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Surveillance Gone Amok

Larry Schwartztol,
ACLU Racial Justice Program
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October 9, 2008

In pushing for ever-expanding and unaccountable surveillance authority, the Bush Administration has assured the public that it aims its spying capabilities at serious security threats. But as two government whistleblowers recently revealed to ABC News, surveillance programs touted as critical to protect national security have in fact been used to monitor the private communications of innocent Americans abroad, including humanitarian workers and U.S. service-members. While disturbing, ABC’s report confirms a core contention of the ACLU’s lawsuit challenging Congress’s recent expansion of governmental spying powers: unchecked surveillance authority invades the privacy of innocent Americans, and in doing so, fundamentally undermines the efforts of human rights workers, journalists, and attorneys doing important work around the globe.

Two former military intercept operators — the people who actually intercept, monitor, and collect international telephone and email communications — told ABC News that “hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home.” The operators worked for the National Security Agency (“NSA”), the spy agency chiefly responsible for international surveillance. They report that NSA routinely listened in on the innocent, and sometimes intimate, conversations of Americans abroad. There were apparently no effective procedures in place to filter out these kinds of communications.

The NSA program went beyond invading the personal privacy of Americans abroad (and their friends and family on the other end of the line). NSA also directed its surveillance powers at well-established humanitarian organizations, like the International Red Cross and Doctors Without Borders. As one whistleblower told ABC News: “We knew they were working for these aid organizations. . . . And yet, instead of blocking these phone numbers we continued to collect on them.”

The ACLU’s lawsuit challenging Congress’s recent expansion of surveillance authority, Amnesty International v. McConnell, shines a spotlight on the devastating effect of unchecked spy power on Americans doing indispensable work around the globe. The lawsuit challenges the FISA Amendment Act, which gives the government nearly unfettered access to Americans’ international communications (and in some instances, purely domestic communications) without any of the judicial oversight normally required under the Constitution. Unleashing surveillance authority from basic procedures designed to ensure oversight violates constitutional guarantees. But as the plaintiffs in the lawsuit demonstrate, it also damages the ability of Americans to conduct important international work.

The plaintiffs’ stories illustrate what’s at stake. For example, Joanne Mariner is a Program Director for Human Rights Watch, an organization renowned for its influential reporting on human rights abuses. Her areas of research require her to correspond with people all over the world, including people who have been imprisoned by the U.S. or other countries, relatives of detainees, political activist, and journalists. Many of these sources will only communicate confidentially, and for good reason: some are victims of human rights abuses, and others reasonably fear reprisals if their governments learn they are cooperating with a human rights group. If such sources believe their correspondences are likely to be intercepted by the United States — despite having no relation to terrorism or national security — those communications will simply evaporate.

Journalists face similar obstacles. Another ACLU plaintiff, Naomi Klein, is an award-winning journalist who reports on international affairs. In order to obtain comprehensive and accurate information about her subjects, she communicates with sources around the world, including foreign political activist who have been critical of the United States or their own governments. Like Mariner, Klein must guarantee her sources confidentiality because, for them, communicating honestly with a journalist brings real risks, including imprisonment or violence. When engaging in international communications with an American means the U.S. government is likely to listen in, vulnerable sources become far less forthcoming. This means that Americans lose access to fully informative journalism about world affairs.

Unfortunately, the ABC News report confirms that the concerns of Mariner and Klein, as well as other ACLU plaintiffs, are justified. In fact, international aid groups and others may face even greater exposure to illegitimate surveillance than the whistleblowers describe. The challenged surveillance law, enacted in July 2008, actually sanctions the NSA’s program of spying on Americans’ international communications; before the law passed, the Bush Administration was conducting such surveillance unilaterally and in violation of statutory law.

The ABC News report reaffirms another important point: the choice between ensuring safety and adhering to the Constitution is a false one. According to one of the whistleblowers — a U.S. Army Reservist who won the NSA Joint Service Achievement Medal in 2003 — over-reaching surveillance programs undermine security: “By casting the net so wide and continuing to collect on Americans and aid organizations, it’s almost like they’re making the haystack bigger and it’s harder to find that piece of information that might actually be useful to somebody.”

By confirming the abusive and harmful reach of such surveillance policies, the NSA whistleblowers illustrate the urgency of bringing the government’s surveillance powers back into line with core constitutional principles. Unchecked and unaccountable, the power of surveillance quickly runs amok.

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