After hundreds of billions of dollars spent and no quantifiable gains, Orwellian homeland surveillance project may get the ax

Fast eroding is the false pretense that seizing business records of millions of Americans and countless more foreigners under digital age mass search and seizures somehow "protects America."  And now thanks to a critical standoff in the U.S. Senate and a pivotal ruling in the federal court system, seizures under the so-called "PATRIOT Act" may finally be gone for now, if not forgotten.

I. Costly Policy

For nearly a decade and a half America has been in grip of a widely criticized program of mass domestic spying.  Under this program the constitutional protections of due process have been nullified and replaced by rubber stamp approvals by America's spy agencies.  While the effects to Americans' freedoms are a topic of continual debate, it is unquestionable that these programs have carried a tremendous cost in dollars and cents.

Since 9/11 propelled them into place, these procedures have enabled the U.S. federal government to levy hundreds of billions of dollars in taxes and debt to pay for massive programs of warrantless wiretapping, mass metadata collection, and other forms of domestic surveillance.  That cost will live on even if the programs themselves are struck down.

All Seeing Eye
[Image Source: Business Insider]

But at long last the sun appears to be setting on these pricey police state programs.  And that means the once boundless flow of wasteful spending backed by a collusive effort from the nation's ruling national parties is on the verge of elimination and with it the clear and present danger posed to civil liberties.

History may credit the U.S. Senate with the death of the domestic surveillance authorizations.  Prior to Memorial Day weekend a deeply divided U.S. Senate narrowly struck down repeated efforts to extend these Orwellian programs.  And as of Memorial Day weekend the opponents of mass spying appear to be holding firm in their resolve and opposition to the controversial warrantless spying allowances.


The pivotal votes in the Senate came hot on the heels of a damning piece of evidence from the bowels of the U.S. Department of Justice (DOJ) itself.  The Office of the Inspector General (OIG) -- headed by IG Michael E. Horowitz -- produced a report scrutinizing PATRIOT Act records seizures.  

Its critical conclusion?  Mass search and seizures have been statistically shown to be useless at fighting both terrorism and domestic crime in general.

II. FBI: Warrantless Surveillance Failed to Quantifiably Crack a Single Case

In the 77-page audit report, the OIG -- responsible for scrutinizing the successes and failures of the DOJ's programs -- reveals that agents at the U.S. Federal Bureau of Investigation (FBI) were unable to recall a single case that was cracked by the 2001 USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act).

More specifically the OIG questioned agents about the ballooning use of Section 215 (50 U.S.C. § 1861) orders -- a commonly used tool created by the PATRIOT Act that allows for the mass seizure of "tangible things."  In practice, the "things" seized via mass search warrants are typically business records, containing the confidential data of millions of Americans.  The procedure was also used to eliminate the typically due process procedure required for wiretapping American citizens or businesses.

FBI agents
FBI agents admitted that PATRIOT Act orders hadn't cracked a single case and that they continued to reply on good old fashioned police work in spite of the ongoing (over)use of PATRIOT Act largely fruitless warrants. [Image Source: Global Elite]

While Section 215 seizures became a much discussed issue following revelations that the U.S. National Security Agency (NSA) was using them to collect cell phone metadata en masse, the FBI also uses them to collect a variety of other data, including banking records and medical records.

But it turns out for all these seemingly unconstitutional searches and seizures of private business data -- most of which target law-abiding Americans never convicted of a crime -- Section 215 orders have yet to crack a single case.  The OIG reports:

The agents we interviewed did not identify any major case developments that resulted from the records obtained in response to Section 215 orders, but told us that the authority is valuable when it is the only means to obtain certain information.

But if Section 215 orders fail to actually help fight crime, what are they really being used for?  Poltical suppression?  Financial manipulation?  It's a provocative question and one the federal government seems to have no factual answer for.

Secret Courts
Most FISA mass warrants are sealed and inaccessible to the public. [Image Source: Before Its News]

And the public is unable to draw their own conclusions via the one particularly insidious aspect of the Section 215 orders -- they're sealed by the government and seldom released.  This has led to the orders being referred to as "secret court" rulings, as the public has no ready access to them.  In the rare case where lawsuits have forced Section 215 requests into the light of day, they're typically so heavily redacted that the domestic spies at the NSA and FBI are able to obfuscate what the true scope and intentions behind the orders were.

