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Cracks widen in the armor of the surveillance state

This article was originally published at the People’s Blog for the Constitution, the blog of the Bill of Rights Defense Committee.

Members of Congress sensitive to constitutional limits on executive power have introduced no fewer than a dozen bills to curtail NSA spying. Most of them would do nothing to address the most recent disclosures from journalist Glenn Greenwald. Until the full scope of NSA spying is revealed to the public, congressional remedies for constitutional violations will remain insufficient.

Unfortunately, while Snowden’s disclosures may enable further facts to finally emerge about NSA abuses, transparency is generally waning despite President Obama’s rhetorical commitment to it.

The latest revelations of NSA domestic spying include new information about the government’s ability to intercept social network communications, email metadata and content, and other online content–all without a judicial warrant.

Beyond the particular details about Xkeyscore, however, lies a more disturbing implication: neither the press, nor the public, nor even Congress have any idea of the full extent to which the NSA is spying on Americans.

And if the latest results from the war on whistleblowers is any indication, each of these sectors will remain in the dark going forward, executive abuses will continue to mount, and our system of constitutional checks & balances will creak as executive secrecy continues to impede review from either Congress or the courts.

Congress legislating in the dark…

The same day that the Guardian revealed the NSA’s’s ability to casually intercept online communications even in social networking applications like Facebook, Senate intelligence committee chair Dianne Feinstein (D-CA) revealed how little she knows about the operations of an agency she is charged to oversee.

Despite being described by the Washington Post as “chief congressional defender of the surveillance program to skeptical colleagues and critics who say it’s Big Brother run amok,” she wrote an op-ed in the Post pledging to “work with…the Senate intelligence and judiciary committees to consider changes to the NSA call-records program in an effort to increase transparency and improve privacy protections.”

While her interests in transparency and privacy are laudable, they are a day late, a dollar short, and dramatically out of step with her overwhelmingly principled (either libertarian or progressive, but rarely moderate) constituents. Most striking, however, are the gaps pervading Feinstein’s analysis.

First, she insists that NSA intelligence collection is limited to meta-data, and emphasizes the controls supposedly limiting access to the vast mountains of data collected under a particular program, Section 215 of the PATRIOT Act, implicated by the first document revealed by Snowden.

But that’s only a single program. The PRISM program, which was also revealed weeks ago, explicitly captures content, as does the XKeyscore program revealed just yesterday. Feinstein downplays the extent of surveillance even while calling for more transparency. As the longtime chair of the relevant Senate oversight committee, she should have a better grip on the facts.

At one point, Sen. Feinstein absurdly claims to “know of no federal program for which audits, congressional oversight and scrutiny by the Justice Department, the intelligence community and the courts are stronger or more sustained.”

The Senator’s self-assurance aside, yesterday’s Guardian article revealed that even corporate contractors were allowed access to real-time social network monitoring with neither executive nor judicial oversight of any kind, not even by the rubberstamp FISA court. If this is the zenith of transparency across the federal government, it would be interesting to learn what the Senator thinks secrecy looks like.

Other members of the Senate intelligence committee, such as Sen. Ron Wyden (D-OR), have posed tough questions to executive officials, only to be stonewalled by the administration and blocked from reviewing key facts that would help reveal the extent of domestic NSA surveillance.

Last week, in the first vote on domestic surveillance powers since the Snowden leaks, the House came only six votes short of defunding the NSA’s domestic’s spying activities entirely.

The surveillance state staved off a public vote of no confidence with a margin of just over 1%. And that was before the latest revelations of online and email surveillance even beyond what Congress knew about at the time.

The PATRIOT Act has never been popular among Americans despite its recurring reauthorization from a compliant Congress. Over 400 cities and towns across the country enacted resolutions opposing PATRIOT powers, in addition to eight states, all representing a wide diversity of political cultures.

Would Congress have ever approved these powers had their more recent abuses been anticipated years ago? If recent comments from PATRIOT’s author offer any indication, the answer is no.

