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Part 1 -- McGovern: Unconstitutionality of NSA Phone Call Collection is Indisputable

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Original published at The Real News

Former CIA analyst Ray McGovern says that the recent federal district judge's ruling on the NSA's bulk phone collection applies constitutional protections, but will not lead to amnesty for Edward Snowden. 


JESSICA DESVARIEUX, TRNN PRODUCER: Welcome to The Real News Network. I'm Jessica Desvarieux in Baltimore. 

In what is being called a blow to the NSA, a federal judge has ruled that the NSA's call tracking program violates the Constitution. The ruling was the first major legal defeat for the NSA since former contractor Edward Snowden began exposing secrets about the NSA's data collection. Here is a quotation from the judge, Richard Leon. He said, quote, "I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval". He goes on to say, "Surely, such a program infringes on that degree of privacy that the Founders enshrined in the Fourth Amendment".

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Now joining us in-studio to discuss all this is Ray McGovern. Ray is a retired CIA officer. He was employed under seven U.S. presidents for over 27 years, presenting the morning intelligence briefings at the White House under Presidents Ronald Reagan and George H. W. Bush. Thanks for joining us, Ray. 

DESVARIEUX: So, Ray, let's jump right into this and Judge Leon's decision. As I said in the introduction, he ruled that it was unconstitutional, what the NSA is doing. But I want to take up the counterargument, because you have those who are saying that they are willing to suspend some of these constitutional rights for their safety, and they argue that, you know, we haven't had an attack on American soil since 9/11, and it's because of surveillance programs like the NSA. What's your response to that? 

RAY MCGOVERN, EX-CIA ANALYST: Well, my response is, if you want to change the Constitution, there's a way to do that. But the Fourth Amendment is about security of people. Okay? It says the right of people to be secure from unreasonable searches and seizures shall not be violated, and no warrants shall issue except upon probable cause, particularly defining the area to be searched or the people or things to be seized. It's the simplest of all amendments. There is no way that NSA programs can square with that amendment. 
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And Dianne Feinstein and Mike Rogers and all the people who are supposed to be overseeing this but are kind of overlooking it know that. So we have a very sick combination of NSA exceeding the Constitution being blessed by the overseers of the so-called intelligence oversight committees, and then joined by these judges who have been co-opted into the whole process, the so-called FISA judges. 

Now, for the first time, for the first time we have a judge saying, hey, the Constitution supervenes. The Constitution is what we have to look at. And these things are clearly unconstitutional. Now, why is it this took so long? Because until now nobody had standing. Okay? Legalese for nobody could prove they were being snooped on. Hello. That's all by the board. 

So are we out of the woods? No. I think that the deed is done but the people that resist this kind of thing, like Dianne Feinstein today -- I couldn't believe her. Before her own committee, she said, now, I am sure that no member of my committee wants to approve a program that is not constitutional. Well, hello, then why did you do it? So it's coming to a head now. And whether Judge Leon's opinion will be sustained is really up for grabs, because there are a lot of lot of opposition to reining in the NSA because of this false dichotomy, this false choice that we're given between total security and total privacy. Okay? Now, the president is wrong when he says we have to make that choice. If we want to fool around with total privacy, we've got to change the Fourth Amendment. He should know that. He supposedly taught the Constitution of the United States. 

DESVARIEUX: And the judge even said, essentially, that he hasn't seen any evidence that proves that we've actually stopped an imminent attack, right? 

MCGOVERN: Well, you know, that's just it. These people -- we don't say -- in Washington we don't say lies. We're in Baltimore, I guess, so we can say, yeah, these people live through their teeth. Okay? General Clapper, General Alexander. Alexander said initially, we thwarted -- love that word -- thwarted 54 terrorist attacks. Okay? Now, even the press took that apart. 

But when he went back before the Judiciary Committee in the Senate, the chair says, well, how many of those had anything to do with the United States? He said, well, maybe 13. Well, how many actually were thwarted due to this evidence? One. And Clapper chimes in and he says, maybe two. Well, hello, after telling them 54, okay, and then it's down to one all of a sudden, what they don't say is that all this attention given to this technical collection prevents the kind of detective and intelligence work that is necessary to stop people like Major Hasan; Abdulmutallab; the guy who killed the seven CIA people, Balawi, out in Khost; Faisal Shahzad, the guy in the Times Square; and, of course, the Tsarnaev brothers. 

Those things should have been thwarted through normal intelligence detective activities. And where, for example, in Boston, where was the FBI? You know, they didn't even tell the Boston police that the Russians had told us twice these guys were really bad actors [incompr.] Where were they? They were down monitoring Occupy on Boston Commons. 

