More and more it appears that focusing on Congress to stop federal spying is a complete waste of time.
Even if Congress were to pass substantive reforms or allow provisions of the Patriot Act authorizing bulk phone surveillance to expire – and this seems highly unlikely – a recently declassified court order indicates spying would likely continue.
The order penned by Judge James Boasberg opens the door for the president to continue bulk phone surveillance even if Section 215 of the Patriot Act expires this summer.
If Congress, conversely, has not enacted legislation amending [Section 215] or extending its sunset date, the government is directed to provide a legal memorandum pursuant to rule 11(d) addressing the power of the Court to grant such authority beyond June 1, 2015.
Given this option, it seems almost certain the government would push to continue spying.
“There’s no way that the federal government is going to respond to this by submitting a legal memorandum that says it does not have the authority to do any more spying,” Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, told the National Journal.
According to Dustin Volz, spying could continue absent the Patriot Act provisions under two scenarios.
First, as the New York Times pointed out, a provision of the Patriot Act allows for indefinite continuation of any ongoing investigation at the time of expiration. Second, surveillance could continue under other existing statutes.
“Many privacy advocates believe the White House would have two routes available if it chose to continue the program, absent congressional action. Along with potentially being able to continue investigations that are ongoing despite an expiration, the administration could also rely on a “pen/trap” statute, which allows for phone tapping and has a loose standard of relevancy, akin to Section 215, and typically does not require probable cause,” Volz wrote.
An Obama administration spokesperson said there is no contingency plan to continue bulk telephone surveillance if Section 215 sunsets, but even if Obama decided not to continue spying, a future president almost certainly would, as Volz points out.
But while Obama has called for NSA reforms and urged a transition that would effectively end bulk collection, future administrations may possess the capacity to unilaterally reactivate that surveillance, said Harley Geiger, policy counsel at the Center for Democracy & Technology.
Not that Congress will likely act anyway.
Congress couldn’t even pass the weak USA Freedom Act. Only four Republicans voted for the bill, and then-minority leader Mitch McConnell voiced opposition, saying it could undermine national security. There’s simply no way the Senate will pass anything substantive to rein in NSA spying with Republicans now in the majority and Mitch running the ship, especially in light of the ISIS threat. If the USA Freedom Act would have “undermined spies’ ability to thwart terrorism,” McConnell certainly will block any robust reforms in the future.
And keep in mind, it’s not just the NSA engaging in bulk telephone surveillance. A USA Today investigation revealed the DEA collected bulk telephone information on Americans for decades.
The DEA used its data collection extensively and in ways that the NSA is now prohibited from doing. Agents gathered the records without court approval, searched them more often in a day than the spy agency does in a year and automatically linked the numbers the agency gathered to large electronic collections of investigative reports, domestic call records accumulated by its agents and intelligence data from overseas.
“Look, these people are out of control,” Tenth Amendment Center founder and executive director Michael Boldin said. “Congress couldn’t fix this if it wanted to. And it doesn’t. Spying is business as usual in Washington D.C.”
But there is another way to attack the federal surveillance state that doesn’t involved banging our heads against the marble walls on Capitol Hill.
OffNow has developed a plan that focuses on harnessing the power of state governments to thwart federal spying by refusing state cooperation and denying critical state-supplied resources such as water and power to agencies engaged in warrantless surveillance.
The feds depend on state resources and material support to continue their illegal spying. By simply refusing to cooperate, states can legitimately obstruct it. Each state that joins ratchets up the pressure on these spy agencies.
“We’re setting the foundation and raising the flag,” Boldin said. “Eventually, we can box them in and shut them down. The NSA and other federal agencies operate with state and local support. They don’t have to provide it. If D.C. won’t fix the problem, then we’ll turn it all off.”
The OffNow plan rests on the well-established anti-commandeering doctrine. Courts have repeatedly held that the federal government can’t force states to provide personnel or resources to enforce or implement federal acts and programs.
Nothing says the states have to cooperate with the federal government as it violates your rights. The OffNow plan serves as a legally solid and strategically sound alternative to depending on a feckless, do-nothing Congress.
Stop wasting time with the 202 area code. Join OffNow today.
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