However, it's widely reported that both the Bush and Obama administrations used the orders for political purposes, including to spy on Tea Party and Occupy Wall Street activists.

III. The Slippery Business of Campaign Promises

And for all its promises of ending the mass surveillance programs that largely launched in the Bush era via the PATRIOT Act, the OIG report also makes it clear that President Barack Hussein Obama II and his deputies have done quite the opposite.  Instead of scaling back the Orwellian surveillance orders as the President promised and has regularly claimed to have been doing, instead, increasing the volume of Section 215 seizures.

Between 2006 and 2009 -- the stretch that includes the Obama administration's first two years in charge of the executive branch -- orders doubled from the 2001-2005 period.  But the government's ability to commit mass search and seizures by Congressionally authorized, if unconstitutional, is almost at and end, with Section 215 authorizations expiring on June 1.

The death blow to the PATRIOT Act domestic spying program may already have been witnessed.  It comes thanks to a sharp shift over the past several years in the U.S. Senate.

Back in 2006 Senate was heavily in the grips of post-9/11 fervor and was nearly unilaterally -- and according to some, blindly -- in support of domestic spying for the ostensible purpose of "fighting terror.  A coalition that included then-Senator Barack Obama (D-Ill.) and then-Senator Hillary Rodham Clinton (D-New York) easily passed the U.S.A. PATRIOT Act Additional Reauthorizing Amendments Act of 2006 by a resounding 95-4 margin.  The only minor opposition came via a small minority contingent of Democrats in the Senate and House.

Of course, it was impossible to tell whether the younger Senator Obama and Senator Clinton were simply naievely following the party line or whether this support was merely a nod to mass fear that was gripping the American public at the time.  After all, back then it was risky business to vocally opposed the PATRIOT Act and only a few were brave enough to voice such opposition.

IV. The Brave Few

One of those brave few who fought the fight early on was retired Texas Republican Rep. Ronald Ernest "Ron" Paul (R, Texas, 14th District).  Not only was Rep. Paul the only Republican Congressman to vote against the original PATRIOT Act in 2001, when it was put up for renewal in 2006, he again found himself taking a stand that few of his party colleagues dared take.

In 2006 he was not alone in voting against renewal, but he was certainly in the gross minority.  In total only 12 other House Republicans opted to side with the 124 Democrats in the house who formed the far bigger chunk minority "nay" vote.  In a fiery editorial for back in 2005, Rep. Paul blasted his party colleagues for their failure to stand up against the erosion of civil liberties.

And in a narrative that would repeat with respect to subsequent renewals he would lambaste the attempt to lean on the crutch argument that the reauthorization would install additional "checks" to supposedly prevent abuse.  Checks, he would argue, were immaterial when the base law itself was antithetical to the U.S. Constitution.

He wrote:

The tired arguments we're hearing today are that same ones we heard in 2001 when the PATRIOT Act was passed in the emotional aftermath of the Sept. 11 terrorist attacks. If the PATRIOT Act is constitutional and badly needed, as its proponents swear, why were sunset provisions included at all? If it's unconstitutional and pernicious, why not abolish it immediately? All of this nonsense about sunsets and reauthorizations merely distracts us from the real issue, which is personal liberty. America was not founded on a promise of security; it was founded on a promise of personal liberty to pursue happiness.

Paul fought the PATRIOT Act at a time when few dared to challenge it; at a time when it was very unpopular to do so.  But in time the dissenting opinion he sewed would blossom into a growing opposition in Congress.

V. A Growing Voice of Dissent

In 2011 the PATRIOT Act was yet again on the verge of expiring, but Obama -- now President -- rallied both ruling parties behind yet another extension, similar to the one Obama himself had cast a vote for just five years ago.  Dubbed the PATRIOT Sunsets Extension Act of 2011, the pitch from Obama was nearly identical to the pitch made by Bush in 2006.  Again, it was justified by vague factually flawed statements that mass spying would ensure "safety" of the homeland.  And again the ruling National Parties sought to quell dissent by promising additional limitations to these mass spying programs.

This time around a few more took heed of the fact that those arguments were, in the words of Paul both "tired... nonsense."

