Category: Op-Ed

With over a week passed since the #ReleaseTheMemo controversy finally came to a head, it’s time to reflect more deeply on how we got here, and how domestic surveillance under FISA should and should not be conducted.

To recap: The memo in #ReleaseTheMemo refers to the memo written by the office of surveillance hawk Rep. Devin Nunes, Chair of the House Intelligence Committee. It alleges that the FBI obtained a FISA warrant to surveil a Trump advisor based on questionable, politically motivated sources.

The controversy relates to the efforts of the FBI to determine whether Carter Page, an adviser to the Trump campaign, was a paid agent of the Russian government. Page came under FBI scrutiny from 2013 onwards. The FBI submitted an application for a FISA surveillance order in October 2016, just before the presidential election. The evidentiary basis for this order was in part based on the “Steele dossier”, a document developed by a former British intelligence operative, as part of a contract with Fusion GPS. The work was part of Fusion GPS’ contract with the Democratic National Committee and the Clinton campaign to fund `opposition research’ into Trump. The FBI noted in the application that the Steele dossier materials were politically motivated, but, following the usual `masking procedures’ in such applications, did not identify that the people ultimately paying for the Steele dossier research were Clinton and the DNC.

Rep. Nunes’s staff then developed a classified memo setting out the deficiencies they observed in the FISA application, arguing that even if the FBI had found Steele reliable as a source in the past, to rely in part on the Steele dossier materials was inappropriate given that it was funded by the Clinton campaign; and also arguing that Steele had shown himself by October 2016 to be an unreliable source by speaking to the press about the contents of the dossier. Rep. Nunes then had the House Intelligence Committee vote, on partisan lines, to release that memo, and with the White House’s consent, it was released. A competing classified memo from the Democratic minority, which took issue with the Nunes memo’s characterization of the FISA order application, was passed for release by the Committee on Feb. 5, but was then blocked by the President on the grounds that it contains classified information. Now, Democrats may seek a vote of the full House to approve the Democratic memo for release.

 

The Nunes memo controversy has made strange bedfellows

People on the left, such as billionaire Tom Steyer, are arguing that, in order to oppose Trump, we should side with the FBI – the same FBI that continues to actively suppress peaceful movements on the left for social justice, and that pays confidential informants to manipulate poor and mentally ill people into taking steps to carry out acts of violence that are planned and funded by the FBI itself.

People on the right, such as multi-millionaire Sean Hannity, are arguing that the memo is not a partisan hack piece, but is “worse than Watergate,” proving that the Obama administration illegally surveilled the Trump campaign.

The truth, for the rest of us, is both more subtle and more worrying; but to understand it, we need a little history that TV talking heads aren’t equipped to provide. It’s been a long, slow boil that has spanned a little over four decades, and, to help with it, we’ve provided a character list and glossary of abbreviations.

 

FISA I

Post-Watergate and Pre-9/11

FISA was the main reaction of Congress to President Nixon’s illegal surveillance of the Democratic National Committee, and of political dissidents more broadly, uncovered as part of the Watergate scandal. Steering between the intelligence community, who wanted no court oversight of their spying on Americans, and the civil liberties community, who wanted real court oversight, it set up the controversial “Foreign Intelligence Surveillance Court”, or “FISC.” The FISC was a secret court, composed of a rotating set of appellate judges appointed by the Chief Justice of the Supreme Court that would hear only from the intelligence community, not from the person being surveilled or from anyone representing their interests. Its orders would generally be secret. FISC-approved surveillance was of individual US persons who might be agents of foreign powers. Being such an agent was not in itself a crime, so FISC orders fell short of the Fourth Amendment’s requirements for warrants. However, in terms of the supporting documentation required, the requirements for applications for FISC orders appear to generally be more onerous than the affidavits that support findings of probable cause in ordinary criminal cases. The result was that, through to 2001, there were relatively few individualized applications for FISC surveillance orders on US persons.

 

FISA II

The PATRIOT Act

9/11 enabled the Bush administration to push a set of expansions to intelligence collection that had been floating around Capitol Hill since they were originally proposed by Joe Biden in 1995, before the Oklahoma City bombing. This included changes to FISA, such that it was now possible to submit an application for a FISA surveillance order to the FISC even where the primary purpose of the warrant application was no longer to gather foreign intelligence. The result was an expansion in FISA orders, especially relating to the activities of Muslims in the United States.

