[Author]FROM THE EDITOR:

Many of you readers have probably heard or read about the secret government behind the United States government. The following article, authored by David Knight, brings to light some of the abuses of power perpetrated by the government, the surveillance state, and how the secret government works, which the people live under – without knowing it.[/Author]

A dragnet warrant for “certain tangible things” by a judge who operates in secret and whose decisions are “Top Secret”

by David Knight

Help, master, help! here’s a fish hangs in the net, like a poor man’s right in the law. (Pericles — Shakespeare)

— Is there a shadow government with a secret set of laws that have nothing to do with statutory law, much less the Constitution?

Revelations about the secretive FISA “court” (FISC) have been trickling out in the wake of the Snowden NSA leaks. What has emerged indicates that the Federal government believes it can secretly set precedents that amend the Constitution in a “court” that consists of a single judge acting in a process that allows no argument by opposing sides. The resulting opinion is then classified “Top Secret” and used as legal cover for government actions that are clearly in violation of the Constitution.

This secret FISC issued a decision over the weekend extending “authority to collect telephony metadata in bulk”. We know about this secret decision only because DNI Clapper “decided to declassify and disclose” it publicly.

That same day, Congressman Jim Sensenbrenner, co-architect of the Patriot Act, (R) publicly came out against the NSA’s phone data dragnet calling it abusive, excessive and un-American and saying it was time “to put their metadata program out of business”.

We can always hope that Sensenbrenner has finally come to his senses about government abuse of power. But besides the Patriot Act, he was also author of the Real ID Act, supporter of Gitmo violations of human rights, author of the Digital Transition Content Security Act that attacked fair use of intellectual property and an advocate of extending the Espionage Act of 1917 to go after journalists. It’s much more likely that he’s just trying to distance himself from public outrage. The villagers are grabbing pitchforks and lighting torches over phone surveillance even if they don’t understand the full spectrum of the Frankenstein monster Sensenbrenner has worked so hard to build for over a decade.

A 21st Century Star Chamber

These authoritarians don’t just torture suspects at Gitmo and rendition sites. They torture logic and language to justify their criminal behavior. For example when DNI Clapper released a secret court opinion on Sep 17 he said, “The release of this opinion is consistent with the President’s call for more transparency on these valuable intelligence programs”.

Clapper and Obama brag about transparency when we continue to have a secret “court” issuing classified “top secret” decisions that impinge on Constitutionally recognized rights of the people. If they wanted to be transparent, they would only use a real court where arguments are heard and opinions are public, not classified.

The heavily redacted, “top secret” FISC opinion replaces Constitutional warrants from judges with “reasonable, articulable suspicion (RAS) as determined by a limited set of personnel”.

But don’t worry, there are safeguards and oversight. The FISC decision “requires the government to notify the Court [remember it’s really just a single FISA judge] in writing immediately concerning any instance of non-compliance.” Not surprisingly, the opinion continues adds, “According to the government, in the prior authorization period there have been no compliance incidents.” Move along, there’s nothing to worry about. Do we really believe that the government is going to blow the whistle on itself when it zealously persecutes and prosecutes whistleblowers?

The Obama administration continues to extend the surveillance state but this is not something that started with Obama. Just like the infamous Star Chamber, the FISA “court” was established in 1978 as a reform measure. In the aftermath of the Church Committee hearings it was designed to prevent the violations of the Fourth Amendment under President Nixon. But it had a fundamental flaw. It did an end run around the Constitution in the name of expediency allowing surveillance without court order and allowing it to act in secrecy.

The original Star Chamber was created as a tool against those who were too big to jail. But there are terrible consequences whenever we violate the principles of jury trials, open to the public. The Star Chamber, meeting secretly with no indictments and no witnesses, didn’t restrain the powerful but became their most feared tool of oppression. In the same way, the FISA “court” with its secret process and secret decisions has not protected the Fourth Amendment but has become a tool of oppression.

Here’s what Chief Supreme Court Justice Roberts said about FISC in July, after the Snowden revelations brought it to public attention:

“When I first learned about the FISA court, I was surprised,” Roberts told the committee. “It’s not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it’s subject to the glare of publicity. And the judges explain their decision to the public and they can examine them.”

