Snowden didn't take an "oath of secrecy"

[JDPriestly]

98. The Constitution is the measure of legality in this situation.

Have you read the Church Committee Report?

http://www.intelligence.senate.gov/churchcommittee.html

I read portions of it.

The NSA's domestic spying activities violate the Constitution in a number of ways.

The violations of the Fourth Amendment under the FISA court general warrant orders are obvious.

If it were just a matter of pen registers, those who criticize Snowden might have an argument based on the Maryland decision in the late 1970s.

But, I think that case will eventually be distinguished on its facts. With today's computers and the massive number of pen registers collected, a pen register opens onto an ocean of information. The information from a large number of pen registers reveals so much about any one of us that it violates the Fourth Amendment. That program amounts to seizing the entire lives of many, many Americans.

Reading a bit of the Church Committee hearings transcripts, another more serious problem becomes apparent: someone somewhere must determine the criteria for selecting who will be put under surveillance or for picking keywords to use for searches.

The transcripts of the Church Committee hearings suggest that during the iteration of the NSA's domestic surveillance that the Committee studied, the NSA received "watchlist" recommendations from other agencies that provided names or key words, depending on what they were using, to determine who would be spied upon.

(I assume that the NSA's capacity to spy and to listen in and to collect and, most important, to analyze and publish results from the surveillance was far more limited than it is today.)

And it is in that part of the NSA's process that the gravest violations of the Constitution occur.

Because selecting targets and deciding on code words, in situations that are not linked to the investigation of specific criminal acts, involves political judgments that our government under our Constitution is not authorized to make.

It is those judgments that violate for example, the First Amendment rights of people to free speech, assembly, religion, petitioning the government, etc.

That the NSA prior to the Church Committee investigation had targeted Martin Luther King is well known. The justification for that was to query whether Dr. King was linked to or supported by foreign interests. At that time, I suppose, they were hoping to discover that Dr. King was a Communist or at least had links to Communists so that they could discredit him. Of course, what was the real reason for spying on Dr. King? He was a religious and political figure who wanted reform that the conservatives in the NSA and other agencies did not want.

Dr. King was practicing civil disobedience, as were the active people in, say the Occupy movement, but the "crimes" Dr. King committed were mostly misdemeanors of little significance.

It seems pretty clear today that the real purpose for the surveillance of Dr. King was political. Dr. King was a social, political reformer. Someone in the government was using the NSA in the hope that it could silence him and those who supported him. That is a violation of our Constitution.

The Snowden documents reveal that the NSA's recent activities are most probably no different from those of the era that the Church Committee discovered and condemned. The FISA courts have issued wiretap subpoenas broad enough to give the NSA license to look at or listen to the communications of virtually any person in America who might have some occasional reason to call or visit or e-mail out of the United States.

When we see who was being watched by the NSA in recent times, we will find out what the criteria were or are for placing people under surveillance.

Interestingly, I recall at the beginning of the Snowden "era" that the whistleblower Russell Tice said that many of the people under surveillance when he was at the NSA were attorneys, law firms. That is an intriguing detail. The attorney-client privilege is not protected in the Constitution, but is a long-standing tradition in common law. It is arguably protected by the guarantee in the Constitution of the right to counsel in a criminal trial. We shall see what the facts are on that one. It will reveal a lot about the motivations behind some of the surveillance in recent times.

Once the names of people under surveillance come out, I think that the extent of the violations of the Constitution that are necessarily and inherently present when our government places Americans under surveillance will become clear even to people who have too little understanding of how surveillance works to recognize the problems.

I have some theories about who some of the individuals might be, but you would have a different list of names. And that is the point. Who would you place under surveillance if you were making recommendations to the NSA? Who would I? We probably would not agree. In the absence of a crime, no one is qualified to make that decision.

To sum up:

In a surveillance state, which Snowden revealed ours to be, a subjective political and value judgment must be made in order to identify those to be watched or placed under surveillance. That is where the constitutional violations are most obvious.

There is no substitution for a warrant issued upon probable cause that complies to the letter with the Fourth Amendment. That Amendment protects all our other rights.

Wait till names are named. That the program violates the Constitution will probably become evident. The criteria are kept secret either because they are political or because they violate constitutional rights in other ways.

Snowden was defending the Constitution. That is a patriot's duty. Following a law that silences you is not. And how can we have a law that requires secrecy outside the military environment? It violates the First Amendment, especially if it is intended to silence political speech or criticism of our government.