However, this didn’t go nearly far enough for the Bush administration. They wanted to conduct mass, warrantless domestic surveillance, but FISA, being limited to surveillance of individuals, would obviously not allow that. Instead, they knowingly implemented an illegal program under executive authority alone, called STELLAR WIND. STELLAR WIND involved mining a large database of the communications of American citizens, including e-mail communications, telephone conversations, financial transactions, and Internet activity. President Bush originally authorized the collection of telephone and e-mail metadata only if one end of the communications was foreign or when there was a link to terrorism, but NSA went beyond their remit and also collected the metadata of purely domestic communications. Retroactively, Bush declared that they were allowed to do so, but that analysts were only allowed to look at metadata related to terrorism.

 

FISA III

The FISA Amendments Act and the Institutionalization of Mass Surveillance

STELLAR WIND was revealed, reluctantly, by the New York Times in late 2005, and several lawsuits were brought against telecommunications companies for participating in a manifestly illegal program. Congress’s reaction was the FISA Amendments Act of 2008, which gave the telecommunications companies immunity, and retroactively legalized the President’s illegal surveillance of the American people. The FISA Court of Review (FISC-R), a circuit-level court that meets extremely rarely to consider appeals of FISC decisions, also in 2008 became the first Court to rule that there was a “foreign intelligence exception” to the Fourth Amendment.

Now, FISA was no longer entirely about surveillance of individuals; despite the Fourth Amendment’s `particularity’ requirements, there were now so-called `programmatic warrants,’ where the FISC authorized surveillance on thousands or tens of thousands of `targets’ at a time. The `targets’ were all non-US persons; but the people they communicated with were often US persons. The number of US persons whose communications are `incidentally’ collected in this way is unknown, but probably numbers in the millions; NSA and FBI have tried strenuously for six years to avoid giving even an estimate of how many.

Two elements of this statutory authorization are especially controversial: “about surveillance” and “FBI backdoor searches.”

“About” surveillance relates to surveillance that is “about”, but not to or from, a foreign target. It is particularly likely to intercept US domestic communications. NSA has currently voluntarily suspended about collection, in order to get the FISC to sign off on continued collection under Section 702 of the FISA Amendments Act, which covers the mass collection programs. However, Congress’s reauthorization has directed that if NSA gets permission to restart about collection, and Congress does not act to prohibit it within 30 days, NSA can restart and even expand it.

“FBI backdoor searches” are warrantless FBI searches of NSA’s foreign intelligence database, to find information relating to domestic crimes. Such information can form the basis of criminal prosecutions, but is almost never in itself introduced in court, because if it is, defendants can challenge the method of its collection. Instead, using a practice known as `parallel construction,’ the law enforcement agency reconstructs a plausible chain of evidence and inferences that can be introduced and challenged in court, that conceals the origin of the criminal case in a tip provided by the 702 database.

In January of 2018, these surveillance powers, including “Section 702”, were reauthorized by Congress for a second time, in the teeth of growing opposition from around 40% of Congressmembers and Senators.

 

Indications of Ongoing Individualized Political Surveillance

As we can see from this history, the mere fact that individualized, politically motivated domestic surveillance is illegal is not enough to stop the NSA from doing it if it wants to, and the fact that FISA is the only statutorily approved method of doing it doesn’t mean that it is in fact the only method.

The most recent evidence of such non-FISA surveillance is the whistleblower testimony of Russell Tice, who left the NSA in 2006. He depicts a highly compartmentalized program within NSA (meaning that that only a small number of people with the agency have access to it), which targeted presidential candidates Barack Obama and Hillary Clinton, House and Senate Intelligence Committee members, Supreme Court Justices, and others with significant influence over NSA’s budget and activities. There is no evidence that this program has ended since then, or that it has ever been monitored by the FISC.

 

FISA: The Final Chapter?

Returning to Carter Page, what happened to him was almost certainly legal under FISA as originally passed. From the competing memos now being released, the FBI was not fully clear with the FISC as to the fact that Steele’s firm was being paid by Fusion GPS, which in turn was being paid by the DNC. The Grassley memo suggests that the FBI represented Steele as being a reliable source past the point where they should have re-evaluated his credibility in light of his desperate efforts to share the contents of his dossier with the press. But the FBI did not appear to need the Steele dossier in order to demonstrate a sufficient basis under current law for the FISC to approve a surveillance order.