Rep. James Sensenbrenner (R-WI), former chairman of the House Judiciary Committee, wrote publicly against NSA abuses, as well as to the Attorney General, and even spoke out eloquently on the House floor. He went on to break ranks with the bipartisan establishment of which he has long been a part, to instead support a coalition of progressive Democrats and libertarian Republicans in their valiant and continuing effort to stop dragnet NSA spying.

Members of Congress sensitive to constitutional limits on executive power have introduced no fewer than a dozen bills to curtail NSA spying. Most of them would do nothing to address the recent disclosures. Until the full scope of NSA spying is revealed to the public, congressional remedies for constitutional violations will remain insufficient.

The Surveillance State Repeal Act, introduced in the House by former House intelligence Chairman (and Princeton physics professor) Rush Holt (D-NJ), would come the closest, by repealing the PATRIOT act and the FISA amendments act of 2008 entirely. Among the reform proposals that have been introduced, it may be the only one that reaches the sphere of what former Defense Secretary Donald Rumsfeld described as the “unknown unknowns” that continue to impede efforts to restore the rule of law, transparency, and accountability to the national security state.

Unfortunately, while Snowden’s disclosures may enable further facts to finally emerge about NSA abuses, transparency is generally waning despite President Obama’s rhetorical commitment to it.

…maintained by the war on whistleblowers

Greenwald’s latest disclosures will predictably prompt renew calls for the extradition of Edward Snowden and repeated claims that his disclosures undermined national security. It’s worth remembering, however, that Snowden’s leaks reveal neither sources, nor methods, nor any details about particular investigations.

More importantly, every public official swears an oath to defend the Constitution against all enemies, foreign and domestic. Like Bradley Manning–who this week was acquitted of the most serious charges against him, yet could very well spend the rest of his life in prison, Snowden was simply doing what any conscientious public servant should do: revealing evidence of executive crimes to the public, even at the risk of their own careers. They should not have to risk their freedom, as well.

Manning revealed evidence of war crimes and human rights abuses by the US military, whereas Snowden revealed constitutional crimes by the NSA committed against the American people. While addressing distinct abuses, their acts were essentially identical.

The greatest irony about Snowden’s whistleblowing is that he at no point swore an oath to defend the Constitution, yet took it upon himself to abide by one nonetheless. In sharp contrast, every official in the NSA chain of command violates that oath every day by participating in secret programs violating both the Bill of Rights and the structural text of the Constitution. Similarly, every member of Congress who voted for the PATRIOT Act or 2008 FISA  amendments has been complicit in enlarging executive power that has no place in a constitutional republic.

Some officials bear particular blame. Director of National Intelligence James Clapper is a good example: not only has he sworn an oath of office which he violates every day, but he affirmatively lied to Congress in response to a direct question of which he advance notice.

Clapper’s crimes are vastly more severe than either Manning’s or Snowden’s, yet he has escaped accountability. Like the Bush administration torture lawyers who have gone on to serve on the federal appellate bench, the faculties of public universities, and as the new director of the FBI, they stand above the law.

It is shameful for a country that imprisons a quarter of our planet’s prisoners to exempt from its relentless prosecution the particular people guilty of the most severe crimes, while prosecuting public servants who actually fulfilled their oaths and complied with legal principles requiring disclosure of known rights abuses.

Even more shameful is our recurring habit of shooting the messenger when confronted with our own abuses of domestic constitutional or international human rights, rather than actually fixing the abuses themselves.

More shameful yet is the disturbing reality that our nation, while claiming to lead the free world, has needed to learn about the massive constitutional violations of our own national security agencies from a foreign newspaper, and one based in the country against which we fought a war to establish our independence over two centuries ago, at that!

Then again, given the war on whistleblowers, the Justice Department’s assault on the Associated Press, and the economic decline of the newspaper industry in the United States, perhaps it shouldn’t surprise us.

Members of Congress seem content to legislate without knowing the facts. Are We the People of the United States content to let them?

This August presents an opportunity to find out: members of Congress will return home from Washington. Will those who voted against the Amash amendment, such as House Minority Leader Nancy Pelosi (D-CA), hear a long overdue cavalcade of criticism for falling asleep at the switch?

Public domain image via Wikimedia Commons.

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Shahid Buttar

Shahid Buttar