Mind you, that question does not address the programs themselves. The programs themselves appear to involve metadata mining of telephone company call records and content analysis of internet communications company transmissions on a broad scale that now subjects the entire American public to selective but ongoing surveillance of elements of its electronic communications. If you want to imagine where a Big Brother surveillance and police state might have its beginnings, you would do well, along with security cameras, to look at these programs.
First, though, there is the Obama administration’s own embarrassing initial public defense of the programs once they became known.
Director of National Intelligence James Clapper said about the now-disclosed PRISM internet communications surveillance program that it
cannot be used to intentionally target any U.S. citizen, any other U.S. person or anyone located within the United States.
Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats.
President Obama later defended PRISM and the adjunct telephone surveillance by asserting that they
make a difference in our capacity to anticipate and prevent possible terrorist activity.
We will return to Clapper’s “cannot” and “intentionally” later, but for now we need to be clear about what these affirmations of the programs efficacy reveal. Contrary to any reassurance about the programs – “Oh, well, you know, they’re really quite effective, so relax” – these defenses should actually unsettle us with one of two prospects. One is that the President and his director of intelligence do not fully understand the issue of concern; another is that they are attempting to distract us from it. They are both very smart men: they are attempting to distract us from it.
I do not suggest the President is trying to distract us out of malevolence. No. He inhabits, as do all presidents fulfilling their most solemn duty, national security mind. He said in Oslo five years ago, when accepting the Nobel Peace Prize,
[A]s a head of state sworn to protect and defend my nation, I cannot be guided by [Gandhi and King’s] examples alone. I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: Evil does exist in the world. A non-violent movement could not have halted Hitler’s armies. Negotiations cannot convince al Qaeda’s leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism – it is a recognition of history; the imperfections of man and the limits of reason.
Nothing he learns on a daily basis is going to alter that perspective. The rest of us can hope or pray, “I hope they make the right decision. I hope they do the right thing.” But a president – a prime minister of Israel, only seventy years after the Holocaust, surrounded by pathologically hateful enemies and the prospect of a nuclear Iran – cannot hope someone else makes the right decision. The decisions belong to that one person, the weight of responsibility for all those lives on that person. How many of us could bear it?
So with the best of intentions, the temptation will always be great to believe that the concept of privacy, reduced to the emergent patterns of data mining or the puzzle pieces of sweeping secret court orders, which may appear only ideally related to the abstracted totality of the liberty of our lives – well, is an expendable thing weighed in each individual instance against the potential preservation of thousands or more lives. And that is precisely why – when the perspective of government officials becomes skewed, with even the best of intentions – we are a democracy, with a constitution and more than one branch of government, and the rule of law, and a voice for the people empowered to say no,
The people, however, need to see one issue clearly. The critical issue, the one relevant to privacy and liberty concerns, is not that of effectiveness. A police state will always be the more secure state. We have always known that. Liberty has always been a currency of exchange for security. Of course, the U.S. is not on the verge of being a police state. That is a hypothetical extreme. But raising extreme hypotheticals serves a purpose: it establishes the acceptance of boundaries. It informs us that we think about a principle within limits, and that the principle is not absolute. In this matter there is a principle, of privacy and the liberty it helps ensure, and there is a goal, our security, and the challenge as always is to balance them against each other. The Constitution of the United States tells us where from the very start we have placed the greater weight. In this matter, the American people have not had adequate informed opportunity to express where they believe the limit should be placed.
So far, there is little suggestion that the programs are literally unconstitutional, though much opinion that they are contrary to the spirit of our freedoms.
But while the administration and lawmakers who supported the telephone records program emphasized that all three branches of government had signed off on it, Anthony Romero of the American Civil Liberties Union denounced the surveillance as an infringement of fundamental individual liberties, no matter how many parts of the government approved of it.
“A pox on all the three houses of government,” Mr. Romero said. “On Congress, for legislating such powers, on the FISA court for being such a paper tiger and rubber stamp, and on the Obama administration for not being true to its values.”
Of course, all those who have played a role in the authorization of the programs, or in their congressional oversight, such as California Senator Diane Feinstein, have been quick to defend them. That is how it works. People defend their own actions.
“It’s called protecting America.” Sen. Feinstein said.
That is what people argued, too, when the Bush administration established a torture regime. It is protecting America. It is keeping us safe. It works. That was all arguable, but it was also a different matter. The question for many – the first question – was whether it was moral, and that question had long ago been answered in multiple ways, including by legally binding United Nations Convention, signed by President Reagan in 1988 and ratified by the senate in 1990. Efficacy may play a role in mitigation of a moral imperative (as in a theoretical ticking clock scenario) and its absence may have moral implications, but it does not ipso facto establish the moral ground.
Nonetheless, whenever transgressive or questionable acts take place, the misdirection will occur, and we will be told by a White House spokesman that
the kind of surveillance at issue “has been a critical tool in protecting the nation from terror threats as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.”
Little doubt – but is it farther than we wish to go? The spokesman, the ironically named Josh Earnest, added,
The president welcomes a discussion of the trade-offs between security and civil liberties.
The President was not welcoming the discussion before news of the programs was leaked. He appears to have been content with its secrecy then. Obama’s openness to a discussion now is really a rather guilty tell, as they say in poker. He knows these programs are leading us into a changed world, likely never to revert to the one that came before. With the revelation of their existence, what he guiltily kept secret before he now acknowledges is fit for profound national debate, and not simply over the matter of effectiveness. This is itself profoundly revealing about the President’s own comfort in defending the programs, and even more, about how significant the programs are in relation to American public’s knowledge of them and their implications.
