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Curbs on Surveillance State Urged

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Barack Obama, then President-elect, and President George W. Bush at the White House during the 2008 transition.
(image by White House Photo)

MEMORANDUM FOR: Privacy and Civil Liberties Oversight Board

FROM: Veteran Intelligence Professionals for Sanity (VIPS)

Subject: Two Administrations and Congress Dismantled the Constitution -- How Can It Be Restored?

Drastic Erosion of Citizen Privacy Since 9/11

Since the events of September 11, 2001, actions by successive U.S. administrations -- backed by legislation such as the Patriot Act and the FISA Amendments Act (FAA) -- have eroded privacy provisions guaranteed under the U.S. Constitution. Lawsuits challenging these actions have languished, with the U.S. Supreme Court having declined to hear the one case to reach it for review, Clapper vs. Amnesty International.

Post-9/11 DOJ Legal Opinions Roll Back Rights

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How did America manage to arrive at such a wretched state of affairs? Following the 9/11 attack, the Office of Legal Counsel (OLC) at the Department of Justice issued a series of legal opinions asserting that the President's commander-in-chief powers vis-a-vis the so-called "Global War on Terror" were not to be challenged by the legislative or judicial branches. The DOJ based its opinion regarding the President's executive power on its broad interpretation of Article 2 of the Constitution.

Then, Vice President Dick Cheney stated in the aftermath of 9/11 that "we also have to work through ... the dark side ..." suggesting that because the "War on Terror" had migrated to U.S. shores, the U.S. would stray from constitutional rule-of-law protections, and that extreme measures -- perhaps even including lifting privacy protections under the Foreign Intelligence Surveillance Act (FISA) of 1978 -- might be taken.

However, the legal opinion issued by the Justice Department exceeded its authority, since the clause under Article 2, Section 2 does not provide for any executive powers beyond that granted the President as commander-in-chief of the U.S. military. It reads: "The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."

The straightforward language does not grant the President the power to ignore other provisions of the Constitution or to dismiss any Public Law enacted by Congress; but shortly after 9/11, that over-reach was exactly what the OLC set about to "legalize" in its series of opinion memorandums.

Despite Legal Reversals, Constitutional Abuse Unabated

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In 2008 the OLC issued two reversals of the earlier post-9/11 OLC opinions of John C. Yoo, former Deputy Assistant U.S. Attorney General. The 2008 opinion issued by Steven G. Bradbury, Principal Deputy Assistant Attorney General urged that caution be exercised before relying on the Feb. 8, 2002 OLC legal opinion that the Authorization for Use of Military Force (AUMF) of Sept. 18, 2001, P.L. No. 107-40, 115 Stat. 224 (2001) be used as a precedent to conduct warrantless surveillance for the prevention of catastrophic attacks on the United States, since that 2002 interpretation of the AUMF no longer reflected the current views of the OLC.

Bradbury also took issue with the Sept. 25, 2001 OLC opinion recognizing court precedent that "deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others" and, by extension of that recognition, that the "[G]overnment's heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches."

Mr. Bradbury opined that by applying the deadly force principle and the Fourth Amendment's "reasonableness" standard to warrantless searches, the fact-dependent nature of the Fourth Amendment's "reasonableness" review is absent and is not necessarily the same "in its inception and in its scope" as is the constitutionality of the use of deadly force. Here, six years ago, the U.S. is provided two separate OLC reversals of the purported "legal" basis behind warrantless domestic surveillance, but Congress has persisted in allowing two Administrations to subvert our Constitution!

Congressional Floundering

When the Edward Snowden revelations began to appear in newsprint in 2013, a strong public outcry immediately arose demanding legislation to rein in unconstitutional Government practices of the post-9/11 Surveillance State. In response, Congress drafted numerous bills to reform procedures and processes that were considered objectionable.

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