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June 10, 2013 The Constitutional Amnesia of the NSA Snooping Scandal: I've seen this all befor

e and have an FBI file to show for it BY John B. Judis President Barack Obama has assured us that we need not be worried about the Nati onal Security Agency listening to our phone calls or monitoring our Internet use . The NSA s programs, he said, represent modest encroachments on privacy that are wor th us doing to protect the country from terrorists. Count me among those who are not reassured by Obama s statement. I know better from my schoolboy knowledge of the Constitution and from my own experience during the '60s with unwarranted govern ment surveillance. I don t usually like to base moral judgments on what the Constitution does or does not allow, but in this case, it makes sense to do so. The Constitution had two very different purposes: One was to create a functioning government; the other, forged in the wake of the American revolution, was to establish constraints that would prevent the abuse of state power. The First Amendment was designed to do the latter; and so was the Fourth, which prohibits unreasonable searches and seiz ures. The administration s obsessive pursuit of press leaks threatens the First Ame ndment s freedom of the press; and the NSA s surveillance violates the Fourth Amendm ent s ban on general warrants on indiscriminate searches without probable cause. The administration claims that these actions were approved by Congress and autho rized by the courts. But I am not impressed that some senators and judges approv ed these efforts. American history is littered with bad decisions from narrowed minded, short-sighted legislators and jurists. I ll take my stand with senators Wy den, Udall, Durbin, and Paul on these issues rather than with Senator Lindsay Gr aham or Roger Vinson, the judge who signed off on the NSA s surveillance and who a lso ruled that the Affordable Care Act was unconstitutional. One reason that I am particularly angry about what the administration has done i s that I ve seen it all before. In the wake of the Cold War, both the Federal Bure au of Investigation and Central Intelligence Agency acquired tremendous power to investigate and deter what Washington believed was political subversion. There was little oversight of either agency. In the late '40s and '50s, the FBI identi fied and monitored domestic Communists, whom its director J. Edgar Hoover believ ed to be under every bed sheet, while the CIA operated abroad. Then, in the 1960 s, both agencies turned their considerable power and attention to the domestic t hreat to official Washington posed by opponents of the Vietnam War. Some of what they looked at it was genuine criminal activity people planting bombs or kidnappi ng newspaper heiresses but most of it had nothing to do with criminal activity or with any foreign directed subversion. It simply consisted of determined dissent from what the Johnson and Nixon administrations were doing. THE JOURNALIST AS A YOUNG MAN A photo of the author from his FBI file. Take my own case. I was a politically active radical and socialist during much o f the '60s and the first half of the '70s. I got started in the civil rights and anti-war movements; I was a member of Students for a Democratic Society, althou gh in northern California that didn t mean much. I was an editor of a theoretical journal euphemistically titled Socialist Revolution (at a time when the real har dliners described themselves as small-c communists), and I was a leader of a nat ionwide socialist organization called the New American Movement, which tried to pick up where the less crazy parts of SDS left off. I had my own vague vision of what a socialist America would look like, but almos

t everything that I did was directed at immediate issues like ending the Vietnam War or later impeaching Richard Nixon. I was not a bomb thrower. I advocated ru nning candidates in elections. I taught classes on Marx s Capital and American his tory at a school we organized in Oakland. But during this period, I was under almost constant surveillance by the FBI and by other intelligence or police agen cies. I received regular visits from the FBI (I told them I wouldn t talk to them) , and they also visited my parents and friends. REDACTED Another document from the author's FBI file. As my FBI file, which I later obtained, attested, my movements were being monito red even when I didn t know it. (Most of it is, unfortunately, blacked out.) In or ganizing demonstrations, I encountered people who turned out to be government ag ents. I was pulled over by the police with guns drawn for no apparent reason. An d I also received inquiries about my tax returns from the IRS even though I was living on about $3000 a year during much of this period. These inquiries, which to this day may or may not have had something to do with my politics, certainly make me sympathetic to the rightwing groups who were barraged by inquiries from the IRS whether or not these inquiries were directed by higher-ups in the administ ration. There were, obviously, people who were subject to far greater harassment than I was, and who played a much greater role in the new left. But that s what makes my case interesting. I can pretty safely say that there was no good reason to put m e under surveillance. After the Watergate scandal, Congress finally recognized t hat the FBI and CIA had widely overstepped their Constitutional bounds. In 1978, Congress passed the Foreign Intelligence Surveillance Act. It was supposed to l imit agency surveillance to people whom the agency suspected, on sufficient grou nds to convince a judge, were actually agents of a foreign power. The government agencies weren t supposed to fool with anybody else. But 35 years later, we learn a government agency has been empowered to monitor all of us all the time. That indiscriminate power, like the power that the CIA and FBI held after World War I I, can be directed against domestic dissent. Obama says that the debate over the NSA s activities is healthy for our democracy an d a sign of maturity. But I think it s a sign of forgetfulness of Constitutional amnes ia on the part of Obama and his Attorney General Eric Holder, not to mention the a dministration s vaunted intelligence chiefs who want to divert attention from the subject of the leaks, which is their own behavior, onto the leaker. I am hoping Democrats as well as Republicans in Congress remind the administration what the Constitution was designed to do and what the original FISA legislation was meant to do, but judging from the performance of most congressional leaders so far, I am not holding my breath.

