by Barry Edelson
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Preserve, Protect and Defend


Among the many reasons why President Obama's left-leaning supporters are disappointed in him — for not embracing a single-payer health plan, for a tepid regulatory response to the financial crisis, for setting records for the deportation of illegal immigrants, for endorsing a test-obsessed brand of education reform — all pale in comparison to his monumental failure to rein in the vast governmental surveillance apparatus set in motion by his predecessor in response to 9/11. The consequences of his unaccountable passivity in the face of the gravest threat to civil liberties in the nation's history will very likely be irreversible and the ramifications will be felt for generations.

The recently aired Frontline documentary, "The United States of Secrets", makes it very plain that we have a great deal more to fear from our government's overwrought response to terrorism than we know. Most frightening of all perhaps is that we just don't know how much we don't know. Prying eyes have given us only a glimpse into the netherworld of the National Security Agency, and the little of it that we have actually seen is not a place that Americans would recognize as their own country. It is tempting to write off much of the concern about government snooping as the product of paranoid purveyors of conspiracy theories. We are greeted with the common refrain of denial: "If you haven't done anything wrong, you have nothing to worry about".

This facile argument is trotted out whenever freedoms are seriously in peril — think Alien and Sedition Acts, the internment of the Japanese during WWII, the McCarthy hearings — and it is demonstrably false. The fallout from government surveillance is not the figment of the imagination of Hollywood scriptwriters or writers of espionage thrillers. It is real and growing. Just as in previous eras of government overreach, many people have been ensnared in the widening government surveillance net who have in fact done nothing illegal, but whose lives have been turned upside down nonetheless. Moreover, we are largely oblivious to the manner in which the government is Hoovering up unimaginably vast quantities of data on all of us, and blissfully unaware of the collusion between intelligence agencies and private companies, to which we routinely entrust our personal data in the naive belief that it is only being used to sell us more stuff.

When people start to die, not by terrorist plots but by the depredations of our own government, the blood will be on all of our hands.

First, There Was Fear

If Frontline pulls no punches about the extent and the risks of domestic surveillance, it also does not try to whitewash the nature of the threat to which we are responding. The documentary begins on 9/11, when the intelligence community's undeniable failure to anticipate the attacks precipitated a spiral of events within those secret layers of the government entrusted with national security. It is difficult to say with certainty exactly where the idea arose to upend a decades-long policy that prohibited spying on Americans and to unleash the National Security Agency within the borders of the United States. But it is quite clear that Vice President Cheney and his aides were central to the effort of justifying and implementing it. Michael Hayden, the former head of the NSA who was interviewed extensively for the film, was at first resistant to the idea of domestic surveillance. But once the White House signed off on the legality of this 180-degree turnaround, the former general dutifully drank the Kool-Aid. He continues to defend the policy to this day.

A confidential executive order, which would have been highly controversial had it been known to the public, was issued to provide cover for those who had to carry out this policy. Astonishingly, the order was not prepared by the office of White House counsel, as such orders always are. It was drafted by David Addington, who was counsel to the Vice President. Addington was reputed to carry a miniature copy of the Constitution in his breast pocket, not to remind himself of his duty, but to be prepared at all times to find ways to circumvent it. The original order was subsequently kept in the safe in his office. This sequence of events is probably unprecedented in American history.

Some Americans have long suspected that President Bush was merely a pawn in Cheney's master game of power and intrigue, a suspicion that evidently chafed at the President and caused a falling out between them during his second term. But in those early days after the 9/11 attacks, when the country was on edge, Bush proved the perfect front for an administration that desperately wanted to simplify the terms of debate and demonstrate resolution in the face of a disaster for which it could easily have been blamed. And so the simplistic rhetorical framework for the next decade was cemented: the enemy is "terrorism"; those who committed terrorist acts "hate our way of life"; countries are either "with us or against us"; the President's foremost duty is to defend the country and all efforts to do so are targeted only against "evil-doers". One cannot help but remember Dwight Eisenhower's warning against the "military-industrial complex" as he departed the White House, suggesting that future leaders would be powerless to do anything to stop it from taking over the country if steps weren't taken soon to rein it in.