DESVARIEUX: Okay. I want to get back to talking about Edward Snowden and the revelations. Just to remind our viewers: what has Edward Snowden, if you could just summarize briefly, what has his revelations revealed?

MCGOVERN: He's revealed that NSA has tapped into all the encryption devices of the major telecoms, of the major--Google and other providers for the internet, that they've tapped into people like Angela Merkel, chiefs of state. And they don't seem to have had any adult oversight when they've done this. In other words, Dianne Feinstein knew what they were doing and said, well, yeah, okay. And, you know, when people say, well, how can this be, how can Congress be afraid to exercise its responsibilities, well, I think the best reason was given, perhaps unintentionally, by Senator Lindsey Graham. And this is what he said: "Who wants to be the congressman or senator holding the hearing as to whether the President should be aggressively going after terrorists? Nobody. And that's why Congress has been AWOL in this whole area." 

Now, for the younger listeners here, AWOL is absent without leave. And that's exactly what -- and he's bragging about it. He's on the oversight committee for the Defense Department, not on the -- but that's the attitude. It's just like when we were going after old communists, right? No senator or congressman could appear to be the least bit soft on communism. Now they're afraid to be the least bit soft on terrorism, and the U.S. Constitution doesn't really matter. 

DESVARIEUX: And so does revelations -- I just want to be clear -- also reveal that they can actually track where you are now, and not just in the virtual world, but in the real world. You know? 

MCGOVERN: [incompr.] have the cell phone information, and they are doing that. You know. And the whole thing is the technology is driving this. Because they can do it, of course they do it. Nobody does a cost-benefit analysis. For example, should we continue to find out what Angela Merkel is having on Saturday evening with her sauerbraten? I mean, that's all we're getting out of this. Should we continue? Well, yeah, let's try eight more years. You know. There's no sense of proportion here. Because the technology allows us to do all this stuff, then we'll do it. And the bizarre explanations about, you know, you're trying to find the needle in the haystack, well, the heads of the NSA are saying, well, for that you need a haystack, and for that you need as much hay as you can possibly find. Now, that's the problem. They can't possibly get at where the needle is if they keep on -- no matter how many sophisticated retrieval devices they have, they keep on piling more hay, which they are doing. They're not going to find the needle as easily as if they just applied traditional intelligence police investigation devices.

DESVARIEUX: Okay. Let's get to a statement that Edward Snowden released through Glenn Greenwald, a former Guardian journalist who reported on the leaks initially. He said, quote, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans' rights. It's the first of many. There are those saying that this ruling really vindicates Edward Snowden. And top NSA official Rick Ledgett said in the 60 Minutes interview that aired this past Sunday that it's worth having a conversation about whether or not we should grant Edward Snowden amnesty. So we're hearing this word amnesty come up again, Ray. Do you think this ruling and Ledgett's comments will actually see us move to that possibility? 

MCGOVERN: No, it's blowing smoke. I mean, look, Alexander himself, the head of NSA, said no deal. You know, we have to hold people accountable, which is extremely bizarre coming from him. Alright? You have to hold these people accountable. So that's just blowing smoke, trying to introduce a degree of humaneness to the way some people at NSA feel. There's no possibility of amnesty. There's no possibility of a deal. 

Daniel Ellsberg went through the same thing. But over the years, it came out that he was a patriot -- not a hero, you know, a patriot. And that's exactly what Edward Snowden is. You know. He had a Constitution on his desk in Hawaii, okay? And one of his colleagues said, you know, he used to pick that thing up and argue from it until the cows came home that what we're doing is unconstitutional. Now, why isn't that in the press? That came from one of the employees of NSA, a current employee, who was saying all this trash about Snowden is wrong. He was the brightest of the brightest, and we depended on him. That's how he got access to all this sensitive information. He didn't steal anything. He was just so much admired and so much trusted that he was a natural to be able to solve these problems and have all the information needed to be able to solve them. 

DESVARIEUX: Alright. Ray, we're going to get into part two of our conversation and discuss that 60 Minutes piece that I referred to. Thank you so much for joining us. 

MCGOVERN: You're most welcome.

DESVARIEUX: And thank you for joining us on The Real News Network.


Ray McGovern is a retired CIA officer. McGovern was employed under seven US presidents for over 27 years, presenting the morning intelligence briefings at the White House under Presidents Ronald Reagan and George H.W. Bush. McGovern was born and raised in the Bronx, graduated summa cum laude from Fordham University, received an M.A. in Russian Studies from Fordham, a certificate in Theological Studies from Georgetown University, and graduated from Harvard Business School's Advanced Management Program. McGovern now works for "Tell the Word," a ministry of the inner-city/Washington Church of the Saviour.


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