Comments: June 10, 2013 My father worked for Dr. Strangelove. (The real people who were inspirations for the movie.) His job was to blow up the world. As much as i did not like my dad, I don't think his heart was in the job. (Now you know why we didn't die in a nu clear holocaust.) My father was supposed to get a security clearance when he sta rted his job. There was a problem. His mother's birth was attended by two doctor s. Each thought the other signed the birth certificate. The FBI thought, "Easter n European parents, Jewish name, no birth certificate . . . what was wrong with this picture? Took them six months of intensive investigation to conclude dad wa s fit to blow up the world. My wife was delivered by an Arab doctor. I expect ho meland security to question our hens any day now. - skahn

June 10, 2013 The constitutional amnesia point is extremely well taken as a matter of historic al example and psychological insight.The conceptual template of these programs i s, it turns out, reading content for as much as that distinction is vaunted. And , as I said elsewhere here, the psychological insight that animated the conclusi on of the Church Commission is that power over information corrupts and absolute power, well, all here know that drill. - basman June 10, 2013 Dude, you had the look down COLD! Had I been a 60's/70's radical I'd have been t otally jealous of you - I bet you got all the less-violent Dohrn babes. - Lymon1 June 10, 2013 It interests me to see if the Supreme Court addresses the NSA spying and how it is resolved. On the one hand, the Supreme Court held that the Fourth Amendment d oes not apply in the IRS tax audit context because the government is investigati ng to see if people are in compliance or to obtain assurances that the law is no t being violated. Further, the search and seizure tax laws which allowed British revenue agents to search coloinial vessels for violations of import duites with out a warrant were enacted by the states after the American Revolution. The abil ity to search buildings without a warrant was the subject of controversy between the Britisha and the colonies. the British had claimed that a warrant was not r equired for searches of buildings. The colonies objected to that claim. After th e American Revolution, under the tax laws, searches of buildings required a warr ant preceded by information under oath. In the early 1760's, there was a practic e in Britain of warrants being issued by the Secretary of State permitting agent s to hunt down, search and arrest individuals because seditious literature had b een published, but the warrants left the choice as to where to search and whom t o arrest up to the agents. British courts held that such warrants were not a def ense to trespass actions, the concern being, as Scalia pointed out in the recent DNA cases that searches and arrests were then conducted based upon warrants tha t were not premised on the provision of information as to the prior conduct of t he individual being searched and arrested. So, sometimes when the government has no prior information to justify a search, there is a right not to be searched a nd sometimes there isn't. I contend that the word "unreasonable" is the dividing line, but there is no case law to support that. - Nusholtz June 10, 2013 I have an FBI file (from the mid-Sixties to the mid-Seventies I was a Viet Nam w ar protester). I was also associated with a 'revolutionary' union movement (DRUM ) in Detroit, where I came in contact with communists (my best friend was a Leni nist who carried a gun to 'protect' himself from the Trotskyites). I was 'secret ly' photographed (sometimes a camera pointed at you by a policeman is pretty obv ious) and written up in both capacities. But I wasn't afraid until Kent State in 1970. When Nixon said that those students wouldn't have been shot 'if they hadn 't been there,' I was struck with a wave of paranoia. I was certain that Nixon w as coming to get me, even though I was near the bottom of his two-million-person s-strong enemies list. I thought of leaving Detroit or even the country. But I d idn't, because I had some experience in actually living a politically restricted life, when I was in Air Force Intelligence in Berlin in the early Sixties. I wa s inside Communist territory under the martial law of the Allies, surrounded by Russian and East German combat planes (the Allies were not permitted to have com bat planes in Berlin). During the Berlin Crisis (after the Wall went up in 1961) and the Cuban Missile Crisis in the fall of 1962, I learned to tamp my paranoia down. It was the only way to survive emotionally. I also acquired a KGB file wh

