spy. She was having an affair with our operations officer (she waspumping him in more ways than one), and she was funneling information about usthrough East Germany to Moscow. Later, I was under martial law twice more, in Detroit in 1967 during the riots (Mitt's dad, George, was the one who asked for federal troops) and at the Democratic Convention in Chicago in 1968. Paranoia doesn't strike me deep anymore. I'm not all that concerned about the current brouhaha about snooping. Despite my political background, the only time I'm aware of that the government 'spied' on me was when the FBI contacted my relatives and friends for a Top Secret background check for Air Force Intelligence. It's all a matter of degree, and as Eldridge Cleaver (whom I voted for when he was on the ballot in Michigan) once said, 'In America, oppression is like being pressed betweentwo satin sheets.' That's still generally true. I now see my political activities in the Sixties and Seventies as a bit silly, even though I know I made a small difference in helping to end the Viet Nam War. Technology today has muted anyserious discussion about privacy and the Fourth Amendment. NSA satellites are recording every phone conversation in the world. We should still be concerned about privacy, but it's a losing fight. And, yes, we still need people like Mr. Judis to stand up to power. Sometimes losing fights are the best kind.- magboy47

June 10, 2013John, you have really hit the nail on the head. Even though I was at time on the

other side of the political spectrum, having served as a medical corpsman in Vietnam and doing the last two years of my enlistment at Edwards AFB in the MojaveDesert (June, 1968 - March, 1970). As Yogi Berra would say, "It's deja vu all over again." I drove many times on weekends to San Franciso and even went to witness the confrontation between the CHP police and students during the rioting atPeople's Park in Berkeley. It finally dawned on me during that time what a terrible decision I had made to serve in Vietnam even as a non-combatant and how people were being hunted down like enemies of the state. I changed a great deal andremain a liberal to this day. So, thank you for your personal story and your honesty, and I'm glad the FBI and the IRS never busted you as a young man. You areone of the few writers with whom I can identify with on TNR and support your impression this spy scandal is a blast from the past as the DJs used to say on theradio.

- rewiredhogdog

June 10, 2013John - you make a pretty fabulous hippy.- WandreyCer

June 10, 2013I don't disagree with a single word and... The U.S. Security State exists because the Bush II administration flagrantly dropped the ball on the al-Qaeda terrorthreat, then completely and totally overreacted. Obama, who many (me included!)had hoped would return us to the status quo ante, instead doubled down. That he

did so is really no great surprise when you think about it. Had a single significant terrorist act occurred on his watch he would have been crucified by the same Republicans who want to impeach him for Benghaz, an event that pales in comparison to any of the mass shootings that have occurred in the US in the past year,much less 9/11i! (Ditto, I'm inclined to think that it's partly technocratic oneupsmanship on Obama's part, i.e., "I can wage the war on terror better than that Dumb Ass did!") Whatever way you look at it: It's horrendous, it's disgusting,it's completely contrary to everything America stands for...and it's quite possibly permanent. It's also a lot like Nixon and China. There was no way the Democrats, having "lost China" in 1949, could normalize relations with the world's la



rgest Communist dictatorship. It took Nixon, who was one of those who made his career demonizing supposedly pinkish "China Hands" at the State Department and who had everything to gain and nothing to lose, to break the stalemate. My guess is that if the Security State is ever dismantled it will be under similar circumstances. Collective amnesia is working on many different levels. Richard Jasper Oneonta, NY- arpeejay

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the constitutional amnesia of the nsa snooping scandal

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