William Barr Helped Build America’s Surveillance State

UPDATE: On Feb. 14, 2019, the Senate confirmed William Barr to be the next attorney general of the United States by a vote of 54-45.

William Barr, President Trump’s nominee for attorney general, has a history of getting it wrong. From designing warrantless surveillance programs to justifying the president’s power to disregard acts of Congress, Barr has advanced dubious legal theories that have been rejected by the courts, Congress, and the public.

As Barr begins the confirmation process, senators must question Barr on his record regarding the right to privacy and the Fourth Amendment — which raises serious concerns about his suitability to be attorney general. Barr has violated or supported violations of Americans constitutional rights, leaving a disastrous legacy of warrantless spying and government abuse.

Barr was the godfather of the NSA’s bulk data collection program

While serving in the George H.W. Bush administration, Barr helped develop what became a “blueprint” for the National Security Agency’s mass phone surveillance program. In 1992, he and his then-deputy Robert Mueller authorized the Drug Enforcement Administration to begin amassing phone call data in bulk, ordering telephone companies to secretly hand over the records of all phone calls from the U.S. to countries — which eventually grew to be well over 100 nations — where the government believed drug traffickers were operating.

As USA Today reported when the DEA program came to light, it “was the government’s first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime.”

The DEA program ultimately became a model for the NSA’s phone records collection program under the Patriot Act of 2001, which the agency used to collect the domestic call records of tens of millions of Americans. The NSA program, exposed by NSA whistleblower Edward Snowden, was found to be illegal by a federal appeals court, and in 2015 Congress voted on a bipartisan basis to partially reform it. Barr, unsurprisingly, was an ardent supporter of the Patriot Act when it was enacted. In fact, he said the law didn’t go far enough.

Congress should question Barr about whether he will be a roadblock to still-needed surveillance reforms and whether he believes the government has the power to resurrect or expand warrantless spying programs.

Barr worked to make it easier for Verizon and other companies to hand over massive amounts of sensitive customer data to the government

In the George W. Bush era, during which Barr served as executive vice president and general counsel at Verizon, the telecom giant participated in a massive, warrantless surveillance program known as Stellar Wind. Under Barr’s watch, Verizon allowed the NSA to intercept the contents of Americans’ phone calls and emails and to vacuum up in bulk the metadata associated with Americans’ phone calls and internet activities.

This surveillance was prohibited by the Foreign Intelligence Surveillance Act (FISA), which Congress passed to regulate government surveillance practices and prevent abuses. The Justice Department eventually concluded in 2004 that portions of the program were illegal. Exact dates of Verizon’s involvement are not known, though documents suggest they participated at least as early as 2007. Other portions proved to be a forerunner of the NSA’s Upstream surveillance program, which the government continues to use today to unlawfully search Americans’ emails and internet communications without a warrant.

As Verizon’s general counsel, Barr later lobbied Congress to give telecom companies retroactive and future immunity from private lawsuits for participating in illegal surveillance programs, which would make sure that companies like Verizon would never be held accountable for helping the government violate Americans’ privacy.

Barr himself has held the legal position that Americans do not have a Fourth Amendment-protected privacy interest in data held by third parties — a view that the Supreme Court declined to adopt in last year’s pro-privacy ruling about cellphone location tracking by police.

Senators should question Barr on whether he still holds the position that individual’s do not have a Fourth Amendment-protected interest in information held by third parties. In addition, they should question whether he will support actions that widen the surveillance dragnet, as his history at Verizon suggests that he will have few qualms about conscripting other private companies — including tech giants like Facebook and Google — into handing over private user information to the government.

Barr has defended the president’s power to disregard laws passed by Congress

Barr is also an advocate of sweeping executive authority, which would have major implications for oversight. In a 1989 memo, Barr, then serving as assistant attorney general for the Justice Department’s Office of Legal Counsel, raised doubts about the ability of Congress to limit the executive branch’s powers, and he has even argued that the FISA law is too restrictive and that the president can disregard its limits under the guise of fighting terrorism.

As long as the president invokes national defense, Barr believes an administration could embark on virtually any endeavor. This philosophy helped lend credence to the radical theory that the executive branch has nearly unlimited counterterrorism powers that Congress cannot regulate, which is shared by the likes of John Yoo, who in the George W. Bush administration worked to justify the Stellar Wind program and torture.

This theory could be used as justification to flout laws passed by Congress addressing everything from foreign policy to immigration to domestic law enforcement.

The future of privacy rights

The Trump administration, with help from Congress, has already done grave harm to our right to privacy. While Trump has raised concerns about perceived surveillance abuses, albeit often with false and misleading claims, he signed into law the FISA Amendments Reauthorization Act, which arguably codified and expanded certain surveillance powers.

Barr’s nomination is more evidence that the Trump administration will continue to pursue vast surveillance powers at the expense of our Fourth Amendment rights and will have little respect for Congress’ power. Members of the Senate Judiciary Committee must seize their opportunity to question Barr thoroughly and determine whether he will protect Americans from government intrusions and expansive executive power if he’s returned to run the Justice Department for a second time.

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Anonymous

One could make a strong argument that James Madison, John Jay, Alexander Hamilton and the other Framers of the U.S. Constitition considered citizen's constititional rights as PRIVATE PROPERTY of the citizen. The government doesn't own it and corporations don't own it - it belongs to each of us. It should only be used or sold with our explicit permission. That puts an interesting twist on the "third party" possession precedent by previous courts.