ile in Berlin. Our laundry lady at Tempelhof Airport was eventually exposed as a n East German spy. She was having an affair with our operations officer (she was pumping him in more ways than one), and she was funneling information about us through East Germany to Moscow. Later, I was under martial law twice more, in De troit in 1967 during the riots (Mitt's dad, George, was the one who asked for fe deral troops) and at the Democratic Convention in Chicago in 1968. Paranoia does n't strike me deep anymore. I'm not all that concerned about the current brouhah a about snooping. Despite my political background, the only time I'm aware of th at the government 'spied' on me was when the FBI contacted my relatives and frie nds for a Top Secret background check for Air Force Intelligence. It's all a mat ter of degree, and as Eldridge Cleaver (whom I voted for when he was on the ball ot in Michigan) once said, 'In America, oppression is like being pressed between two satin sheets.' That's still generally true. I now see my political activiti es in the Sixties and Seventies as a bit silly, even though I know I made a smal l difference in helping to end the Viet Nam War. Technology today has muted any serious discussion about privacy and the Fourth Amendment. NSA satellites are re cording every phone conversation in the world. We should still be concerned abou t privacy, but it's a losing fight. And, yes, we still need people like Mr. Judi s to stand up to power. Sometimes losing fights are the best kind. - magboy47 June 10, 2013 John, you have really hit the nail on the head. Even though I was at time on the other side of the political spectrum, having served as a medical corpsman in Vi etnam and doing the last two years of my enlistment at Edwards AFB in the Mojave Desert (June, 1968 - March, 1970). As Yogi Berra would say, "It's deja vu all o ver again." I drove many times on weekends to San Franciso and even went to witn ess the confrontation between the CHP police and students during the rioting at People's Park in Berkeley. It finally dawned on me during that time what a terri ble decision I had made to serve in Vietnam even as a non-combatant and how peop le were being hunted down like enemies of the state. I changed a great deal and remain a liberal to this day. So, thank you for your personal story and your hon esty, and I'm glad the FBI and the IRS never busted you as a young man. You are one of the few writers with whom I can identify with on TNR and support your imp ression this spy scandal is a blast from the past as the DJs used to say on the radio. - rewiredhogdog June 10, 2013 John - you make a pretty fabulous hippy. - WandreyCer June 10, 2013 I don't disagree with a single word and... The U.S. Security State exists becaus e the Bush II administration flagrantly dropped the ball on the al-Qaeda terror threat, then completely and totally overreacted. Obama, who many (me included!) had hoped would return us to the status quo ante, instead doubled down. That he did so is really no great surprise when you think about it. Had a single signifi cant terrorist act occurred on his watch he would have been crucified by the sam e Republicans who want to impeach him for Benghaz, an event that pales in compar ison to any of the mass shootings that have occurred in the US in the past year, much less 9/11i! (Ditto, I'm inclined to think that it's partly technocratic on eupsmanship on Obama's part, i.e., "I can wage the war on terror better than tha t Dumb Ass did!") Whatever way you look at it: It's horrendous, it's disgusting, it's completely contrary to everything America stands for...and it's quite poss ibly permanent. It's also a lot like Nixon and China. There was no way the Democ rats, having "lost China" in 1949, could normalize relations with the world's la

rgest Communist dictatorship. It took Nixon, who was one of those who made his c areer demonizing supposedly pinkish "China Hands" at the State Department and wh o had everything to gain and nothing to lose, to break the stalemate. My guess i s that if the Security State is ever dismantled it will be under similar circums tances. Collective amnesia is working on many different levels. Richard Jasper O neonta, NY - arpeejay http://www.newrepublic.com/article/113424/nsa-snooping-scandal-reveals-our-const itutional-amnesia?utm_campaign=tnr-daily-newsletter&utm_source=hs_email&utm_medi um=email&utm_content=9046154

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