New Surveillance Whistleblower: The NSA Violates the Constitution

A former Obama Administration official calls attention to unaccountable mass surveillance conducted under the guise of a 1981 executive order.

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John NapierTyeisspeaking out to warn Americans about illegal spying. The former State Department official, who served in the Obama administration from 2011 to 2014, declared Friday that ongoing NSA surveillance abuses are taking place under the auspices of Executive Order 12333, which came into being before the era of digital communications but is being used to collect them promiscuously. The whistleblower alleges that the Obama Administration has been violating the United States Constitution with scant oversight from Congress or the judiciary.

"The order as used today threatens our democracy," he wrote. "I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?" If you've paid casual attention to the Edward Snowden leaks and statements by national security officials, you might be under the impression that the Obama administration is already on record denying that this sort of spying goes on. In fact, denials about NSA spying are almost always carefully worded to address activities under particular legal authorities, like Section 215 of the Patriot Act orSection 702of the Foreign Intelligence Surveillance Act. An official will talk about what is or isn't done "under this program,"eliding the fact that the NSA spies on Americans under numerous different programs, despite regularly claiming to be an exclusively foreign spy agency.

Executive Order 12333 is old news to national security insiders and the journalists who cover them, but is largely unknown to the American public, in part because national security officials have a perverse institutional incentive to obscure its role. But some insiders are troubled by such affronts to representative democracy. A tiny subset screw up the courage to inform their fellow citizens.

The former State Department employee, Tye, is but the latest surveillance whistleblower, though he took pains in hisWashington Post op-ed, where he leveled his accusations, to distinguish himself from Snowden and his approach to dissent. "Before I left the State Department, I filed a complaint with the departments inspector general, arguing that the current system of collection and storage of communications by U.S. persons under Executive Order 12333 violates the Fourth Amendment, which prohibits unreasonable searches and seizures," Tye explained. "I have also brought my complaint to the House and Senate intelligence committees and to the inspector general of the NSA." These stepswhich many say Snowden should've takenproduced no changes to the objectionable NSA spying and wouldn't be garnering attention at all but for Snowden's leaks. It is nevertheless telling that another civil servant with deep establishment loyalties and every incentive to keep quite felt compelled to speak out in dissent.

As Tye put it:

I have never made any unauthorized disclosures of classified information, nor would I ever do so. I fully support keeping secret the targets, sources and methods of U.S. intelligence as crucial elements of national security. I was never a disgruntled federal employee; I loved my job at the State Department. I left voluntarily and on good terms to take a job outside of government. A draft of this article was reviewed and cleared by the State Department and the NSA to ensure that it contained no classified material.

When I started at the State Department, I took an oath to protect the Constitution of the United States. I dont believe that there is any valid interpretation of the Fourth Amendment that could permit the government to collect and store a large portion of U.S. citizens online communications, without any court or congressional oversight, and without any suspicion of wrongdoing. Such a legal regime risks abuse in the long run, regardless of whether one trusts the individuals in office at a particular moment.

This act of conscience illuminates yet another path that a surveillance whistleblower can take. If more current and former federal officials believe that the NSA is in flagrant violation of the 4th Amendment, they should consider declaring themselves too. "Based in part on classified facts that I am prohibited by law from publishing," Tye wrote, "I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215." I wonder what he saw but isn't revealing.

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New Surveillance Whistleblower: The NSA Violates the Constitution