He was surprised that it existed. Why? Because there is nothing in the Constitution about a secret “court” of one judge, no jury and no argument. But Roberts played along and appointed judges anyway. And most of the public outrage from Congress and the crony media has been that it’s mainly Republicans getting appointed to FISC and not enough Democrats. That’s the sorry state of our republic.

Our Rights in the Fickle Hands of Political Judges

The FISC decision that Clapper released says that to authorize a dragnet search of phone data “the Court [a single judge] considered whether the Fourth Amendment to the US Constitution imposed any impediment to the government’s proposed collection”. These statists pretended the Fourth Amendment’s simple and clear prohibitions weren’t applicable and they looked to guidance from Supreme Court (SCOTUS) decisions.

The FISC decision cites three SCOTUS cases. The first, Olmstead v US (1928) was written in the throes of Alcohol Prohibition and said that wiretapping private telephone conversations wasn’t a violation of the 4th and 5th Amendments.

That decision was overturned in the period of temporary sanity between the Prohibition Wars by Katz v US (1967) which held that unreasonable search & seizure referred to all areas where a person has a “reasonable expectation of privacy”.

But under the political pressures of Prohibition II, the War on Drugs, the SCOTUS decision on Smith v Maryland (1979) produced a new twist on the idea of an “expectation of privacy”. The trial focused on phone company pen registers. Pen registers are devices that record all numbers called from a particular phone. The SCOTUS decision reasoned that there was no “expectation of privacy” since the caller voluntarily provided the numbers to the phone company when they dialed the phone numbers.

Business Records Not Private?

That SCOTUS decision is the FISC excuse for ignoring the Fourth Amendment in its dragnet collection of phone data. It is also the rationale for the government collecting data from internet companies as part of the PRISM program. And it is the argument that government at every level is using to track you constantly via your cellphone.

In mid-July the NJ State Supreme Court ruled that police required a warrant to track someone by cellphone. But two weeks later, the federal Court of Appeals for the Fifth Circuit, ruled that there was no expectation of privacy because your cellphone location is “a business record” that they can get from a third party. It looks like this will also go to the Supreme Court.

The “logic” of Smith v Maryland — that any records that any business has about you are not private and that the government needs no warrant — is the legal evasion at the heart of the surveillance state. THAT is the issue with meta-data and that is why it is a fight the people must not lose to the authoritarians.

The remedies against an American Star Chamber were the 4th, 5th Amendments and open trial by jury. The remedy against the 21st Century Star Chamber — the secretive FISA Court — is their reinstatement.  By Infowars.com

[Author]FROM THE EDITOR:

Dear readers:
Privacy is an item in our liberties that has been clearly established from the Constitution from the very beginning of the nation, but which many have probably forgotten its meaning. In the following article, Matthew Harwood, from the Tom Dispatch, takes pretty inside about how the government has violated this principal in so many way, so undermining our freedom to be left alone. Due to its length, El Reportero will publish it in several parts. This is Part 3 and last.

by Matthew Harwood,
Tom Dispatch
News Analysis[/Author]