If anything, Eisenhower's warning did not go far enough, because if we include the intelligence agencies in the dreaded complex, then the dangers are far greater even than he stated. It is bad enough to allow military contractors to serve as de facto employment agencies for the officer corps, until the armed forces and the companies that supply its hardware become inextricably intertwined. It is even more frightening for those connected with national security to develop vested military, security and economic interests in keeping tabs on private citizens. Gullible optimists like Ronald Reagan and Bush, Jr., the kind of presidents who are convinced of their own goodness and believe their own press releases, are especially vulnerable to the machinations of those within the government for whom the Constitution is at best an inconvenience and at worst an obstacle to greater power.

Lesser known to us are the numerous genuinely patriotic people who worked at the NSA and other agencies who were deeply concerned about the turn the government was taking and made gallant attempts to stop it. Once the executive order permitting warrantless domestic surveillance was issued, however, all attempts to reverse course were futile. Frontline does a great service in bringing several of these individuals into the light. Some long-serving NSA staffers resigned shortly after 9/11 rather than be complicit with what they believed to be clearly unconstitutional orders to spy on their fellow citizens. Others remained and tried to make a difference from the inside. A group within the NSA invested a lot of time developing a surveillance program with Constitutional protections built in. This system would have identified and shielded data connected to ordinary citizens before anyone within the agency could even look at it. But this was too restrictive for the security fanatics who were taking over the agency, and it was never implemented. Instead, the NSA opted for the less fussy program that did not distinguish domestic from foreign sources and which was not revealed to the public until several years later. Those who objected were essentially told to shut up and do their jobs. Some did; still others left the agency. A few brave ones stayed on and continued to resist as much as they could.

One of these men, Thomas Drake, a decorated war veteran, began his tenure at the NSA just as the 9/11 attacks happened. He was so alarmed by the turn the agency abruptly started taking that he eventually went public. His inside knowledge of the workings of the NSA were an important source of information for three former staffers who had retired — William Binney, J. Kirk Wiebe, and Ed Loomis — but who continued to work on the outside to bring the agency's excesses under control. They worked in tandem with Diane Roark, a senior Republican staff member on the House Intelligence Committee. In frustration, they eventually went public with their concerns, and were subsequently accused of leaking secret information. They all had their houses raided by the FBI and faced felony indictments. Not one of them can talk about these events without becoming emotional; it is difficult to imagine what it must be like to faithfully serve your country your whole life only to be wrongfully accused of treason. Ultimately they were either cleared or convicted only of minor offenses, but not before their lives were turned upside down and their reputations smeared by the chicken hawks in the Bush White House. None of these individuals was radical, nor did they underestimate the threat posed by militant Islam. They had spent their entire careers in service to their country, and did what they thought was right in spite of the personal cost: the definition of patriotism. They merely felt that the country was sacrificing its values by turning into a surveillance state. They tried to work within the chain of command but found no one who would listen. For their troubles, their lives were ruined. Thus the perennial message to would-be whistleblowers was reinforced: don't even think about it.

Now It's About You

In 1971, NBC aired "The Invasion of Kevin Ireland", an episode of a television program called "The Bold Ones". Darren McGavin played a man with a successful career and happy marriage whose life spirals out of control as the result of a bad credit report. As it turned out, one crazy neighbor complained about Ireland to an investigator from a credit rating agency, who in those days gathered personal as well as financial data on behalf of anonymous companies. The resulting false report was used against him in applying for a loan, getting a new job and other aspects of his life. He ultimately lost his house, his marriage fell apart, and he ended up destitute. In those days, individuals had no legal right to see these confidential reports. It was the publicity surrounding cases like Kevin Ireland's that led to the passage of the Fair Credit Reporting Act of 1970, which mandated the disclosure of such information collected about private individuals. A remedy was found, but not before a great deal of corporate abuse and government neglect caused a great deal of unnecessary suffering.

This story is both an eerie premonition of the data collection that is taking place today and impossibly quaint by comparison. Among the many unpleasant revelations made by Edward Snowden about the activities of the NSA is the cooperation — some would call it collusion — by Internet companies in spying on Americans. He specifically named several companies, among them customer favorites such as Google, Microsoft, Facebook, Yahoo, Apple and others. Since the warrantless surveillance program was first brought to public attention, it has been known that the government attempted to get companies to share the data that it has been collecting from private citizens. But what wasn't previously known was how these companies weren't reluctantly handing over data demanded by subpoenas or other official requests, but that many have been working hand in hand with the intelligence community for years. A former employee at AT&T told Frontline about a room at one of the company's major data hubs that had a door but no handle. After some probing, he discovered that government computers inside the room were splitting the signal of all Internet traffic going through the hub, so that it had access to every bit of information traveling on AT&T's lines. This was not the government using clandestine methods to intercept data, but working right inside the company's own system. To what extent this model is followed elsewhere is anyone's guess, but it would be naive to suppose this is an isolated case. It would also be naive to believe that the government would not resort to coercion and/or secret means of obtaining information if corporate cooperation was not forthcoming.