Inextricably related to these notions of privacy and liberty is that of secrecy, an issue much in the news in recent years and currently with the trial of Bradley Manning. Noah Feldman of Harvard Law School offered the following critical observations about the secrecy of these programs.
What happened in [the Verizon surveillance] case is different — and much more threatening to democratic values. Section 215 of the Patriot Act says the government can order turnover of “any tangible things” for an investigation to protect against international terrorism or clandestine spying, provided only that the activities under investigation aren’t solely protected by the First Amendment. Read narrowly, this language might require that information requested be shown to be important or necessary to the investigation. Read widely, it would include essentially anything even slightly relevant — which is to say, everything. Like metadata for every call every day and every second in the U.S.
When the Foreign Intelligence Surveillance Act court granted the order here — and there must surely be similar orders for all the other telecom carriers — it appears to have applied the broadest possible reading of the law. That reading might be correct. But the problem is that we had no way of knowing it was even in effect.
A law only exists as it is interpreted by the courts. In fact, as Oliver Wendell Holmes famously put it, you could define law as nothing other than a prediction of what the courts will do. So when courts interpret the law, they are in practical effect making the law by saying what the law is.
That is why legal interpretation needs to be public — because it has the same effect as lawmaking. When it is secret, we have in effect secret law. And secret laws don’t belong in democratic systems. Countries that have them don’t even have the rule of law. They have rule by law, which is a very different thing, when the law isn’t supervised by the people but is rather used to manage and control them.
The first thing I said we need to see clearly is that the essential question here is not one of effectiveness. The second thing we need to see clearly is that reassuring words from government officials that ignore structural legal deficiencies are an insult, both to the public’s intelligence and to the proper functioning of a complex system of legal protections. Every government representative found to have offered special attention to a wealthy donor from whom gifts were accepted reassures the public that the donations and gifts had no influence on the treatment afforded that fine citizen. This is often shortly before indictments are handed down. There are laws that govern permissible relations between government officials and their constituents precisely because human beings are endlessly corruptible and the citizenry should not have merely to take their elected representatives at their word on matters of trust.
When James Clapper claimed that PRISM “cannot be used to intentionally target any U.S. citizen,” that is almost certainly not what he really meant. “Cannot” suggests physical or some other unbreachable limitation. In all likelihood, Clapper’s “cannot” really means will not in accordance with the rules, to which intentionality and unintentionality bear some relation. When the USA Patriot Act first passed in October 2001, one of its many highly controversial provisions provided for the issuance of National Security Letters – effectively court ordered search warrants – that do not require prior FISA court approval: in other words, court orders without the court ordering. They were to be issued by the FBI. Repeated reassurances were offered at the time that such extraordinary powers would not be abused. The FBI’s Office of General Counsel disseminated Warnings to field offices about the potential for abuse.
NSLs are powerful investigative tools in that they can compel the production of substantial amounts of relevant information. However, they must be used judiciously.… In deciding whether or not to re-authorize the broadened authority, Congress certainly will examine the manner in which the it. Executive Order 12333 and the FCIG [Attorney General Guidelines for FBI Foreign Intelligence Collection and Counterintelligence Investigations] require that the FB[I] accomplish its investigations through the ‘least intrusive’ means. Supervisors should keep this in mind FBI exercised when deciding whether or not a particular use of NSL authority is appropriate. The greater availability of NSLs does not mean that they should be used in every case.
One presumes they even meant it – and remember about the current revelations that
President Obama and his national security leaders have asserted that vigorous oversight of government surveillance of phone calls and Internet data exists.
Well, regarding the National Security Letters, which ultimately were issued not only by the FBI, but also the CIA and NSA, by March 2007,
Bipartisan outrage erupted on Friday on Capitol Hill as Robert S. Mueller III, the F.B.I. director, conceded that the bureau had improperly used the USA Patriot Act to obtain information about people and businesses.
According to the Washington Post that month,
The Justice Department’s inspector general told a committee of angry House members yesterday that the FBI may have violated the law or government policies as many as 3,000 times since 2003 as agents secretly collected the telephone, bank and credit card records of U.S. citizens and foreign nationals residing here.
Inspector General Glenn A. Fine said that according to the FBI’s own estimate, as many as 600 of these violations could be “cases of serious misconduct” involving the improper use of “national security letters” to compel telephone companies, banks and credit institutions to produce records.
FBI director Robert Mueller took responsibility for the widespread violations.
“How could this happen?” Mr. Mueller asked rhetorically in a briefing at the headquarters of the Federal Bureau of Investigation. “Who is to be held accountable? And the answer to that is I am to be held accountable.”
Mueller, of course, six years later, remains director of the FBI, raising the question, which requires no answer, of what it meant then to be held accountable for massive government invasions of the privacy of citizens and residents, or what it means now for a president, a director of national intelligence, and their spokespeople to reassure the nation about what can or cannot be done by secret programs whose surveillance is approved by secret courts with oversight by select members of congress who cannot reveal what they know.
And on the matter of the check and balance of oversight and those reflexive protestations about the consequent responsible application of these programs? In 2012, the FISA court received 1856 surveillance requests from the executive branch, five percent more than the year before. It approved everyone of them.