Civil liberty activists and privacy groups are filing emergency petitions with the U.S. Supreme Court to stop the National Security Agency’s domestic surveillance program that collects the telephone records of millions of Americans.
With that underway it becomes increasingly evident that it is not the Supreme Court that has the final say on such issues but another agency altogether; the Foreign Intelligence Surveillance, or FISA, has become the ultimate arbiter on surveillance issues, a virtual parallel Supreme Court acting with almost no public scrutiny.
It may be reasonable to argue that the fight against terrorism implies certain restrictions of civil liberties but then the U.S. authorities should publicly acknowledge that and stop using the notion of “human rights” as a lever to exert political pressure on others.
Two stories in The New York Times over the weekend shed a new light on the whole issue of NSA surveillance. According to one, a privacy rights group, the Electronic Privacy Information Center, plans to file an emergency petition with the Supreme Court on Monday asking it to stop the National Security Agency’s domestic surveillance program collecting the telephone records of millions of Americans.
Parallel lawsuits have been filed by the American Civil Liberties Union and Larry Klayman, a conservative lawyer who runs a group called Freedom Watch.
A separate story reveals a dire reality leading to the conclusion that lawsuits filed in courts open to public scrutiny are doomed to fail.
Over the last six years, since major changes in legislation and greater judicial oversight of intelligence operations were instituted, the Supreme Court and to a lesser extent the lower federal courts, have virtually no say in matters of this kind.
The Foreign Intelligence Surveillance (FISA) court, used to focus mainly on approving case-by-case wiretapping orders.
In the last six years however it has attained much wider powers, becoming almost a parallel Supreme Court, acting as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape future intelligence practices for years to come.
In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency powers to amass vast collections of data on Americans and not just in the pursuit of terrorist suspects but also people thought to be involved in nuclear proliferation, espionage and cyber attacks.
What is most important is that the court acts with almost no public scrutiny, making decisions and establishing judicial precedents in secret. As revealed by Edward Snowden’s leaked documents, the FISA court authorised the collection of all phone-tracing data from Verizon business customers, in other words, from millions of Americans.
Even putting aside the question of whether the FISA and NSA regard all Verizon customers as potential terrorists, nuclear proliferators, spies and/or hackers, another question is hard to avoid; how do U.S. authorities reconcile two contradicting principles? First the need to protect the nation from terrorist and other attacks, second, the requirement to uphold basic human rights such as privacy and civil liberties.
It may be a reasonable (though arguable) contention that the need to protect citizens inevitably implies certain limitations, even if we are prepared to ignore Benjamin Franklin’s words, “Those who sacrifice liberty for security deserve neither.”
If this is the case and, if two U.S. administrations have effectively decided that security is indeed worth the price of liberty, then why are U.S. authorities so keen to deploy the notion of “human rights” as a political tool against others who fail to live up to U.S. standards? Isn’t it time for America to spend a little time looking inwards, at its own problems before, “fixing” others?
Boris Volkhonsky, senior research fellow, Russian Institute for Strategic Studies
Voice of Russia