However, that doesn’t, of itself, make it OK. Even in ordinary criminal prosecutions, requiring probable cause, officers are often slack in making sure that evidence for every assertion in a warrant affidavit is soundly based. They know that, because so few cases actually go to trial, it will be rare for their lack of thoroughness to be punished, investigated, or even suspected. This case, being high-profile, is now being deconstructed in the public eye, revealing procedural failings that are common, and commonly go unpunished and unnoticed by the courts. In the context of targeting a presidential campaign adviser for surveillance, the FBI should have meticulously ensured that every t was crossed and i dotted, and they did not. They should have assessed, in particular, whether Steele’s credibility had been compromised. They should also have requested to have the source of funding for the Steele dossier unmasked as part of the FISA application process. The White House should have been especially careful to avoid even the perception of political interference with an ongoing investigation, and in both the cases of the Carter Page investigation and the Hillary Clinton investigation, it appears that they were not careful enough.

FISC is a forty-year experiment in allowing the intelligence agencies to derogate down from probable cause requirements, in the hope that allowing them some latitude would encourage them to refrain from broader abuses. That experiment has failed. The history shows that allowing the intelligence community and the FBI to subvert constitutional norms only encourages them to push further; every compromise solution is taken as permission to stretch its language to the limit, and to collect and investigate as much as possible. Politicians enable this process because they are afraid that they will be blamed after a terrorist attack if they do not give the maximum latitude possible to the intelligence agencies and law enforcement.

There is no substitute for the full requirements of the Fourth Amendment, or for scrutiny of government surveillance requests in an adversarial court process. As FISA originally intended, individuals against whom a FISA order request is granted should be able to obtain copies of the FISA application and supporting documents, just as they are already in theory able to see their FBI files.

More broadly, given how deeply the FISC has been corrupted, and the kinds of abuses it has happily acquiesced in, it may well be that its time, and the time of the Watergate compromise, have passed. We are renewing our call for a new congressional Church Committee, where Congress frankly and openly discusses what changes are needed to intelligence collection, without, as happened in the recent 702 debate, being held hostage by leaders of both parties content with the status quo. As part of that public debate, members should be especially conscious of the risks posed by political surveillance, and should codify an especially high standard for NSA and any intelligence-collecting agency when conducting surveillance of people seeking or holding political office.

Beyond this, there must be meaningful accountability for NSA agents who lie to their overseers about the surveillance that is being conducted. Congress winks at being lied to about this, and should not.

Last, elected officials will not feel obliged to honor the Constitution unless there is a serious prospect of their losing office for not doing so. Watch this space as we develop strategies to address this problem.

 


Cast and Glossary

Richard Nixon

  • Richard Nixon – 37th President of the United States, from 1969-1974
    • Resigned in the face of impending impeachment after illegally surveilling the Democratic National Committee

Russell Tice

  • Russell Tice – Former intelligence analyst for the United States Air Force, Office of Naval Intelligence, Defense Intelligence Agency (DIA), and National Security Agency (NSA)
    • Revealed in 2005 that the NSA and DIA were engaged in unlawful and unconstitutional wiretaps on presidential candidates and the Intelligence Committees

Carter Page

  • Carter Page – Former campaign advisor to the Trump campaign
    • Has been a focus of the FBI’s investigation into alleged Russian collusion by the Trump campaign

Christopher Steele

  • Christopher Steele – Former British intelligence officer
    • Authored a dossier that claims Russia maintained a file of compromising information on Donald Trump

Devin Nunes

  • Devin Nunes – Republican chair of the House Intelligence Committee
    • His staff authored a memo alleging evidence of political motivation in the acquisition of a FISA surveillance warrant that targeted a Trump advisor

Chuck Grassley

  • Chuck Grassley – Republican chair of the Senate Judiciary Committee
    • Penned a letter in January that was released this week that made similar critiques of the same FISA warrant

 

  • FISA – Foreign Intelligence Surveillance Act of 1978
    • Established procedures for the physical and electronic surveillance and collection of foreign intelligence information

  • FISC – The Foreign Intelligence Surveillance Court
    • Oversees requests for surveillance warrants by federal law enforcement and intelligence agencies

  • USA PATRIOT Act – `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001’
    • Granted new executive powers regarding ‘enemy combatants’ and gave the government broad powers to obtain ‘business records’ from companies related to someone potentially involved in terrorism

  • STELLAR WIND – An illegal surveillance program begun by the Bush administration
    • Allowed the NSA to mine large databases of the communications of American citizens

  • FISA Amendments Act of 2008 – A bill retroactively legalizing STELLAR WIND
    • Gave telecommunications companies immunity for providing access to communications data

  • Section 702 – A section of the FISA Amendments Act
    • Used as legal authority for the PRISM and UPSTREAM mass surveillance programs revealed by Edward Snowden

  • NSA – National Security Administration
    • Responsible for global monitoring, collection, and processing of information and data for foreign intelligence and counterintelligence purposes