Evidence of coercion has already emerged. The Patriot Act authorizes the government to issue "national security letters" in its quest for data about terrorists. Nearly 60,000 such letters are reckoned to have been issued since the passage of the law. The president of a small internet firm in New York described for Frontline how the letter he received from the FBI contained a gag order. He was not permitted to reveal what information the FBI was looking for, nor even to disclose the existence of the letter to any other person, including his attorney. The threat of criminal penalty for failing to comply was implicit. He bravely came forward to disclose what the government was doing, but his case is the tip of the proverbial iceberg. How many innocent business owners and others have been caught up in this, with no apparent legal recourse other than to give in without even being allowed to ask a question or challenge the legality of the order? We just don't know.

One other thing we do know is that many corporations have not been honest with the public about their collection and use of private data. A California state senator who was sponsoring a bill to protect private data had a face-to-face meeting with Google founders Larry Page and Sergey Brin, in which she alleges that they lied to her deliberately about the company's data-gathering practices. The high-tech industry as a whole lobbied against the bill, which was consequently watered down. Only later was the extent of Google's data collection brought to light: how it tracks our searches, scans the contents of our emails, and otherwise sells every bit of information it can accumulate to other companies in the form of advertising or just raw data that can be used to market products and services. In general, we prefer to imagine that these practices are for our own benefit, as more targeted marketing leads to better choices when we shop online. But we must face the reality that (a) we have no idea who these other companies are and how exactly they are using our information, and (b) we have no idea how much of this information is also ending up stored in the government's vast security archives.

Needless to say, criminals are also after your data. There are so many pieces of you out there, it is simply impossible to be confident that every company that has some bit of information about you stored on its servers is protecting it with the degree of concern that you would expect. As we know from the theft of credit card numbers from Target and other similar cases, identity thieves are not stealing your data by hacking into your personal computer, but by and large are scooping many people's data from company servers that are supposedly utilizing sophisticated methods of encryption not ordinarily available to the average customer. With the NSA actively building programs to break even the most advanced encryption, it's a safe bet that it will have access to any data the cyber-criminals will.

What little control we have we are not even exercising as well as we could. Two of the security experts interviewed by Frontline for the documentary gave a separate interview in which they talked about steps individuals can take to protect themselves. While some of these suggestions are relatively simple and reasonable — for example, only use search engines that don't track your online movements, avoid social media altogether or at least close accounts you don't really need , and download software that blocks unsolicited data collectors from your browser — they seem inadequate to the much larger problem of how society as a whole is being misshapen by the digital invasion of our lives. Even if one could sufficiently keep oneself separate from the worst excesses — reasonable to do on a PC or laptop, but not so easy on a mobile device, at least not yet — one is left with the feeling that safeguarding one's own data will not make much of a difference. It is not unlike the feeling of vulnerability we all felt after the 9/11 attacks, when no amount of personal comfort or financial security was sufficient to shield us if the country came under sustained attack. Who wants to survive a cataclysm only to live in a hellscape? Only a survivalist zealot could look forward to such a fate, and would want to live in a society repopulated mostly by the offspring of fanatics. If we wanted to live like that, we would do no worse at the hands of the jihadis. Of course this did not happen, but the invasion of our private spaces has become incomparably more pervasive and unavoidable. You could throw your mobile phone away, stop using the Internet and go back to doing all your banking at the teller window. But how do you propose to live in the only house left standing in a neighborhood that has been devastated?

The Last Lines of Defense

The recent case in which the Supreme Court ruled that cell phones cannot be searched during an arrest without a warrant (Riley v. California) has given false hope to those who still believe that the judiciary remains a bulwark against the excesses of the other branches of government. A majority of judges in the federal system cannot be relied upon to curtail the powers of the executive branch, especially in matters of national security. The unanimity of the court in Riley is misleading because it masks deep divisions on matters of civil liberties. It is likely that the justices found common ground in this particular case only because they all use mobile phones themselves and could more easily imagine the impact of an unreasonable search. They have been less than understanding about other cases involving individual rights, such as voting, to cite a recent example. (Note to advocates in future cases: Hit the justices where they live. They may suffer from a lack of empathy but are out to protect themselves just like everyone else.)

