Bush wiretapping NSA FISA

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." -The Fourth Amendment of the United States Constitution

Late last night, a report was released about the Congressional investigation of unprecedented domestic spying and wiretapping programs secretly implemented by the Bush administration in the aftermath of the 9/11 attacks.  For any human being concerned about privacy, information security, U.S. history and constitutional law, the revelations are hair raising.

One of the cardinal virtues of a psychotherapist is privacy.  We have a duty and an ethical responsibility to safeguard the private information revealed to us in our practices.  There are a certain limitations to a blanket level of secrecy (signed release from a patient, court order of records, disguising identity in conversations for teaching/training/supervision, co-ordination with health care providers during a life-threatening emergency, and the duty to warn appropriate authorities when we have information that a patient proposes an imminent threat of harm to self or others).   But generally, what happens in therapy, stays in therapy.  Just like Vegas...

...except that just before January 2004, what happened in Vegas did NOT stay in Vegas.

In mid-2007, FRONTLINE aired a program titled "Spying on the home front".  The program is available to view free online, and I highly recommend watching it.  The report detailed how the Bush administration yielded unprecedented executive authority to obtain warrantless collection of intelligence information without due process about American citizens with no probable cause for criminal activity.  For example, following a hunch on same vague chatter about Al-Qaeda having "a possible interest" in Las Vegas in for the 2004 New Year's celebration, the FBI confiscated hotel, airline, rental car, casinos and more on every single person who visited Vegas at the time.  Were you visiting then?  The FBI had your number.

The Congressional report issued last night revealed that wiretapping and datamining programs such as this were extensive, were carried out without Congressional oversight at the National Security Agency, were drafted through the White House Office of Legal Counsel (with Justice Department lawyer John Yoo overwriting more Constitutional law than a whole bench full of "activist" supreme court justices), and were not effective in yielding actionable intelligence.

Again, I'd urge you to check out the Frontline report (Frontline yielded some incredibly fascinating and informative programming during the end years of the Bush administration), but here's an abbreviated tour through the history of Government privacy protections:

Let's have a tea party!

Way back around the 1750s...like way back before they had iPhones and people mostly had to use Walkmens and stuff...the British monarch King George II had a habit of writing orders to have his lackeys poke into your stuff to try and get more tax money off you and maybe even take some of your stuff away if you didn't pay that money.  But then the King died and his grandson King George III had to re-sign those orders or else they would expire.  A few folks had a problem with this (I think they didn't want officers checking under their white wigs or something) and made a law to ban the king's direct orders unless a judge or legal authority decided that there was a good legal reason for these searches and seizures.  That law was overturned, however, because it's good to be the King, and if King George, who was quite the decider, says so...it must be done. 

Around then, a lot of people in Boston started to get a little cranky (maybe the weather was bad...it was getting closer to winter...in Boston!).  They weren't thrilled with George III's grand-daddy George II, but this George III was just unbearable.  Even though these Bostonians were angrier than when the Yankees are in town, they were still civilized folk.  So they banded together in general bonhomie, and threw themselves a nice Tea Party.  A few years later, they wrote up this set of laws called a Constitution...(writing laws was how they told other people about stuff before blogs, facebook, and twitter) including the Fourth Amendment which went along the effects of "thou shalt not search for, nor drink my beer without proper legal recourse, and if thou is allowest access to said beer, only for a specific and limited amount of time".

The gambler who used pay phones (because they're kinda like slot machines)

Almost 200 years later (but still before YouTube!), a guy named Charles Katz of California was arrested for illegal gambling.  His Blackberry Storm must not have been working because he used a pay phone to place bets across the country (some of those bets were in Boston...shout out to Beantown again!).  The FBI had used wiretaps on those phone booth calls as evidence to arrest him.  In Katz v. United States 1967, the Supreme Court overturned Katz's conviction on the ground that the FBI wiretaps constituted illegal search and seizure. 

The justices made three major points: the fourth amendment covers a "reasonable expectation of privacy"; the fourth amendment protects the privacy of people and not places so your electronic communication is protected; and that warrants must be obtained for wiretapping or search/seizure which are sufficiently limited in scope or duration.