  • FBI – The domestic intelligence and security service of the United States, and its principal federal law enforcement agency
    • Has jurisdiction over violations of more than 200 categories of federal crimes

  • “About surveillance” – Any surveillance that is “about”, but not to or from, a foreign target
    • Can often very easily include communications of American citizens

  • “Backdoor searches” – Warrantless FBI searches of NSA’s foreign intelligence database
    • Performed to find information relating to domestic crimes having no relation to terrorism

Summary

To the surprise of few, Congress is once again failing to function. Congress is in a pickle, and is structurally unable to return to anything resembling “regular order”; The reform or renewal of Section 702 (which allows the infamous ‘backdoor searches’ on American citizens) may be kicked down the road to the spring as a result; we should watch carefully who becomes the new Ranking Minority member of the House Judiciary Committee.

Background

The budget process in Congress is so broken that it has only “worked” (in the sense of having all 12 appropriations bills pass both houses on time) four times in the last forty years. Congress has increasingly relied not on the individual committees, but on the leaders of the House and Senate to pass “omnibus” appropriations bills, and to draft “continuing resolutions” (or CRs) to keep the government open in the interim at existing funding levels.

The strategy of threatening repeated shutdowns of the government, in the manner of Sen. Ted Cruz and the Freedom Caucus, has proved highly successful for Republicans. Not only have voters not punished them for it; voters have rewarded them by giving Republicans control of the House, the Senate and the Presidency. In response, the bureaucratic state – the officials in senior civil service positions – have tried to minimize the damage of shutdowns by defining which employees and departments are essential enough to not be shut down.

In practice, this means that the kinder and more laudable parts of the federal government – the national parks, help for the elderly and disabled, scientific grantmaking – get shut down, but the government’s mass surveillance programs and the bloated Department of Defense get to continue spending money like water for the sake of “national security.”

The 702 surveillance reform debate

702’s surveillance authorities expire as of December 31. All the time is being sucked up with arguments over whether there will be an omnibus spending bill, and if so, what compromises will be acceptable to both Democrats and the Freedom Caucus. The deadline to fund the government is this Friday. We’re expecting there to be a two-week “continuing resolution” Friday to give space for a broader “omnibus” spending bill to pass by December 22, enabling Congressmembers to head home for Christmas and New Year’s. So what will happen to 702?

Well, the intelligence community has begun to float the idea that maybe the legal authorities for mass surveillance don’t absolutely need to be renewed by December 31 after all. This is because mass surveillance depends on programmatic “certificates” issued by the FISA Court. These were last approved on an annual basis on April 26, giving the intelligence community potentially four extra months to persuade Congress to let them continue doing an end-run around constitutional protections for US persons before they really start to panic.

If that happens, it will provide more space for reformers as well, because of an absence of congressional consensus to formally renew these authorities. At the same time, it may be that the leadership of House Judiciary will change. John Conyers, the ranking minority member, has retired under a cloud of sexual harassment allegations. Rep. Jerrold Nadler is the acting ranking member, but it looks like ardent surveillance reformer Rep. Zoe Lofgren is thinking of challenging him for the position. If she were to become the ranking member, it would substantially brighten the prospects for real reform of 702 surveillance authorities.

Mass surveillance should be debated on its own, not reapproved quickly in the early hours of the morning at the last possible moment when nobody is looking. Four months may give us the time we need to get Congress to a better place on 702 mass surveillance.

Fixing The Problem

The hard truth is that the broad problem of the collapse of regular order in Congress is very unlikely to be fixed, because fixing it requires members of Congress to act against their immediate interests. If the recent tax bill had not been stampeded through with no hearings and no time for anybody to read it through, it would not have passed, and Republicans would have no victory to go home with to their voters. There are no votes in restoring regular order, and no officeholder will lose office as a result of Congress’s spectacular and increasing dysfunction. A president so passionately committed to process that he or she did not mind not having a policy legacy of any kind, could restore regular order by vetoing any bill not passed in a procedurally correct manner; but it seems unlikely that Congress can correct it on its own. The best we can manage is Senators who will bleat about how terrible the process is, but then vote for the result anyway.

October 5, 2017USA Liberty Act Allows FBI’s End-Run Around The Constitution To Continue

On Thursday, the House Judiciary Committee will be filing the so-called “USA
Liberty Act”, an attempt to deal with the fact that the main statutory authority for the
government’s mass surveillance programs is due to expire December 31.

The product of lengthy negotiations between ranking minority member Rep. John Conyers (DMI),
committee chair Bob Goodlatte (R-VA) and others, it unfortunately showcases that a
bipartisan solution is not always a good one.

