By THE EDITORIAL BOARD OF THE NEW YORK TIMES
Within hours of the disclosure that the federal authorities routinely
collect data on phone calls Americans make, regardless of whether they
have any bearing on a counterterrorism investigation, the Obama
administration issued the same platitude it has offered every time
President Obama has been caught overreaching in the use of his powers:
Terrorists are a real menace and you should just trust us to deal with
them because we have internal mechanisms (that we are not going to tell
you about) to make sure we do not violate your rights.
Those reassurances have never been persuasive — whether on secret
warrants to scoop up a news agency’s phone records or secret orders to
kill an American suspected of terrorism — especially coming from a
president who once promised transparency and accountability. The
administration has now lost all credibility. Mr. Obama is proving the
truism that the executive will use any power it is given and very likely
abuse it. That is one reason we have long argued that the Patriot Act,
enacted in the heat of fear after the 9/11 attacks by members of
Congress who mostly had not even read it, was reckless in its assignment
of unnecessary and overbroad surveillance powers.
Based on an article in The Guardian published Wednesday night,
we now know the Federal Bureau of Investigation and the National
Security Agency used the Patriot Act to obtain a secret warrant to
compel Verizon’s business services division to turn over data on every
single call that went through its system. We know that this particular
order was a routine extension of surveillance that has been going on for
years, and it seems very likely that it extends beyond Verizon’s
business division. There is every reason to believe the federal
government has been collecting every bit of information about every
American’s phone calls except the words actually exchanged in those
calls.
A senior administration official quoted in The Times offered the lame
observation that the information does not include the name of any
caller, as though there would be the slightest difficulty in matching
numbers to names. He said the information “has been a critical tool in
protecting the nation from terrorist threats,” because it allows the
government “to discover whether known or suspected terrorists have been
in contact with other persons who may be engaged in terrorist
activities, particularly people located inside the United States.”
That is a vital goal, but how is it served by collecting everyone’s call
data? The government can easily collect phone records (including the
actual content of those calls) on “known or suspected terrorists”
without logging every call made. In fact, the Foreign Intelligence
Surveillance Act was expanded in 2008 for that very purpose.
Essentially, the administration is saying that without any individual
suspicion of wrongdoing, the government is allowed to know who Americans
are calling every time they make a phone call, for how long they talk
and from where.
This sort of tracking can reveal a lot of personal and intimate
information about an individual. To casually permit this surveillance —
with the American public having no idea that the executive branch is now
exercising this power — fundamentally shifts power between the
individual and the state, and repudiates constitutional principles
governing search, seizure and privacy.
The defense of this practice offered by Senator Dianne Feinstein of
California, who as chairman of the Senate Intelligence Committee is
supposed to be preventing this sort of overreaching, was absurd. She
said today that the authorities need this information in case someone
might become a terrorist in the future. Senator Saxby Chambliss of
Georgia, the vice chairman of the committee, said the surveillance has
“proved meritorious, because we have gathered significant information on
bad guys and only on bad guys over the years.”
But what assurance do we have of that, especially since Ms. Feinstein
went on to say that she actually did not know how the data being
collected was used?
The senior administration official quoted in The Times said the
executive branch internally reviews surveillance programs to ensure that
they “comply with the Constitution and laws of the United States and
appropriately protect privacy and civil liberties.”
That’s no longer good enough. Mr. Obama clearly had no intention of
revealing this eavesdropping, just as he would not have acknowledged the
killing of Anwar al-Awlaki, an American citizen, had it not been
reported in the press. Even then, it took him more than a year and a
half to acknowledge the killing, and he is still keeping secret the
protocol by which he makes such decisions.
We are not questioning the legality under the Patriot Act of the court
order disclosed by The Guardian. But we strongly object to using that
power in this manner. It is the very sort of thing against which Mr.
Obama once railed, when he said in 2007 that the Bush administration’s
surveillance policy “puts forward a false choice between the liberties
we cherish and the security we provide."
Two Democrats on the Senate Intelligence Committee, Senator Ron Wyden of
Oregon and Senator Mark Udall of Colorado, have raised warnings about
the government’s overbroad interpretation of its surveillance powers.
“We believe most Americans would be stunned to learn the details of how
these secret court opinions have interpreted Section 215 of the Patriot
Act,” they wrote last year in a letter to Attorney General Eric Holder
Jr. “As we see it, there is now a significant gap between what most
Americans think the law allows and what the government secretly claims
the law allows. This is a problem, because it is impossible to have an
informed public debate about what the law should say when the public
doesn’t know what its government thinks the law says.”
On Thursday, Representative Jim Sensenbrenner, Republican of Wisconsin,
who introduced the Patriot Act in 2001, said that the National Security
Agency overstepped its bounds by issuing a secret order to collect phone
log records from millions of Americans. “As the author of the Patriot
Act, I am extremely troubled by the F.B.I.’s interpretation of this
legislation,” he said in a statement. “While I believe the Patriot Act
appropriately balanced national security concerns and civil rights, I
have always worried about potential abuses.” He added: “Seizing phone
records of millions of innocent people is excessive and un-American.”
This stunning use of the act shows, once again, why it needs to be sharply curtailed if not repealed.
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