Even if you can protect yourself,
how do you propose to live
in the only house left standing?

The court that administers the Foreign Intelligence Surveillance Act (FISA) is likewise not a reliable defender of our rights. More accurately, since it acts in secret, we have little way of knowing whether it is protecting our rights or not, which in effect makes it useless as a means of securing civil liberties. Reports that have surfaced in the media about decisions made by FISA judges have disclosed that the number of instances in which the court does not issue a subpoena at the request of intelligence and law enforcement agencies is vanishingly small. The judges themselves take offense at the notion of being rubber stamps for overzealous snoops, but without a record for the public to follow there isn't any way for them to shed that impression. They are themselves caught in the web the government has created to maintain secrecy about its activities. The very idea of a secret court contradicts the basic principle that the courts must act in the public's best interest. Our entire system of government is predicated not on mythical exceptional qualities of the American individual but on the avowedly cynical idea that everyone must be held accountable because no one's word alone is good enough to be trusted. The Constitution has been effective through the centuries precisely because it places trust in the system and in the law, not in the people elected or appointed to administer them.

The extreme secrecy of the executive branch, the cravenness and haplessness of the Congress, and the aloofness of the courts leave us with only the fourth estate to stand between us and the abyss. But the downfall of serious journalism in the United States has come at the worst possible time. When 9/11 happened, it was impossible not to worry that we just do not have a news media any longer that is capable of dealing with the enormity of the circumstances in which we find ourselves. There are exceptions, of course, but by and large the news media has rolled over and played dead in the face of government pressure. To its everlasting disgrace, The New York Times had the story about warrantless domestic surveillance ready for the front page during the 2004 presidential campaign, but caved in to the Bush Administration's demands to table it. The Times' Executive Editor Bill Keller was told personally by President Bush that the newspaper would have blood on its hands if there were another terrorist attack. How cowardly the Times looks now in retrospect compared to The Guardian, which in 2013 gave the Obama White House precisely four hours to respond to the Snowden revelations before it published the story. It paid no heed whatsoever to the age-old canard that its publication would "endanger national security."

The problem with the coverage of the security state isn't Fox News or right-wing talk radio, whose audience is finite and already inclined to xenophobia and paranoia. The problem is the rest of the so-called mainstream media which is mostly so afraid of being accused of helping terrorists or being politically biased that it bends over backwards to censor itself. When the government persists in its simplistic formulations, it is the reporter's responsibility to test these formulations for accuracy and validity. Responsible journalism does not aid and abet terrorism, no matter how many times the government says it does. The biggest help we could give to terrorists is to shut ourselves up and thereby undermine the values of openness and honesty that we claim to hold dear. The media's unforgivable boosterism — for the "war on terror", for the invasion of Iraq — is yet another precious gift we have handed to our enemies. We have embarked on a mission that they will never remotely have the power to carry out on their own: to destroy ourselves. Worst of all, we have done it with blind enthusiasm.

From Citizens to Subjects?

We teeter between what a magazine a century ago during the Progressive Era called "the twin stupidities that dull the conscience of American municipalities — the optimism which says that all is so good that nothing need be done, and the pessimism which says that all is so bad that nothing can be done." Many sincere people in government were caught up in and corrupted by a system that gathered too much power to itself, and who became so convinced of the right of what they were doing that they lost the ability to be critical of what was happening around them. On the other hand, many people look upon the leviathan and despair. For them, the surveillance crisis is just another example of the mighty government and corporations taking advantage of powerless individuals. Hasn't the FBI always kept files on private citizens? What can anyone do about it? It appears doubtful whether President Obama could do much to curtail the power of the intelligence agencies even if he were determined to do so. It is clear from the Frontline documentary that presidents and their advisors are routinely misled by intelligence chiefs. James Clapper, the Director of National Intelligence, when asked in a televised Congressional hearing whether the government was in fact gathering large amounts of data on the communications of American citizens, said no. It was an outright lie. If Presidents can't even get to the bottom of the problem, how are they going to fix it? And if they can't fix it, what are the rest of us supposed to do?

