Vermont Bar Journal, Vol. 40, No. 2 Spring 2014, Vol. 40, No. 1 | Page 19

Countless questions remain unanswered:
How much information has been collected from internet companies like Yahoo
and Google? How has it been stored and
used? Is Glenn Greenwald’s claim that “analysts can begin surveillance on anyone by
clicking a few simple pull-down menus designed to provide both legal and targeting justifications” true and, if so, how has it
been used? Does the NSA have access to
metadata from banks and credit card companies? Has the NSA collected any of that
information and, if so, how is it stored and
used? Can the Boundless Informant program be used to identify groups of people
regarding single issues or interests and, if
so, has it ever been used for that purpose?
I worked in the former Soviet Union
for two years. I saw what happens to free
speech when people think their communications may be monitored by the government. People develop a filter between
their minds and their mouths. They dare to
criticize soccer players but hesitate to criticize public policy. Likewise, when government monitors peoples’ associations with
other people, especially would be activists,
their freedom of association wilts. 
We have had one president who was willing to break into his opponent’s headquarters and who kept his own special “enemies list.” We have had an F.B.I. director
who used the Bureau to blackmail congressmen and to suppress civil rights activists and anti-war activists in the 1960s. We
have had FBI agents wiretapping Martin
Luther King’s telephone and sending anonymous letters threatening to expose his extra-marital affairs if he didn’t commit suicide.44 It is fair and reasonable to insist that
today’s surveillance searches and data seizures by the executive branch be subjected
to far stricter oversight by Congress and a
firmly independent judiciary.
Government should be able to collect intelligence and to keep information secret,
but it shouldn’t be able to keep those powers, or the scope of those powers, secret.
The threat of terrorism, combined with new
communication technologies, has taken us
into dangerous waters, made even more
treacherous by the obfuscations of our intelligence community. We have learned
through bitter history that the passage to
a genuinely secure harbor is by adhering
to the principles we charted over two centuries ago: We are endowed by our Creator with certain unalienable rights; Among
these rights are free speech, a free press,
www.vtbar.org

freedom of association, and the freedom
to be secure in our persons, houses, papers and effects; Governments are created
to secure those rights. Most importantly,
those governments derive their just powers only from the consent of the governed.
____________________
David Kelley, Esq., practices law
in Greensboro, Vermont. He also coaches
the Hazen Union debate team.
____________________

In re Certain Children, Orleans County Sup.
Ct., Opinion and Order Regarding Search Warrant, Aug. 7, 1984 (Mahady, J.).
2
Id.
3
Codified at 50 U.S.C. 1861.
4
Relying on Section 215 of the Patriot Act (50
U.S.C. 1861).
5
http://www.theguardian.com/world/2013/
jun/06/us-tech-giants-nsa-data; see also http://
www. washingtonpost.com/wp-srv/special/politics/prism-collection-documents
6
http://www.theguardian.com/world/2013/
jun/08/nsa-boundless-informant-global-datamining
7
http://www.theguardian.com/world/2013/
jul/31/nsa-top-secret-program-online-data
8
Id.
9
Klayman v. Obama, ___ F. Supp. ___ (D.C.
Dist. Ct. 2013), at http://apps.washingtonpost.
com/g/page/world/federal-judge-rules-nsa-program-is-likely-unconstitutional/668.
10
442 U.S. 745 (1979 – is this right? A later cite
(n. 12) has something from p. 742.
11
[need citation – where did FISC say this?]
12
442 U.S. 742-44. Klayman, at 43. Is the citation to Klayman or to Smith? If the latter, where
does the citation to Klayman belong?
13
Klayman, at 53.
14
Id. at 49.
15
Id. at 64.
16
ACLU v. Clapper, ___ F. Supp. ___ (SDNY,
2013), at http://apps.washingtonpost.com/g/
documents/world/us-district-judge-pauleys-ruling-in-aclu-vs-clapper/723.
17
Id. at 25. Of course Adams, Jefferson, Madison et al., were all breaking the law in 1776. In
fact, they risked their lives for what they believed
was right and might well have been hung as traitors if King George had won the war.
18
http://sensenbrenner.house.gov/news/documentsingle.aspx?DocumentID=339292. Judge
Pauley claims that Congress has been fully informed by the NSA concerning the agency’s various programs, but after the Snowden revelations 205 members of the House of Representatives, who felt they hadn’t been informed, voted to halt the NSA’s dragnet collection of telephone metadata. As Chairman of the Senate Judiciary Committee, Sen. Patrick Leahy is one of
the memb