This time around Republican opposition in the House nearly tripled, with 30 Republican Represenatives joining Rep. Paul and 122 Democrats in the House in voting "Nay".  The bill past, but by narrower 250-153 and 72-23 margins in the U.S. House and U.S. Senate, respectively.  Gone was the appearance of solidarity and unilateral support of the PATRIOT Act.

Among the near-quarter of Senators to vote against reapproving the PATRIOT Act in 2011 were both of Vermont's Senators -- incumbent veteran Democrat Patrick Joseph Leahy and newly elected Independent/Democrat Bernard "Bernie" Sanders.

And in Kentucky an even more intriguing division had arisen.  Incumbent veteran Kentucky Republican Senator Addison Mitchell "Mitch" McConnell, Jr. was challenged by none other than Rep. Paul's son, Randal Howard "Rand" Paul who had won a heated Senate race earlier that year to become one of the Senate's youngest additions.  The juxtaposition between McConnell -- narrowly aligned with the pro-spying Democratic President -- and the independent, outspoken Rand Paul would prove a crucial one in time.

And while two generations of Pauls, along with Leahy and Sanders, were unable to muster enough opposition to strike down the PATRIOT Act in 2011, their opposition resonated with a young contractor named Edward Joseph "Ed" Snowden.

VI. Self-Inflicted

But before considering Snowden's role to come, it's important to highlight that his role in the debate was ultimately fueled by the Obama administration's own overreach.  Therein lies perhaps the most bitter irony for President Obama, Senator McConnell, and other proponents of mass domestic spying, should recent defeats hold up -- their actions fueled the fire that may yet have burned the government's warrantless spying structure to the ground.

The same holds true of Ron Paul and a handful of Democratic defectors.  While they may have planted the seeds of dissent in 2006 and 2011, it was ultimately the program's own flaws that watered the seed of opposition, allowing it to blossom into full-fledged civil war within the parties.

Perhaps had the Obama administration not petitioned the freshly formed FISA court to remove Bush-era limitations on the scope of spying, perhaps the Orwellian programs would have survived longer -- or a bit longer, at least.  Perhaps if the McConnell and Obama contingent had not clutched quite so tightly in their efforts to funnel untold hundreds of billions into special-interests-laden intelligence black budgets in support of mass domestic spying, perhaps then the controversial programs would have quietly continued.

But that was not to be.  And as Obama pushed to ratchet up spending on domestic spying disaster struck.  For the Obama administration disaster, as history would show, had a name and that name was "Snowden".

VII. Modern "McCarthyism"

Snowden like many found himself enamored in 2007 by President Obama's promises of a less wasteful federal budget and less Orwellian domestic spying.  But unlike most Americans, Snowden had a first-hand view of the depths to which the administration he had helped vote into office betrayed those promises.

Rather than sit idle or resign, he channeled his bitterness at that betrayal into a campaign of singular pragmatism.  Unlike many who take their oath of duty casually, Snowden -- by his own accounting -- felt strongly that the oaths he swore to when becoming an intelligence analyst compelled him to protect the Constitution above all lesser laws.

He would later recount that what he saw crystallized his resolve and determination to perform his patriotic duty to protect and uphold the Constitution.  And to him, that duty meant blowing the whistle on unconstitutional spying by any means possible.  He vowed to show the public the depths of betrayal and the downright scary scope of the American spying machine that the President was building atop the foundations inherited from his predecessor.

But the odds were stacked against him.  By 2013 when Snowden went public, the Obama administration according to official records (as noted by The Guardian) had charged more than twice as many whistleblowers under the seldom used Espionage Act of 1917 (18 U.S.C. § 792) as the sixteen administrations before him.

Top British newspaper The Guardian went as far as to suggest that we were witnessing a modern era "McCarthyism" in terms of the efforts to suppress whistleblowers.  A 2014 piece in The Nation offers up similar thoughts, in examining Hillary Clinton's role in prosecuting whistleblowers as Obama's former Secretary of State.

VIII. Snowden Showed That You Can't Fool Kill an Idea

But as would prove abundantly apparent in the weeks and months to come, Ed Snowden possessed far more cunning and craft than many of his more ill fated brethren.  While it's impossible to say how many other would be Snowdens had come before, the numbers would suggest Snowden was not alone in his feelings of betrayal at the nation's decision to turn its mass warrants inward against its own citizens.  The only difference between Snowden and other would be leakers?  Snowden was craftier.