Nixon was just trying to get a Frosty and cheeseburger from Watergate

Then there was this guy Richard Nixon, who became President of the United States.  He was kind of a paranoid sort, always worried that people were out to get him.  He was a guy who wanted to keep his friends close and keep a close ear on his enemies.  Of course, he believed that many of his enemies weren't just foreign powers, but people actually living inside the United States.  He made a lot of tape recordings and had the CIA and FBI do a lot of spying etc., etc.  It turns out that Nixon's room service at the Watergate hotel was not very good, so the Senate opened up the Church Committee (led by Sen. Frank Church) to investigate the CIA's and FBI's intelligence gathering methods.  The then director of the CIA, William Colby, was brought in to testify about CIA activities in front of Congress.  Colby felt that the CIA should be accountable to the legislative branch, even though a number of former Nixon staff tried to block his testimony. Donald Rumsfeld, not surprisingly, was one of these players trying to keep Congress out of the President's business.

The Church committee decided that the U.S. needs to have security on two fronts.  First, we need to be safe from foreign powers and enemies, some of whom have agents in the U.S.  Second, we need to be safe from ourselves; we can't sacrifice too many of our own personal freedoms under the banner of homeland security.  To hold this difficult balance, the Foreign Intelligence Surveillance Act (FISA) was created.  Also, William Colby was replaced as head of the CIA by....George H.W. Bush.

If you thought your VISA terms were complicated, wait until you see FISA

FISA created a "secret court"...sort of like you did in that backyard clubhouse with your friends as a kid.  This secret FISA court makes rulings about whether or not the U.S. is authorized to conduct surveillance on foreign enemies both abroad and in the U.S.  Since we are on the web here, let's talk about electronic surveillance...this means phone calls, emails, electronic records, etc.  The terms have many different scenarios built in, but the main thrust of the FISA code is that the President may authorize warrantless electronic surveillance for the period of up to one year if it is certified by the Attorney General, if the surveilled is directly related to a foreign power, and IF "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party", or it is only for the first fifteen days of a war declared by Congress.  Otherwise, the FISA court must issue a warrant for such surveillance.

When all is said and done, United States law seems to spell out that a sustained blanket surveillance of United States citizens' electronic communication without a court order is a violation of Fourth Amendment rights.

Then came George the Fourth

After 9/11/01, United States government philosophy changed drastically.  Essentially, the US adapted an act first, ask later stance.  We went from due process trials to enemy combatant prisons.   We went from prosecuting crimes to trying to prevent them.  From defense to pre-emptive strike.  Our goal became to "stop this from ever happening again".  Trauma creates hypervigilance.  After a traumatic event, people try to observe and control their circumstances to prevent from ever being harmed again.  But we cannot constantly prevent all harm, and eventually this intensely active vigilance fueled by traumatic anxiety fries neurons and saps energy, leaving one more vulnerable to attack than ever before...and thus trauma cycles on. 

As exemplar, on December 16 2005, the New York Times reported:

"Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials."

From yesterday's report we learned that those eavesdropping programs were widescale, had little oversight, and were of little value in preventing terrorist activities.

Paul Wachtel is a psychologist who describes mental illness as a cyclical psychodynamic pattern that is maintained through anxiety.  In essence, people are often tragic figures who serve as their own worst enemies.  For example, a man so afraid of being left by his romantic partner excessively seeks reassurance, becomes depressed at any separations, and is jealous of time spent apart.  Such a person is hardly a great boyfriend, his overbearance leading his loved one to pull away.  Her withdrawal raises his anxiety and fuels a vicious cycle of greater anxiety, rejection and abandonment.  Shakespeare's work is famous for writing these kind of tragic characters as seen in public figures and political leaders....King Lear, Richard III, Othello, Julius Caesar. 

This country's greatness is founded on a set of precious freedoms from tyranny and oppression.  In the methods we seek to maintain these freedoms as a country, we must not become the tyrannical, intrusive, and oppressive enemies of ourselves.

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Comment below or email correspondence to jareddefifept@gmail.com

About the Author

Jared DeFife, Ph.D.

Jared DeFife, Ph.D., is a clinical psychologist and assistant professor of psychiatry and behavioral sciences at the Emory University School of Medicine.

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