“The least the bill could have done,” says Restore The Fourth National Chair Alex Marthews, “would have been to fix the backdoor searches problem.”1

An unknown, but probably very large, number of Americans’ communications are being collected by the NSA’s systems without a warrant ‘for foreign intelligence purposes’, and then exploited by domestic agencies like the FBI for use in ordinary criminal investigations of all kinds. It’s common for the FBI to claim a connection of an investigation to foreign intelligence or counterterrorism, even when the `connection’ is nothing more than `the suspect read something on the Internet or traveled abroad.’2

The USA Liberty Act would still allow the FBI to warrantlessly search the NSA’s stored communications based on such a claim. It says a warrant is needed if the FBI already has a domestic crime it’s investigating, and wants to find more evidence among the content of Americans’ communications held by the NSA; but (a) it requires no warrant for metadata hits anyway, and (b) those aren’t the really worrying situations.

Instead, we’re worried about the stage where the FBI doesn’t really have a crime in mind yet, but is trying to find dirt on people. It has been historically very easy for them to claim a “foreign intelligence” connection in the case of any immigrant, or a “counterterrorism” connection in the case of any Muslim; effectively, if this is codified into law, the Fourth Amendment might as well be a dead letter for such people’s online communications. Under the practice of “parallel construction”, the FBI actually starts with a person of interest, uses NSA data to find the initial evidence of a crime, and then “backfills” a plausible chain of non-NSA evidence so that their use of intelligence-derived information is not challengeable in court.3 This bill won’t fix that. Most
Americans brought up on charges based on NSA-derived information are never told where that evidence came from. We don’t even know in aggregate or in general an estimate of how many Americans NSA’s “PRISM” and “UPSTREAM” programs, governed by Section 702, have had their data warrantlessly seized; Congressmembers have been asking for six years for an estimate, and the intelligence community has stolidly refused to give one.4

This bill does some good things. For example, it extends whistleblower protections to
intelligence community contractors. It codifies a ban on so-called “about collection.” But given all we have learned as a nation about mass surveillance on us since December 2012, when this law last came up for renewal, it should at the very least require a warrant for all domestic agencies’ searches of intelligence databases.

1 For more on Restore The Fourth, see www.restorethe4th.com.
2 See, among many others, the case of Tarek Mehanna of Sudbury, MA
3 See a fuller explanation at https://en.wikipedia.org/wiki/Parallel_construction.
4 This sorry history is detailed at https://www.emptywheel.net/2017/03/17/ron-wydens-history-of-bogus-excuses-for-not-counting-702-us-person-collection.

 

Contact:
Alex Marthews
National Chair, Restore the Fourth
rt4chair@protonmail.com
781-258-2936

Jonathan Capra
Communications Chair,
Restore the Fourth
fongaboo@protonmail.com

Rulings in Ziglar and Hernandez: The Supreme Court, the Fourth Amendment and the `Special Factor’ of `National Security’

In Hernandez v. Mesa and Ziglar v. Abbasi, two just-decided cases, the Supreme Court has now made it such that individuals wishing to obtain damages from agents of the federal government for violation of their Fourth Amendment rights have very limited avenues left to do so.

These claims are called “Bivens claims”, after the 1971 Supreme Court case Bivens v. Six Unknown Federal Agents, which was a suit for damages against agents who conducted an unreasonable, warrantless search of a private home, using excessive force. Under Ziglar, any new case not closely (or even, for Justice Thomas, “precisely”) resembling the situation in Bivens must be subjected to a broad-ranging `special factors’ test as to whether the courts should `hesitate’ to create a new ground for Bivens claims. New types of claims, Ziglar suggests, should be denied if Congress has not signaled support for such claims. Bivens claims are not “a proper vehicle for altering an entity’s policy” and are “not designed to hold officers responsible for acts of their subordinates.” If brought directly against executive officials for their own actions, a successful claim would “interfere with sensitive Executive Branch functions” of policy deliberation. If the claim would involve inquiry into “national-security policy, hesitation is warranted, because that “is the prerogative of Congress and the President.” The “proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary.” This is a substantial extension from the “special factors” cited to in Bivens, which suggested hesitation only in cases involving “federal fiscal policy”, cases where the agent’s conduct was “contrary to no constitutional prohibition”, and cases where Congress had barred money damages in particular.

One issue here, among many, is that “national-security policy” now, relative to 1971, is used to cover a vast array of activities by the federal government. Infrastructure? Sure. Global warming? Absolutely. Border policy? Why not?