Kill an idea?
The Obama administration used whistleblower prosecutions to try to prevent this very kind of criticism.  But you can't kill an idea. [Image Source: Alan Moore/David Lloyd]

After a couple of initial close calls, things would quickly accelerate as Snowden moved with deliberate purpose and secret brilliance.  From 2009 to early 2013 he slowly amassed a shocking stockpile of secrets.  Realizing that no single ground level employee had the access to gain this trove, Snowden slowly worked his government and contractor colleagues to amass a wealth of login credentials which he would use to mine the NSA's computer networks and harvest the blueprints of the Obama administration spy machine.

He did all this while impressing his private sector colleagues with seemingly impeccable work.  At Dell he was rewarded with a lead technologist position at the NSA information sharing office in Hawaii.  And all that success was even more remarkable given that he lacked a college degree -- traditionally a requirement for positions such as his.

Thus, it came about that the hubris and ambition of the Obama administration spying program gloriously backfired in May 2013, when Snowden sacrificed a comfortable life with his girlfriend and his six figure job in a tropical paradise to let his fellow Americans know the truth.

Edward Snowden
Edward Snowden proved to crafty for the Obama administration's anti-whistleblower traps.
[Image Source: The Guardian]

In the eyes of the Obama administration, Snowden became the latest criminal whistleblower to taxpaying Americans how their money was being spent and revealing to the U.S. Senate secrets that of the spying program that even they had allegedly lacked knowledged of.

But unlike the untold scores of whistleblowers that it had successfully silenced before him, this time around the administration's charges fell flat.  The ever crafty Snowden had fled the country, escaping to Hong Kong.  Even as he continued to pass documents to reputable news outlets in the U.S., Britain, and Germany, he managed to evade U.S. spies and arrive in Russia -- the only nation that was brazen enough to promise him asylum.

And while the decision to seek shelter in a nation known for its own Orwellian campaigns against public freedom might be ironic, it was pragmatic one.  Instead of being silenced under court gag order, safe under asylum Snowden would prove an unsilenceable, perpetual voice of criticism over the past two years.

IX. Plan to Privatize Domestic Spying Advances

But for all Snowden did, it's important that the Obama administration recognize that this man did not kill their domestic spying program.  Rather, he only played a pivotal role in exposing its double-talk to the daylight.  

Nay, in the end it was unquestionably the administration's own overreach that not only convinced Snowden to leak, but which were highlighted in ugly detail in the leaks. And it was that same overreach that catalyzed opposition in the U.S. Senate.

You can speak of Pauls and Snowdens who planted the seeds of the tree of opposition against the domestic spying program.  But it was the Obama (and Bush) administrations whose hubris and defiance of accountability watered that tree of patriotic insurrection until it was strong enough to bear fruit.

Even earlier this month, though, it remained to be seen whether that tree of dissent had truly reached maturity.  On May 13 critics of domestic spying and the PATRIOT Act failed to muster resistance against renewal in the U.S. House.  Instead, under the watchful endorsement of ruling National Parties and vocal support from the staff of President Obama, the USA Freedom Act passed by a resounding 338-88 margin -- a broader margin than even the 2006 and 2011 renewals had enjoyed in the House.

Logistically the House's USA Freedom Act -- a radically different law than the similarly named bill from the Senate that would ostensibly outlaw Section 215 -- would implement President Obama's long desired roadmap for domestic spying.  Under it data would continue to be collected at a massive pace, but responsibility for collection and storage would shift to private sector contractors.

More specifically, the plan called for telecommunications companies to act as compulsory contractors to the federal government, harvesting masses of data/metadata and providing spying services including warrantless wiretapping.  In exchange they would receive taxpayer funded kickbacks and protection from citizen lawsuits.  At the same time the law would introduce some perfunctory hurdles making it a bit harder for analysts at the NSA, FBI, and other federal agencies to get their hands on Americans' data without the use of a traditional warrant.

X. Soft Rebellion in the Senate

But in the Senate if hit the roadblock of growing opposition to domestic spying.

Critics, however, in the senate would argue that the safeguards would do little to limit federal spying, adding that all the third party storage proposal would only serve to make said spying into a greater special interest payout.  In their eyes the bill, for all intents and purposes, preserved the status quo with regards to spying, or perhaps even made it a bit worse in some ways.

