Biden has just signed legislation repealing the American Revolution
In the 1761 case Paxton v. Gray, a group of outraged Boston businessmen engaged lawyer James Otis to challenge the legality of "writs of assistance,” which enabled British colonial authorities to enter and search any home with no advance notice, no probable cause and no reason given, before the Superior Court of Massachusetts. Though he considered himself a loyal subject of King George III, Otis still argued against the writs of assistance in a nearly five-hour oration before a select audience in the State House in February 1761. His argument failed to win the case, but it galvanized the burgeoning American revolutionary movement. John Adams recalled nearly 50 years later:
Otis was a flame of fire; with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child independence was born. The seeds of Patriots & Heroes were then & there sown.
Now more than 250 years since James Otis argued against the writs of assistance, President Joe Biden has signed legislation reauthorizing Section 702 of the Foreign Intelligence Surveillance Act I (FISA). The Senate approved the bill last Friday (4/19/24) on a 60 to 34 vote. One of the dissenters, Senator Ron Wyden (D-OR), described Section 702 as, “one of the most dramatic and terrifying expansions of government surveillance authority in history.” Wyden said further:
If you have access to any communications, the government can force you to help it spy. That means anybody with access to a server, a wire, a cable box, a wifi router, a phone or a computer. If this provision is enacted, the government can deputize any of these people, against their will and force them in effect, to become what amounts to an agent for Big Brother.
On today’s (04/22/24) Democracy Now! host Amy Goodman interviewed investigative journalist James Bamford, who has written several book on the National Security Agency (NSA), which is responsible for global monitoring, collection, and processing of information and data for foreign and domestic intelligence and counterintelligence purposes. Bamford has also written an article for The Nation entitled, The NSA Wants Carte Blanche for Warrantless Surveillance. Bamford pointed out that FISA, under which NSA often operates, “started out fairly modestly” and was actually intended to provide judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, in the aftermath of illegal abuses of this power by the Nixon administration.
But today, NSA’s communications gathering abilities have grown to monstrous proportions. Bamford tells us about NSA’s enormous data center in Bluffdale, Utah, which is five times the size of the U.S. Capitol and it holds up to a zettabyte of information (equal to a billion terabytes or a trillion gigabytes). And with the new expansion of Section 702 of FISA, perhaps million of Americans will have no idea they’re being eavesdropped on or that their personal, private communications will be stored at the Utah data center, as well as NSA’s headquarters at Fort Meade, Maryland.
Bamford explains further that the way the law works right now, if the government wants to eavesdrop on an American in the United States, a warrant is required. However, if you call, email, text or social media message somebody outside of the United States, who’s not an American citizen, then you have really no rights at all. In an extended part 2 of his interview with Democracy Now!, Bamford explains that this means journalists like himself, who speaks to people overseas all the time, could be eavesdropped on, as well as attorneys who speak to clients, witnesses and fellow attorneys overseas. As Bamford tells us in a recent article for the Nation, he has been following the issue of NSA’s warrantless surveillance for a very long time. While in law school in 1974, he was also serving in the US Navy reserves and was sent for two weeks of active duty to an NSA listening post in Puerto Rico. Soon after arriving, Bamford discovered that the agency was illegally eavesdropping on Americans. As a result, he turned whistleblower and reported the operation to the Church Committee, a congressional investigation into the US intelligence community led by Senator Frank Church, an Idaho Democrat. It sent a team on a surprise visit and discovered that the agency had lied about halting the practice years earlier.
Years later, in December 2005, The New York Times revealed that the NSA was operating a highly secret warrantless eavesdropping program that was begun after 9/11. The next month, Bamford agreed to become a plaintiff—along with the writer Christopher Hitchens and several others—in the first lawsuit to challenge the NSA’s warrantless wiretapping program. Brought by the ACLU, it charged that the program was both illegal and unconstitutional and asked the court to order an end to it. Months later, the district court granted us summary judgment and ordered that the program be halted immediately. There are “no hereditary kings in America and no power not created by the Constitution,” ruled Judge Anna Diggs Taylor. But the ruling was later reversed following an appeal by the government—and the Supreme Court declined to review the case. In the meantime, Congress created Section 702 of the Foreign Intelligence Surveillance Act, which, in effect, legalized the Bush administration’s warrantless wiretapping program.
Near the end of his article Bamford notes that Utah Republican Senator Mike Lee warned recently: “The documented abuses under FISA should provoke outrage from anyone who values the Fourth Amendment Rights of American citizens.” The Fourth Amendment was created with the British writs of assistance James Otis fought against 250 years ago in mind. By signing a new expanded Section 702 into law, President Biden has in effect repealed part of America’s revolutionary heritage; the principle that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”