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Attorney Bruce Fein discusses NSA lawsuit, DHS spying, and FCC intrusions

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Constitutional attorney and former Reagan administration official Bruce Fein spoke in Charlottesville on Thursday, February 20, about his book, Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy, at a forum sponsored by the Rutherford Institute and hosted by the Barnes & Noble at Barracks Road Shopping Center.

In an interview with the Charlottesville Libertarian Examiner just before his presentation, Fein said he would also comment on events since the book's 2009 publication, events that illustrate how “violations of the constitution have become so chronic that they numb the public and even elected officials to the danger we encounter as we move toward what I call 'one branch tyranny' – secret government, [with] everything subordinated to a risk-free existence and absolute executive power.”

Since writing the book, he said, “ we've inched even further along that perilous path.”

NSA spying

One example came with the revelations that the National Security Agency has been engaged in domestic spying against American citizens. In response, Fein has been working with U.S. Senator Rand Paul (R-Kentucky) on a law suit against President Barack Obama filed as a class action “on behalf of every single American who's made a phone call in the last five years.”

He explained that “the NSA since 2006 has been collecting, without any suspicion of wrongdoing, the telephony metadata on every single American's phone calls. That means they get the number you dialed, your own number, the duration of the call, and perhaps where the location is.”

The NSA collects this information, he said, even though the agency has “no suspicion at all that you're engaged in any kind of wrongdoing, that what you're doing has anything to do with foreign intelligence.”

The agency justifies its spying with the belief that, “by collecting this data, at some future point, they may be able to connect your phone number with a foreign phone number that has some possible connection with international terrorism.”

'Dragnet surveillance'

This, Fein said, “is a dragnet surveillance of staggering proportions” yet in the eight years since the program was initiated, “there have been no uses of the program that have resolved a single terrorism investigation.”

The argument of the lawsuit is that the NSA's metadata collection “violates the Fourth Amendment prohibition against unreasonable searches and seizures,” he said. “You have a right to keep your metadata free from government surveillance and the fact that your phone company has it doesn't mean that you've expected the government to have it. The government can put you in prison; the phone company cannot.”

The resolution sought by the lawsuit is “to get a judicial order requiring the NSA to expunge from their database, which is perhaps the largest database in the history of the world, all of this telephony metadata, and forbid it from being collected in the future.”

If the lawsuit succeeds, he explained, “it would expunge all of the information that now hangs over everybody's head like a sword of Damocles.”

Collecting license plate data

Fein also commented on a recent news story that the Department of Homeland Security had put out a Request for Proposals (RFP) to track the location of every vehicle's license plate in the United States. (The RFP was later withdrawn in the face of public opposition.)

Even though the program was suspended, he said, “we can anticipate there'll be efforts to use surveillance drones to capture where Americans are 24 hours a day, if they step outside their home.”

This is, he explained, “all part of what I call the psychology of a risk-free existence. That's the bane of any republic because liberty can't persist without some risk.”

The DHS example shows how “the government feels that they should try to gather all information at all times about everything we do because it at some future time it might be connected with an international terrorist investigation, which again turns the whole idea of liberty on its head,” Fein explained.

“We have an inherent right to be let alone, just because we're human beings,” he said, “and that right can be disturbed only if the government can advance a compelling reason to think you're engaged in some kind of wrongdoing or have information relevant to some wrongdoing or antisocial behavior.”

Americans are not required to explain to the government “why we want to be let alone,” Fein explained, because “it's just inherent of being an American, and that has been turned on its head. The government now assumes that they have the right to get every [bit of] information they can conceive about you.”

FCC in TV newsrooms

Fein also commented on a program proposed by the Federal Communications Commission – also withdrawn in the face of public opposition – that would embed investigators in every television newsroom to determine how reporters decide what stories to feature on their broadcasts.

That kind of activity by the FCC, he said, “It is an outrage. We would expect that in Russia or China or maybe in Belarus.”

The FCC's proposal, he said, violates the understanding that “the government never has a right to impair anyone's privacy -- to look at anything that Americans are doing – unless they have, at the outset, some plausible basis to think wrongdoing is underway.”

In a republic, Fein said, “the people censure the government; the government does not censure the people.”

He concluded the interview by quoting Thomas Jefferson, who said: “When the government fears the people, you have liberty. When the people fear the government, you have tyranny.”

Unfortunately, Fein asserted, “we are approaching the latter, unless we change that trajectory very quickly.”

Bruce Fein also appeared on WCHV-FM's “Inside Charlottesville” with Coy Barefoot on the same evening he spoke at Barnes & Noble.

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