Where the U.S. House had largely bowed to the Obama administration's vague justifications of prolonging and expanding domestic spying programs that had been abject failures by all quantifiable metrics in terms of their supposed purpose (antiterrorism), the U.S. Senate saw far more scathing criticisms.  Last year officials with the NSA and the U.S. Director of National Intelligence (DNI) (which oversees the NSA, FBI, and other federal police/spying organizations) were blasted by Senator Sanders and others after refusing to say whether the NSA was spying on Congressional communications.  (The NSA would go on to in effect imply that it was.)

Many in the Senate seemed disturbed to only learn details of the NSA's secret dragnet, via a third party -- Snowden.  Many in the Senate made it clear that they were kept unaware of the details of that program, details revealed in leaked documents.  Indeed, they indicated that they were as in the dark as the rest of us when it came to many controversial police state actions taken against law abiding Americans.  

The idea that their authorizations were being employed to put the financial safety of U.S. companies and taxpayers at like at risk, by paying cybercriminals to discover vulnerabilities in commonly used software was among the shocking discoveries.  The realization that the NSA was then employing these ill-gotten back-doors to reap the data of hundreds of thousands, if not millions of Americans most of whom had never committed a crime, heightened some Senators feeling that a terrible mistake had been made.

XI. Billions Spent, Nothing Gained

Meanwhile the Obama administration and DNI fumbled in their attempts to convince the Senate that circumventing due process and enacting Orwellian mass spying was a neccessity to prevent terror.  Retired Gen. James Clapper, now the Director of National Intelligence (DNI) in a March 2013 hearing claimed that the NSA was not actually collecting data on millions of Americans -- a claim he would later walk back.

In separate testimony around the same time, Gen. Keith Brian Alexander -- then departing head of the NSA -- claimed that PATRIOT Act mass data collection had stopped terrorist attacks.  He stated under oath:

It's dozens of terrorist events that these [spying programs] have helped prevent, from my perspective.

Ask to clarify how many, he would later throw out the claim that the spying programs foiled 54 assassination attempts or terrorist plots.  That number eventually was downgraded, until Alexander eventually conceded that at best the mass spying programs "maybe" stopped one or two "plots" after spending (or blowing?) close to $300B USD in less than half a decade.

Indeed, domestic spying programs proved fruitless as stopping the 2013 Boston Bombing -- the worst foreign terrorist attack on American soil since 9/11.  And audits show they were equally fruitless and cracking the case when it came to numerous foiled plots that were ultimately prevented via traditional Constitutionally sounded warrant-backed due process.

Ultimately, NSA officials and others have admitted the ugly truth confirmed yet again by FBI agents -- the programs likely have not stopped even one attack for all their dangerous erosions of due process and vast payouts to special interests.

On the other hand, they have admitted that the agents executing these mass spying programs did "accidentally" break the law thousands of times per year.  The record shows not only that the mass spying proved useless at protecting, but that federal agents ultimately were incapable of even obeying their own supposed legal limitations in the face of the nebulous regulatory policy replacement to traditional due process.  And moreover, in spite of these "careless" betrayals of the taxpayers footing the bills and the laws they swore to follow, analysts who broke the law seldom faced any serious reprecussions, the record shows.

And while the U.S. House seemed willfully ignorant to that sad truth -- or at least willing to egregiously overlook it -- the Senate at last appeared a little less tolerant of such gross and costly failure.  Imagine if such leniency to the millions of Americans who found themselves on the wrong side of the even more expensive "War on Drugs"!  Alas, the record shows that justice in America is lopsided with federal intelligence analysts being treated in effect as being above the rule of law that applies to ordinary Americans.

XII. Senate to PATRIOT Act Renewal: You Shall Not Pass

That inequality did not resonate well with some in the Senate.  Led by a pair of presidential hopefuls -- Sens. Bernie Sanders and Ron Paul -- the Senate at last broke with the Obama administration when it came to renewing the PATRIOT Act yet again.

In Saturday morning votes in the U.S. Senate an odd bipartisan coalition of the more independent-minded elements of the U.S. Senate rallied to strike down that extension.  The final vote tally was 57-42, three votes shy of the 60 votes needed to form a majority and pass the bill.

