In a couple of months, President-elect Trump will get the keys to the most far-reaching and powerful surveillance apparatus in history, and it seems almost certain the spy-state will only expand under his administration.
The signs are ominous.
Trump’s transition team includes vociferous supporters of the U.S. surveillance state, including Army Lt. Gen. Ronald Burgess, former director of the Defense Intelligence Agency, and Rep. Devin Nunes (R-Calif.). And the president-elect’s comments on the campaign trail indicate he has no qualms about deploying American spies for his purposes. During a speech in November 2015, Trump said, “I want surveillance of certain mosques if that’s OK…We’ve had it before.” This summer, he suggested the government would “have to be watching” Black Lives Matter.
Without question, his policy advisors will tell him spying on Americans is perfectly OK and rubber-stamp whatever surveillance programs Trump comes up with once he takes office.
The doesn’t bode well for our privacy considering under a Reagan-era executive order, the president unilaterally directs most of the actions taken by the U.S. surveillance apparatus with virtually no oversight or accountability. In 2014, the ACLU obtained documents relating to EO12333 from the NSA, the Defense Intelligence Agency and others agencies, through a Freedom of Information Act request. The ACLU says the documents prove that the presidential EO “governs most of the NSA’s spying.”
According to an ACLU report by Alex Abdo, the documents make it clear that the NSA collects data from Americans “about much more than just terrorist threats,” and operates with little to no oversight.
“Because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts,” Abdo wrote. “We’ve already seen that the NSA has taken a ‘collect it all’ mentality even with the authorities that are overseen by Congress and the courts. If that history is any lesson, we should expect — and, indeed, we have seen glimpses of — even more out-of-control spying under EO 12333.”
Under both Presidents Bush and Obama, the executive branch combined executive orders with the 2001 AUMF to claim the authority to conduct virtually unlimited information gathering without a warrant. Simply put, according to the executive branch, the commander-in-chief possess the authority to spy at will as part of his constitutional war powers, and Congress can’t interfere, short of revoking the AUMF.
It seems highly unlikely Trump will relinquish his spying powers, and Congress certainly won’t rescind the president’s “get into a war free” card.
Some Republicans in Congress resisted the surveillance state with Obama in the White House, but many will likely lose all stomach for that fight with a Republican in the White House. At any rate, Congress has proved feckless in terms of limiting the power of NSA and other agencies involved in warrantless surveillance even when some seemed inclined to try.
So, what do we do?
The best chance to rein in federal spying involves state and local action.
The federal surveillance-state has become completely intertwined with state and local law enforcement agencies. The federal government provides funding so state and local police can purchase spy-gear, often off the books with no oversight. These same agencies then share data they collect with federal agencies that build vast databases filled with private information on millions of Americans. All of this happens without warrants or even minimal judicial oversight.
By limiting state and local law enforcement agencies’ access to spy-gear, and restricting how police collect and share data, state and local governments can effectively limit the amount of information flowing into federal databases.
State governments can also address warrantless NSA spying by banning the state (and all of its political subdivisions) from providing assistance or material support in any way with the NSA spying program through a piece of legislation known as the Fourth Amendment Protection Act (Model legislation (HERE).
The spying will continue under Trump, but we can fight back through state and local action. Click HERE for more information and model legislation.
Photo by Gage Skidmore via Flickr