Beyond that, “national security” is the constant refrain of those in government who seek to conceal merely embarrassing or unpopular conduct. National security, as the Ninth Circuit has put it in this year’s `travel ban’ cases, is often used as a “talismanic incantation that, once invoked, can support any and all exercise of executive power[.]” Such talismanic uses deserve increased alertness from the courts, not increased deference. In truth, no Supreme Court decision, in our current hegemonic situation, is capable of rendering the executive unable to defend the country. Our military is well-founded and technologically advanced; there is no prospect of foreign invasion.

Since “national security” is such an interpretive inkblot, asking courts to accept or deny damages claims on the basis of it leads only to arbitrary decisions based on judges’ prior biases. One could as easily argue that detention of Muslims without charge (Ziglar) or a CBP agent shooting a Mexican teenager harms national security as hurts it. When dealing with such a protean concept, any argument is possible; Ziglar’s novel inclusion of “national security” as a “special factor counseling hesitation” is highly dangerous and overbroad.

In Hernandez¸ a 15-year-old Mexican national was shot in a culvert from across the invisible line separating the U. S. from Mexico, by a border agent, and his surviving family wished to bring a Bivens claim for damages under the Fourth Amendment. However, the Fourth Amendment is often conceived of as being primarily a collective right that pertains only to those who have acted to make themselves in some sense part of “the people” of the United States (see, for example, the plurality ruling in U. S. v. Verdugo-Urquidez [1990]). As such, it is hard to apply it on behalf of an individual who had never apparently been to the United States, nor taken any steps to render himself part of “the people.” A Guantanamo case, Boumediene v. Bush [2008], did permit non-citizens outside the US to bring a habeas corpus claim. So, when Hernandez was accepted for argument before the Supreme Court, at least four Justices wished to see the following three questions answered:

May qualified immunity be granted or denied based on facts—such as the victim’s legal status— unknown to the officer at the time of the incident?

Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)?

Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?

The Court was able to agree only on the first of these, that the government was mistaken in arguing that Agent Mesa should enjoy “qualified immunity” for his actions, because that immunity could only be based on facts known at the time. They remanded to the lower court the question of whether the claim could be asserted under Bivens in light of Ziglar, heavily hinting that “special factors” would apply.

It is hard to see how even under the new “special factors” envisioned in Ziglar, the situation in Hernandez would require denial of the Bivens claim. The aim of the suit in Hernandez is not to alter policy at the border – indeed, the Customs and Border Police, in light of this case and an analogous Ninth Circuit case, have already revised their policy. The aim of the suit is not to hold Agent Mesa’s superior officers responsible for his own actions. Congress has not barred such suits for damages. Perhaps, the Supreme Court could be viewing border control as an aspect of “national-security policy” to which the Courts should be deferential. However, in this case Agent Mesa is conceded by both sides to have acted contrary to CBP policy in shooting Sergio Hernandez, even if there are arguments about how intentionally he did so. If the Fifth Circuit finds accordingly, it would be possible, even under Ziglar, for them to conclude that a Bivens claim could proceed.

The last and largest of these three questions, on whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment, was the main topic of our brief, which argued that the history of claims by non-US persons against US government agents shows that the Constitution does not give power to its agents to arbitrarily deprive non-US persons of life. This question was only really addressed in a dissent authored by Justice Breyer and joined by Justice Ginsburg, who tried to construct a basis for allowing a claim by Hernandez’ surviving family because of the “special border-related features” and “limitroph[ic]” nature of the border in the El Paso-Ciudad Juarez area, but their arguments did not secure a majority.

To our disappointment, these rulings, rather than confronting and correcting the adverse consequences of current agency practices, defer their resolution to another day. Eventually, however, even if not explicitly in this case, the Court will have to rule on the third question above, and when they do, it will be fascinating.

obamaspyingwideTwo and a half years after Edward Snowden provided definitive proof that the US government and its allies are illegally spying on their own populations en masse, and a week before the first presidential primary in Iowa, it is troubling to me that the issue hasn’t received more lasting concern and attention, both from the public and leading presidential candidates.

One of the major roadblocks to generating the widespread and ongoing outrage that mass surveillance deserves (and that I’ve spent much of my time since June 2013 trying to generate) is the simple fact that a large part of the population has a difficult time seeing why the issue is so important. This indifference is often summed up with the phrase “If you have nothing to hide, you have nothing to fear.”

So, allow me to reach out to those in the English-speaking world who believe mass surveillance is not a problem, and explain as comprehensively as I can in a single article why you definitely have something to fear from the NSA and similar agencies, even if you think you have nothing to hide.

