In 1975, I reported for the first of many times that Senator Frank Church (D–ID) had discovered that both the Federal Bureau of Investigation and the secret National Security Agency (NSA)were so repeatedly and effectively violating our Fourth Amendment right to personal constitutional privacy, along with our First Amendment speech rights, that he declared: “The American people need to be assured that never again will an agency of government be permitted to conduct a secret war against those citizens it considers a threat to the established order.”*
But this emergency warning went unheeded, despite Senator Church’s additional warning that our failure to act against this secret war against us would “leave us no place to hide.”
The citizenry paid little attention. How many of you today remember Frank Church?
However, surely today’s explosive disclosures of the NSA’s ceaselessly growing invasions of the Fourth Amendment—as revealed by former NSA contractor Edward Snowden—will not fade away amid the floods of distractions in this digital age. Or will they?
Members of Congress from both sides of the aisle are organizing investigative committees to demand accountability. For its part, the Obama administration seems to regard the NSA as its favorite weapon with which to deprive “We the People” of the benefits of the Fourth Amendment.
Moreover, thanks to other spreaders of Snowden’s “leaks,” more citizens are realizing what Senator Ron Wyden (D–OR), one of the Frank Churches of our time, describes as the reach of the secret Foreign Intelligence Surveillance Court. It permits the NSA and other intelligence agencies to disregard the Constitution by creating “a body of law separate from the one on the books—one that gives U.S. spy agencies the authority to collect bulk information about Americans’ medical care, firearms purchases, credit card usage and other transactions with business and commerce” (Peter Wallsten, Carol D. Leonnig, and Alice Crites, “For Secretive Surveillance Court, Rare Scrutiny in Wake of NSA Leaks.” Washington Post, June 22, 2013). Said Wyden: “The government can get virtually anything.”
Only now are we finding out how thoroughly partisan this high court of limitless government surveillance has become. In a front-page July 26 New York Times report, Charlie Savage—who continually merits a Pulitzer Prize for preserving the Constitution—surprised many by fingering the chief justice of the United States as the sole selector of judges appointed to the Foreign Intelligence Surveillance Court (FISA Court). Since this selection process began in 2005, “86 percent of [the] choices have been Republican appointees and 50 percent have been former executive branch officials,” Savage reported. Moreover, all of the selecting chief justices since then have been placed on high by Republican presidents.
So the current defiler of the Fourth Amendment’s guarantee of your personal confidential privacy is conservative Chief Justice John Roberts.
To further cement the huge secret surveillance powers of the NSA, Savage informs us (emphasis added): “The rulings are classified and based on theories submitted by the Justice Department without participation (in these decisions) of any lawyers offering contrary arguments or appealing a ruling if the government wins.”
No president in our history has been as continually contemptuous of the separation of powers as President Barack Obama. But now, thanks in large part to Edward Snowden (whatever his final fate) exercising his First Amendment right to expose massive, secret government surveillance, I dared to hope the Constitution might be restored. Among the positive signs: a slowly growing bipartisan movement in Congress to reduce the scope and impact of the FISA Court. On July 24, “the House on Wednesday barely defeated an amendment to curtail the NSA’s collection of every phone call, limiting it [only] to people charged in investigations” (New York Times editorial, “A Bipartisan Warning on Surveillance,” July 26, 2103). The vote was 205 to 217.
And there have been some rallies around the country protesting what has been “leaked” about the NSA and other government muggings of our privacy.
But how long will this momentum last among the citizenry—much less among members of Congress who have elections coming up? At first, many Americans saw Snowden as a patriot, but now—dig this—“Edward Snowden Poll Finds More Americans Now Think He Did the Wrong Thing”. Some 38 percent of Americans thought Snowden did the wrong thing, 33 percent felt he did the right thing, and 29 percent were undecided.
I ask again: How many Americans remember Frank Church?
Clearly the Constitution needs to be defended and preserved, and not just on the surveillance front. Another challenge “We the People” must overcome—for all of our children’s sake—is detailed in John Whitehead’s new book, A Government of Wolves: The Emerging Police State (Select Books), for which I wrote the introduction. Whitehead argues that we must move against the way schools throughout the nation now condition students to subservience. He cites “school lockdowns where police and drug-sniffing dogs enter the classroom, and zero-tolerance policies that punish all offenses equally and result in young people being expelled for childish behavior . . . young people find themselves in a learning environment where they have no true rights and government authorities have near total power over them and can violate their constitutional rights whenever they see fit.”
Are they learning to be American? And to what extent will their president be a replica of Barack Obama?
* The quote comes from my book, The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2003).