And then there’s the Stingray, a device first used in our distant wars and so intrusive that the FBI has tried to keep it secret — even from the courts. A Stingray mimics a cell-phone tower, tricking all wireless devices in an area to connect to it instead of the real thing. Police can use it to track suspects in real time, even indoors, as well as nab the content of their communications. The Stingray is also indiscriminate. By fooling all wireless devices in an area into connecting to it, the government engages in what is obviously an unreasonable search and seizure of the wireless information of every person whose device gets caught up in the “sting.”
And when the federal government isn’t secretly using dragnet surveillance technologies, it’s pushing them down to state and local governments through Department of Homeland Security (DHS) grants. The ACLU of Northern California has, for example, reported that DHS grant funds have been used by state and local police to subsidize or purchase automated license plate readers, whose images then flow into federal databases. Similarly, the city of San Diego has used such funds to buy a facial recognition system and DHS grants have been used to install local video surveillance systems statewide.
In July, Oakland accepted $2 million in federal funds to establish an around-the-clock “Domain Awareness Center,” which will someday integrate existing surveillance cameras and thermal imaging devices at the Port of Oakland with the Oakland Police Department’s surveillance cameras and license plate readers, as well as cameras owned by city public schools, the California Highway Patrol, and other outfits and institutions. Once completed, the system will leverage more than 1,000 camera feeds across the city.
Sometimes i feel like somebody’s watching me
What makes high-tech surveillance so pernicious is its silent, magical quality. Historically, when government agents invaded people’s privacy they had to resort to the blunt instruments of force and violence, either torturing the body in the belief it could unlock the mind’s secrets or kicking down doors to rifle through a target’s personal effects and communications. The revolution in communications technology has made such intrusions look increasingly sloppy and obsolete. Why break a skull or kick down a door when you can read someone’s search terms or web-surfing history?
In the eighteenth century, philosopher Jeremy Bentham conceived of a unique idea for a prison. He called it a “panopticon.” It was to be a place where inmates would be constantly exposed to view without ever being able to see their wardens: a total surveillance prison. Today, creating an electronic version of Bentham’s panopticon is an increasingly trivial technological task. Given the seductive possibilities now embedded in our world, only strong legal protections would prevent the government from feeling increasingly free to intrude on our lives.
If anything, though, our legal protections are weakening and privacy is being devalued, which means that Americans with a well-developed sense of self-preservation increasingly assume the possibility of surveillance and watch what they do online and elsewhere. Those who continue to value privacy in a big way may do things that seem a little off: put Post-it notes over their computer cameras, watch what they tweet or post on Facebook, or write their emails as if some omnipresent eye is reading over their shoulders. Increasingly, what once would have been considered paranoid seems prescient — self-defense and commonsense all rolled into one.
It’s hard to know just what the cumulative effect will be of a growing feeling that nothing is truly private anymore. Certainly, a transparent life has the potential to rob an individual of the sense of security necessary for experimentation with new ideas and new identities without fear that you are being monitored for deviations from the norm. The inevitable result for many will be self-censorship with all its corrosive effects on the rights of free speech, expression, and association.
The unknown unknowns
Note that we’ve only begun a tour through the ways in which American privacy is currently under assault by our own government. Other examples abound. There is E-Verify’s proposed giant “right-to-work” list of everyone eligible to work in the United States. There are law enforcement agencies that actively monitor social media sites like Facebook and Twitter. There are the Department of Homeland Security’s research and development efforts to create cameras armed with almost omniscient facial recognition technology, not to speak of passports issued with radio frequency identification technology. There are networked surveillance camera feeds that flow into government systems. There is NSA surveillance data that’s finding its way into domestic drug investigations, which is then hidden by the DEA from defense lawyers, prosecutors, and the courts to ensure the surveillance data stream continues unchallenged.
And here’s the thing: this is only what we know about. As former Defense Secretary Donald Rumsfeld once put it, “there are also unknown unknowns — there are things we do not know we don’t know.” It would be the height of naïveté to believe that government organizations across this country — from the federal to the municipal level — aren’t engaged in other secret and shocking privacy intrusions that have yet to be revealed to us. If the last few months have taught us anything, it should be that we are in a world of unknown unknowns.
Today, government agencies act as if they deserve the benefit of the doubt as they secretly do things ripped from the pages of science-fiction novels. Once upon a time, that’s not how things were to run in a land where people prized their right to be let alone and government of the people, by the people, and for the people was supposed to operate in the open. The government understands this perfectly well: Why else would its law enforcement agents and officers regularly go to remarkable lengths, sometimes at remarkable cost, to conceal their actions from the rest of us and the legal system that is supposed to oversee their acts? Which is why whistleblowers like Edward Snowden are so important: they mount the last line of defense when the powers-that-be get too accustomed to operating in the dark.
Without our very own Snowdens working in the county sheriff’s departments or big city police departments or behemoth federal bureaucracies, especially with the world of newspapers capsizing, the unknowns are ever more likely to stay unknown, while what little privacy we have left vanishes.
This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.
Matthew Harwood is a journalist in Washington, DC, and a frequent contributor to the Guardian’s Comment is Free. His writing has appeared in The Washington Monthly, Progress Magazine (U.K.) as well as online at Columbia Journalism Review, CommonDreams, and Alternet. He is currently working on a book about evangelical Christian rhetoric and aggressive US foreign policy. You can follow Matt on Twitter @mharwood31.