This is a grave mistake. There is no advantage whatsoever to living in a democracy if we are unable to exercise our will upon those we elect to office. Believing that America is somehow immune from the abuse of authority that can lead to tyranny is a folly that could cost lives. The depraved behavior that we witness daily in the halls of Congress ought to be enough to convince us otherwise. We might very well conclude that the President, through his signal failure to unravel the ever-tightening web of surveillance, is merely reflecting the will of the people. If we fear radical jihad more than being caught in this web, regardless of the vanishingly small likelihood of any particular individual being killed in a terrorist attack; and if we choose to believe that the government is working in our best interests by scanning all of our communications in an earnest search for would-be mass murderers, then we have the right to indulge our ignorance. But the President of the United States has no such right. It is one thing for the everyday citizen to remain oblivious of crimes that are being committed in their names, or to turn a blind eye to gross violations of the Constitution that are being perpetrated under the cover of arcane legal justifications. It is another thing entirely for the Commander in Chief, who swears an oath to "preserve, protect, and defend the Constitution of the United States" — not, as is often misstated by presidents themselves, to protect the country or its citizens — to perpetuate the desecration of this sacred trust through his own actions and inactions.

We have self-evidently not metamorphosed yet into a police state in the style of North Korea, but our government has gathered to itself all the surveillance tools it needs to become one. Security zealots, hackers and cyber-criminals the world over are no doubt seething with envy at the depth and reach of the NSA, and, moreover, frantically trying to figure out how to get their hands on our hardware and software. The excesses attributed to the new security state so far are scattered enough to have left an impression of randomness, so that calls for tightening the leash on the intelligence agencies often feel at odds with the blunt reality of living in a world teeming with violent fanatics. It is a simple matter to denounce those who cry loudest for relief from governmental intrusion as trading in conspiracy theories. But for those who have already been caught in the the government's undiscriminating digital net, there is no theory about it.

It is high time that shrill voices that claim to be standing up for liberty turn their attention to where liberties are being seriously threatened. It is time to stop applying the word 'tyranny' to every trivial point of political disagreement until it loses all meaning. It is also time for those who see nothing but evil in the intentions of the American government to wake up to the very serious hazard we face from individuals and entities whose contempt for our civilization and whose desire to destroy it is spoken in the plainest possible terms. This is an arena in which many conservatives and civil libertarians need to realize that they are on the same side and, together, constitute a considerable majority of the populace. The idolatry of political labels (conservative vs. liberal, Tea Party vs. Occupy Wall Street, Fox vs. MSNBC, etc.) threatens to do even more harm than has been done already. As long as all those who are truly concerned with freedom — not craven public officials who carry the Constitution in their pockets as a token of their patriotism — remain stubbornly entrenched in their respective bunkers, there is little hope of bringing rationality back to the business of national security. This not a zero-sum game: we need not choose between an American police state and an Islamic caliphate. Our democracy is not so fragile that it cannot survive this particular menace, which is not even as existential a threat as the one we faced from the Soviet Union a mere 25 years ago. But if we don't engage in this debate actively as citizens, and hold our elected officials' feet to the fire, and stop patronizing those demagogues in the media who only serve to gain by keeping us at odds with one another, then our cringing fear of Islamic extremism will increasingly make the prospect of a police state ever more likely.

Someday we will elect a Nixonian president — it's happened before, and will happen again — whose instinct for self-preservation will overwhelm any scruples about using the long arm of the law for political benefit. Didn't we recently have a vice president who did more than anyone else to engineer the massive expansion of surveillance programs, and for whom the boundary between national security and personal power were blurred beyond recognition? Had circumstances enabled him to take that last step into the Oval Office, what sort of Commander in Chief do we suppose he would have been? His record does not suggest that he would have exercised restraint. Not he, the defender of liberty who called the water boarding of terrorist suspects a "no-brainer". We dodged the bullet of a Cheney administration, but there are plenty of others as power-hungry as he was elbowing their way up the food chain even as we speak.

We have some way to go before our society plunges into the dark night of totalitarianism. But we have already built an apparatus capable of sustaining absolute power. A resolute president need only turn on the switch, and all the information necessary to turn citizens into subjects will appear on his computer screen. Why on earth would we want to make it even theoretically possible for our government to exercise that degree of control over us? Why would we volunteer so much of our personal information to a clandestine enterprise about which we know so little? Whether Edward Snowden is a hero or a traitor is of little importance to the questions of life and death that we face. He has opened the window on a potential calamity, and we will have no excuse if we just turn away and refuse to look. If we don't change course soon, President Obama may be remembered mostly as the last president who had a realistic chance to halt America's descent into tyranny, and did nothing.


July 16, 2014


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All writings on this site are copyrighted by Barry Edelson. Reprinting by permission only.