OPINION:
The spirit of Massachusetts lawyer James Otis is awakening in Congress with a vote scheduled for the House floor Wednesday to limit surveillance by the National Security Agency.
Nothing represented tyranny more to American colonists like Otis than the English government’s use of general warrants, which gave British customs agents enforcing tax laws the power to enter any home or business, without any evidence of wrongdoing, to search for and seize any goods they determined to be contraband. In 1761, Otis challenged these general warrants, calling them “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law” because they placed “the liberty of every man in the hands of every petty officer.”
John Adams later called Otis’ speech the spark that started the American Revolution. And so central to Americans’ hard-won liberty was the protection against this arbitrary government power that the framers of the Constitution wrote the Fourth Amendment to ensure that every American would from then on have their homes, papers and effects protected against unreasonable searches and seizures, absent particularized probable cause, supported by a judicial warrant.
Recent revelations about the scope of our government’s domestic intelligence collection activities raise serious questions about the state of individual liberty in the Internet era, and whether Americans can truly call themselves free when their government secretly amasses electronic dossiers that track all of their communications and associations.
The government’s suspicionless collection of Americans’ private records is as great a threat to liberty today as the general warrants were in Colonial times; for once collected, these records could be used in ways no one intended. The Internal Revenue Service targeting of Tea Party groups for extra scrutiny should serve as a wake-up call to anyone who thinks we should blindly trust the government. That is why the American Civil Liberties Union stood with Sen. Rand Paul, Kentucky Republican; Rep. Louie Gohmert, Texas Republican; Rep. Mick Mulvaney, South Carolina Republican; Rep. Thomas Massie, Kentucky Republican; Rep. Justin Amash, Michigan Republican; and constitutional lawyer Bruce Fein at a news conference in June to voice our concerns.
We all know the threat from foreign terrorists is very real. Forty-five days after the terrible events of Sept. 11, 2001, Congress rushed to give the government stunningly broad new powers under the Patriot Act and later amended the Foreign Intelligence Surveillance Act to greatly expand these powers. But no one knew the extent to which the government adopted a secret interpretation of these laws that Congress never intended. This new and unauthorized interpretation allows them to turn tools designed for use against suspected foreign terrorists and spies against hundreds of millions of innocent Americans, not involved in any wrongdoing, much less terrorism or espionage.
Section 215 of the Patriot Act allowed the government to obtain an order from the secret Foreign Intelligence Surveillance Court for “any tangible things” the government asserted were “relevant” to an authorized investigation of international terrorism or espionage. We’ve recently learned that this secret court allowed the government to obtain the records of every American’s phone calls for the last seven years under this authority, regardless of any suspicion they were related to terrorism or espionage investigation.
The author of the Patriot Act, Rep. F. James Sensenbrenner Jr., Wisconsin Republican, has disavowed this overbroad interpretation of the law. “There is no legitimate explanation for tracking the numbers, locations, times and duration of the calls of every American,” he wrote. “The collection and retention of all telephone records coming in and out of the United States is excessive and does not fall within the guidelines of Section 215.”
The government’s collection of Americans’ personal information likely extends far beyond their call records. Section 215 is not limited to telephone data; it allows the government to collect any business records held by third parties, which could include financial institutions and credit agencies. The law specifically identifies medical records, educational records, library circulation and book sales records, and tax returns and firearms sales records as types of information that can be collected under this authority, with the approval of an FBI deputy director or executive assistant director. We don’t know whether the government is also engaged in the mass collection of these types of documents as well.
Conservative groups such as the Club for Growth, Americans for Tax Reform and Taxpayers for Common Sense implored House Speaker John A. Boehner to make amendments to the defense appropriations bill. Mr. Amash and Rep. John Conyers Jr., Michigan Democrat, have introduced an amendment to the defense bill that would end the use of Section 215 to engage in this type of suspicionless bulk collection of Americans’ records. This amendment is simple and effective, returning Section 215 to the use Congress initially intended when it passed the Patriot Act by requiring that the “tangible things” collected under this authority pertain to a person who is the subject of an international terrorism or espionage investigation.
We want the government to have strong counterterrorism tools, but those tools can only be effective when they are properly used to target the foreign terrorists and spies who threaten our nation. Spying on innocent Americans must stop, and we all should stand with our Republican and Democratic leaders in resisting government overreach, just as James Otis would.
Anthony D. Romero is the executive director of the American Civil Liberties Union.
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