1. It is your right to hide parts of your life you consider private, even if they aren’t considered nefarious.

When I talk to people who don’t consider mass surveillance a problem, I like to ask if they’ll give me access to their Facebook account, as well as all of their text messages and emails. Unsurprisingly, they never want to. Many don’t even want their spouses to have that kind of access to their private information.

What this demonstrates is that having “something to hide” isn’t a sign of some severe transgression that threatens others, which the government needs to be aware of. We all want to keep intimate or embarrassing or easily misinterpreted or otherwise private aspects of our life hidden, both from strangers and those close to us.

As Glenn Greenwald explained in his book No Place to Hidescientific studies on surveillance demonstrate that it “turns insignificant actions into a source of self-judgment and anxiety.”

Children begin to seek privacy from their parents at a young age, and this desire continues for the rest of their lives, because privacy is an important part of growing up and becoming independent. As Snowden himself said in an interview, “A child born today will grow up with no conception of privacy at all. They’ll never know what it means to have a private moment to themselves, an unrecorded, unanalyzed thought. And that’s a problem because privacy matters, privacy is what allows us to determine who we are and who we want to be.”

This is very relevant to mass surveillance, given that NSA officers “on several occasions have channeled their agency’s enormous eavesdropping power to spy on love interests” and “members of the United States military working at the spy agency” like to share “sexually explicit photos” that they intercept.

The number of citizens whose highly sensitive information the NSA (and its thousands of employees and contractors) has access to is surely increasing rapidly, in an era when more and more children are having their early romantic and sexual explorations through their computers or phones.

Ask yourself whether you want the things you hide from your own parents—or that your own children hide from you—to be easily accessible by thousands of people you don’t know, working for the government.

2. Privacy is a necessary component of political activism, and society at large isn’t always right about what should be considered nefarious.

I recall reading a comment in 2013 that joked that “the US government is definitely spying on grocery baggers from Texas,” mocking users on reddit and elsewhere for their outrage towards the NSA.

Aside from the fact that average people are having their privacy violated, the argument that “I’m not important enough to be spied on, so who cares?” ignores the fact that the privacy of non-average people matters a whole lot as well.

Imagine we were talking about the First Amendment instead of the Fourth Amendment. Imagine the Obama administration decided that Bill O’Reilly’s punditry on Fox News were a threat to national economic security because it spreads unfounded doubt about the Affordable Care Act, and arrested him. Or, imagine that the Bush administration had done the same to Rachel Maddow or someone else on MSNBC, for spreading unfounded doubt about his foreign policy. I am certain that there would be widespread outrage, not just from O’Reilly’s or Maddow’s fans or ideological allies but from all parts of the population, over this flagrant and indefensible violation of their civil rights and free speech.

But an equally flagrant violation of the Bill of Rights, with equally negative effects on free speech, is taking place every day and has since the moment the Patriot Act was signed. It is simply happening in a form that is more thinly spread across the population, through the Fourth Amendment instead of the First Amendment, via the chilling effect of mass surveillance.

Every political activist, or controversial figure in any field, feels the need to hide some of what they are doing from the government or public at large, and are faced with attempts by the powers that be to access that information and use it to blackmail and/or intimidate them out of continuing their work.

History provides countless examples of this principle. The government of the time would have enjoyed access to all of Galileo’s private work and communications. It would not have been a good thing if they had it. The British government would have enjoyed more access to the founders’ private work and communications, including before the war started. It would not have been a good thing if they had it.

Using an example from the 20th century, the FBI spied on Martin Luther King, who was not an especially well-liked figure while he was alive, as part of a systemic attempt to harass and intimidate him in order to deter him from continuing his activism. Do you think the world would be a better place if they had more tools at their disposal to do so, and had been more successful?

More recently, it has been alleged that the IRS under the Obama administration unfairly targeted Tea Party groups for political reasons, and that Obama’s justice apartment arrested a controversial filmmaker in order to influence the 2012 election.

Is it hard to imagine someone in the US federal government using data collected by the NSA to blackmail or otherwise harass a Tea Party organization? Or Occupy Wall Street or Black Lives Matter protestors? How about members of Congress?

Regardless of whether you think the US government needs to go harder in its fight against ISIS, or distance itself from Israel, or repeal Obamacare, or transition from Obamacare to single-payer, ask yourself how it must affect the activists making that case to know the administration is spying on them and all of their private communications.