After seeing their initial hopes of passing an extension dashed, supporters of the domestic spying bill desparately proposed a two month extension to the PATRIOT Act to "allow for debate".  The apparent hope was that by buying time the pro-PATRIOT Act contingent might be able to bring the power of America's two ruling National Parties to bear in support of a renewal, putting pressure on their nonconformant Senators to fall into line.  Instead that hope was shattered when the extension was voted down by a razer thin 54-45 margin.

For Sen. Paul -- who last year took the seemingly unthinkable step of suing the federal government in hopes of stopping domestic surveillance -- this was a heady victory.  During the debate he channeled his father, commenting:

We have entered into a momentous debate.  This is a debate about whether a warrant with a single name of a single company can be used to collect all of the phone records of all of the people in our country with a single warrant. Our forefathers would be aghast.

After Sen. Paul rallied support to successfully strike down Senate majority leader McConnell's desparate ploy to extend the spying law to June 8, McConnell proposed an extension until June 5.  This time it was Oregon Democratic Senator Ronald Lee "Ron" Wyden who led the nays.

Not done McConnell proposed an extension to June 3 and then June 2 -- a seemingly comical one day extension.  But even those attempts to achieve some sort of victory for the pro-spying crowd were resoundingly rejected by the narrow bipartisan majority.

CNN's political reporters recall the exchanges between McConnell and his most vocal foes -- Sens. Paul and Wyden, plus New Mexico Democratic Senator Martin Trevor Heinrich -- summarizing:

Senators, who throughout the week generally thought a short-term extension would eventually be approved, appeared stunned by the swift exchanges between McConnell and the three opponents of the program. Gasps were audible.

Clearly this defeat came as a shock to some even amid the apparent rising rancor in the Senate over the domestic spying efforts.

XIII. A Precarious Victory

The victory is precarious.  Humbled, but stubborn, Sen. McConnell rallied the pro-spying camp, making a familiar emotional appeal early in the a.m. on Sunday:

We'll be back on Sunday, May 31, one more opportunity to act responsibly to not allow this program to expire.  This is a high-threat period. We know what's going on overseas. We know what's been tried here at home. My colleagues, do we really want this law to expire?

New Jersey Governor and presidential hopeful, Gov. Christopher James "Chris" Christie (R) released a statement backing McConnell and lashing out at Sen. Paul.  The governor -- whose closest advisors are currently facing conspiracy, fraud, and corruption charges over a bizarre scheme that involved illegally closing a high traffic bridge to New York to punish a local political rival -- felt compelled to cast his lot in support of the pro-surveillance crowd.  He commented to CNN:

The Senate's failure to extend the Patriot Act is a failure of the U.S. government to perform its most important function: protecting its citizens from harm.  This is the unfortunate result of misguided ideologues who have no real world experience in fighting terrorism putting their uninformed beliefs above the safety and security of our citizens. This dysfunction is what we have come to expect from Washington, D.C., but usually it does not have such dangerous and severe consequences.

The White House, meanwhile, reportedly conducted "outreach" to try win the hearts and minds (so to speak) of Democrats in the Senate, but publicly they were quiet regarding the prospect of a possible end to the authorizations that it claimed permitted the President's massive domestic spying program.

XIV. What Will Change

If the "nay" vote can survive the Presidential pressure and the efforts of McConnell, Christie, and other Republican supporters, Section 215's search and seizure provisions will be axed.

So too will be the less visible "rolling warrant" provision that allowed the FBI and other agencies to obtain a blanket warrant against a single suspect to broadly track their digital activities -- a provision claimed to be a tool against the use of disposable prepaid phones.  The loss of that tool sounds potentially dangerous, but in practice will likely have little effect given that prepaid cell phones are already tightly regulated by other existing laws, according to most legal experts.

Also on the block will be special "lone wolf" laws that are used to authorize warrantless tracking of single suspects not known to be associated or influenced by a group of terrorists.  That provision appears somewhat overblown as the colloquial "lone wolf" such as isolated Islamic extremists would still likely fall under the scope of other anti-terror laws and provisions, given their consumption of extremist propoganda online.

Other parts of the PATRIOT Act have already expired.  Alternatively, some provisions may survive should Section 215 be stricken from America's code of law.

XV. The Second Court Ruling

And then there's the court track.