Anonymous

If the co-equal Judicial Branch rules something "illegal" it's meaningless if there is no accountability. It's a joke.

Ms. Gloria Anasyrma

Anybody that Trump appoints is OK with me. All these fault finders will find fault with whatever Trump does.

Anonymous

I take it you are ready to have every phone call you make listened to by a third party whom you don't know, but who can have you arrested on suspicion of something you never heard of because of things you had said over a number of calls. That does happen now, only not to the extent Mr, Barr wants it to happen. tRump needs no fault finders to see his errors, he leaves them plain as day for anyone who is willing to admit he isn't PERFECT.

L Young

This appointment continues a slippery slope to an autocratic executive dictator who feels beholden to no one. This makes Nixon look like a boy scout!

EnlightenOne

UNTIL NOVEMBER 6, 2018, U.S. federal court history has no record of a (Special) Grand Jury empaneled to handle mass murder of civilians by the very people sworn to protect them. Right now on-line, 57 exhibits exist as a matter of public record, proving ABSOLUTELY, that the root cause of our post-Constitutional era that loosed grossly illegal military adventures killing and displacing many millions in at least 7 countries has been a governmental conspiracy so large it is incomprehensible to many who refuse to consider it.
ACLU recklessly turns a blind eye turned the Constitution inside-out while also flipping military defense postures to pre-emptive, first-strike aggression with overwhelming
evidence of US Administration, National Security, Military and related support bureaus left the eastern seaboard unprotected from airborne attack that killed nearly 3,000 citizens on 9/11

EnlightenOne

UNTIL NOVEMBER 6, 2018, U.S. FEDERAL COURTS HAVE NO RECORD of a (Special) Grand Jury empaneled to handle mass murder of civilians by the very people sworn to protect them. Right now on-line, 57 exhibits exist as a matter of public record, proving ABSOLUTELY, that the root cause of our POST-CONSTITUTIONAL era, which also loosed grossly illegal military adventures killing and displacing many millions in at least 7 countries in the past 17 years has been a governmental conspiracy so large, it is incomprehensible to so many Americans who cannot even consider it.

Can the federal courts bear unimaginable pressure from the most powerful, dark and deadly forces on earth? Despite overwhelming evidence that the second Bush Administration, its National Security, Military and related support bureaus aided and abetted -- mainly by leaving the eastern seaboard unprotected from airborne attack -- the mother-lode of all FALSE FLAGS that killed nearly 3,000 citizens on 9/11? ( See 57 exhibits at LCfor911.org )

ACLU's disheartening distance from considering 9/11 truth and justice until the recent past is understandable, to some extent. Now that The Lawyers' Committee for 911 Inquiry's case in the public interest is moving toward 23 jurors under the protection of the 5th Amendment, your institution's reputation will suffer by not honoring your once legendary tradition of standing tall for liberal democracy and individual protections as (partly) outlined in Guliani and Tashman's piece.

Now is the time to reconsider the ACLU's position. When peers (the Lawyers Committee) need real support to combat those ruining our dwindling freedoms and institutionalized graft, greed, dirty dealings, murderous mayhem and gross fabrications and pathological lies occupying places of power and wealth, history will ask why, when so much hard evidence was on public record, did the ACLU not do the right thing to help save America, when it had a chance?

Should that day come, your brand won't stand. If it does remain, a change would be easily justified, reading as: American Civil Liberties Undone.

EnlightenOne

UNTIL NOVEMBER 6, 2018, U.S. FEDERAL COURTS HAVE NO RECORD of a (Special) Grand Jury empaneled to handle mass murder of civilians by the very people sworn to protect them. Right now on-line, 57 exhibits exist as a matter of public record, proving ABSOLUTELY, that the root cause of our POST-CONSTITUTIONAL era, which also loosed grossly illegal military adventures killing and displacing many millions in at least 7 countries in the past 17 years has been a governmental conspiracy so large, it is incomprehensible to so many Americans who cannot even consider it.

Can the federal courts bear unimaginable pressure from the most powerful, dark and deadly forces on earth? Despite overwhelming evidence that the second Bush Administration, its National Security, Military and related support bureaus aided and abetted -- mainly by leaving the eastern seaboard unprotected from airborne attack -- the mother-lode of all FALSE FLAGS that killed nearly 3,000 citizens on 9/11? ( See 57 exhibits at LCfor911.org )

ACLU's disheartening distance from considering 9/11 truth and justice until the recent past is understandable, to some extent. Now that The Lawyers' Committee for 911 Inquiry's case in the public interest is moving toward 23 jurors under the protection of the 5th Amendment, your institution's reputation will suffer by not honoring your once legendary tradition of standing tall for liberal democracy and individual protections as (partly) outlined in Guliani and Tashman's piece.

Now is the time to reconsider the ACLU's position. When peers (the Lawyers Committee) need real support to combat those ruining our dwindling freedoms and institutionalized graft, greed, dirty dealings, murderous mayhem and gross fabrications and pathological lies occupying places of power and wealth, history will ask why, when so much hard evidence was on public record, did the ACLU not do the right thing to help save America, when it had a chance?

Should that day come, your brand won't stand. If it does remain, a change would be easily justified, reading as: American Civil Liberties Undone.

James Bordonaro

I think the first question he should be asked is why he wants to serve a president who routinely humiliates his cabinet members.

Anonymous

Yet the ACLU is mysteriously silent on Nancy Pelosi and her history with warrantless surveillance by the NSA and how she single-handedly saved the worst of the patriot act as she once again comes to power...

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