3. Those employing mass surveillance are doing so irresponsibly, and illegally.

Suppose you weren’t convinced by the arguments I’ve made so far, and the idea that the US federal government can access anyone’s private information isn’t itself troubling to you. I want you to think about how it got that power, and who is wielding it.

The Patriot Act was signed into law by George W. Bush, whose administration was mired in scandal and law-breaking, as even Republicans today can admit. Since 2009, those powers have been wielded by the equally controversial Obama administration, which couldn’t even competently launch a website for people to find health insurance on. I don’t know many people who consider either of those administrations to be full of competent, trustworthy people, let alone both.

Looking at the NSA specifically, consider that in the 12 years between the signing of the Patriot Act and Snowden’s leaks, those running it consistently lied both to the American people and Congress about what they were doing. Shortly before Snowden’s leaks in 2013, Director of National Intelligence Jim Clapper testified that the government does not “wittingly” collect “any type of data at all on millions or hundreds of millions of Americans.” The year before, NSA director Keith Alexander told Congress, under oath, that “We’re not authorized to do it [data collection on US citizens], nor do we do it.”

Also consider that the very person who wrote the Patriot Act doesn’t consider the NSA’s activities to be a justified application of it, and that those activities are a flagrant violation of the Fourth Amendment, as written. I welcome those who believe mass surveillance is justified to advocate amending the constitution to allow for it.

Consider that backdoors put into technology so that that government can access it has already created security issues that makes our information vulnerable to foreign hackers.

Even if you think what the NSA is doing could be justified, ask yourself whether you trust the people actually doing it to wield that kind of power, or whether you mind that they’re violating the constitution and committing perjury by doing so.

Also ask yourself whether you think it’s sensible to trust Barack Obama (or Hillary Clinton, or Bernie Sanders, or Donald Trump, or Ted Cruz, or Marco Rubio, or all the people each of them choose to appoint) full access to the data you enter into your phone, tablet, or computer, as well as that of every political commentator or activist that you support, and that of everyone in the United States or allied countries, or who communicates with those who are. I am going to guess that you would not trust a majority of those six people, if any of them, with that kind of power.

So isn’t it extremely troubling that it was secretly and illegally given to the office that Obama holds, and that one of those five other people will most likely hold a year from now?

4. Mass surveillance does not make us safe.

In December 2013, a member of the White House’s own review panel on the NSA admitted to a “lack of evidence that the bulk collection of telephone call records had thwarted any terrorist attacks.” In a report published in May last year, the Justice Department failed to find any instances of surveillance under the Patriot Act preventing an attack or making any meaningful strides to fight terrorist organizations. And Alexander himself has admitted that claims the NSA has stopped a large number of terrorist attacks were fabrications.

If there is any good evidence that the NSA is doing anything at all helpful to fighting ISIS, it certainly hasn’t been made public.

When the men responsible for the Boston Bombing were apprehended in April 2013, it was due to footage from a security camera filming a public area, and a massive ground search of the area by the Boston Police Department, not the NSA reading their emails or tracking their phone calls without a warrant. Osama Bin Laden’s compound in Abbottabad was located based on reports of people living in Pakistan, and these claims were confirmed based on video surveillance of that particular location. Bin Laden did not, not as far as I know, have a Facebook account.

In fact, the Russian government had warned the FBI about the Tsarnaevs two years earlier, and the US government failed to do anything with this easily and legally obtained intelligence, just as the Bush administration failed to act on intelligence warning it about Osama Bin Laden’s plans to attack the US by hijacking airplanes. What good does adding expensive, elaborate intelligence-gathering methods do when the US government has repeatedly failed to process and utilize the much more valuable intelligence provided to it elsewhere?

Adding unnecessary intelligence can actually make it harder to identify threats, because it makes it harder to determine what is useful and relevant. Additionally, violating the constitution and spying on allies reduces the US’s credibility and trustworthiness, making international cooperation in fighting terrorism more difficult.

Yet, the NSA’s annual budget is over $10 billion. That’s about $100 for every family in the United States, or the annual salary of about 250 000 US soldiers, or 180 000 high school teachers.

That’s how much every American is paying the NSA to violate our privacy and the Bill of Rights, while stifling free speech and completely failing to make you and your family any safer.

Ask yourself if you think you’re getting your money’s worth. I think you’ll agree with me that you aren’t. I think you’ll agree that the NSA is doing a whole lot more damage than good.

Whether you are a liberal, socialist, conservative, libertarian, moderate, or any other political ideology besides an admitted supporter of totalitarianism, you should be able to understand that illegal mass surveillance gives you a whole lot to fear. I hope that this article has made that easier, and that you will now join me in fighting it.