Regardless of the outcome of the Senate debate, efforts to outlaw warrantless domestic spying recently advanced on a second front as well.  Earlier this month, a three judge panel at the U.S. Court of Appeals for the Second Circuit (CA2) released a 97-page decision earlier this month.

The ruling states that Section 215 records seizures violate the Constitutional guarantee of due process.  The ruling reverses the decision by Federal Judge William H. Pauley, III of the U.S. District Court for the Southern District of New York (NYSD-USC) which would have declared the U.S. National Security Agency's (NSA) sweeping domestic surveillance programs to be legal.

There's reason to believe that the ruling may not survive its seemingly inevitable review by the Supreme Court of the United States (SCOTUS).  Notably this isn't the first time the CA2 reversed a NYSD-USC ruling to find NSA spying unconstitutional.

Back in 2008 Amnesty International USA and several other media/nonprofit groups filed suit against the NSA over its surveillance dragnet.  Before the SDNY federal court in 2009, the surveillance was deemed not to have violated Fourth Amendment protections against "unreasonable search and seizures", as it was ruled that the plaintiffs could not prove that they had been spied upon.  Two years later in 2011, CA2 ruled that the plaintiffs did have "reasonable fear of future injury."

But just as it appeared the NSA might be dinged by the courts for the first time, the
Supreme Court of the United States (SCOTUS) heard a government appeal in 2012.  And in a closely divided 5-4 ruling [PDF] in Feb. 2013 the Supreme Court concluded the CA2 had erred and that the mass spying was lawful.

So one must take a cynical view of the longevity of the latest ruling, given that some have viewed the 2013 ruling as "a carte blanche" authorization of warrantless spying by the nation's highest court.

On the flip side, there's some potential that this time around things could go differently.  Notably, the last case dealt with the issue of mass spying on foreigners.  The current ruling deals with mass spying on American citizens who are more strongly protected -- accordign to numerous precedents -- under the U.S. Constitution.  Also, the party arguing the anti-spying case -- the American Civil Liberties Union (ACLU) -- has been more successful before the high court winning recent cases relating to GPS tracking and warrantless property invasion (in 2012); warrantless phone searches (2014); and continuous video surveillance without warrant (2014).

In light of those victories it would be equally unsurprising for the ACLU to see a narrow win that would strike down or otherwise limit spying under Section 215.

XVI. You Can Fool Some of the People Some of the Time

Ultimately only time will tell if the court path or legislative path are able to strike down Section 215 and its warrantless mass search and seizures.  But there's an increasing sense that regardless of these immediate outcomes the tide is turning when it comes to domestic spying.

After nearly a decade and a half of controversy and criticism, America may finally find a way to free itself from the expense and philosophical risk of mass spying.  If it can, that will mean that law enforcement will have to return to the good old fashioned tried and true route of due process.

That's a big shift politically, but in terms of national security there's little cause for concern.

McConnell and others are sounding shrill alarmist tone.  Earlier this month when reviewing the far different Senate version of the U.S.A. Freedom Act -- which sought to end Section 215 permissions -- Sen. McConnell claimed:

Section 215 helps us find a needle in the haystack.  But under the U.S.A. Freedom Act, there might not be a haystack at all.

The latter statement both sides will agree is fairly forthright.  But as to the former statement -- that overturning mass warrantless spying somehow will enable terrorism, it's laughable at best and deviously duplicit at worst.  As the NSA in Senate testimony and FBI (via the DOJ's OIG audit) have confirmed mass warrantless spying has been a mass warrantless failure to date with nary a confirmed foiled plot.

And if hundreds of billions of dollars and nearly a decade and a half were unable to produce a single verifiable success story for domestic spying, it's laughable to think that they will in decades to come.  That alarmist narrative may align well with Sen. McConnell's well-heeled special interest backers.  But to anyone claiming to be an independent observer, it's a laughable claim.

At long last the U.S. Senate appears to be on the verge of realizing that reality and making the bold move of striking down these unconstitutional programs.  Such a move would mark a historic validation of the the complaints and efforts of Snowden and many other less fortunate whistleblowers.  It may be overdue, but given the collusive support for these programs have enjoyed from America's ruling parties and their backing by deep pocketed special interests who stand to profit off them, it's understandable why it would take so long to strike down a law that so many have so ardently opposed.

Sources: CNN, USA Today, OIG, via ZDNet

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