In a June 9 interview with The Guardian newspaper, Edward Snowden, the National Security Agency whistleblower, was asked what he feared most now that he had revealed, in part, the pervasiveness of the U.S. Government’s surveillance state. In response he said he feared that nothing would change, and unless something happens to shake up the story further, it appears nothing will.
We’re over a month out from his revelations, and no wheels are turning in Washington to rein in the intelligence community or to preserve the privacy of the people. Also, media coverage has defaulted to the easiest possible storyline: Where’s Snowden? And while this might make for good television, we should reflect that this is the kind of coverage that would occur if dogs did cable news shows about squirrels. By the time you read this, the world’s most famous leaker may finally have moved on from the second-floor men’s room of the Moscow international airport, but it is unlikely that coverage of the surveillance state will get any better in the coming months.
And then the story, like the surveillance itself, will disappear from view, fading into the background, powerfully unsettling, but unseen.
I have sympathy for the journalists trying to cover this story. In the grandest sense, all the pieces are there and it seems like it should write itself. The Fourth Amendment to the U.S. Constitution clearly reads, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.” The material that Snowden leaked shows that the National Security Agency is in gross violation of that foundational law, without which liberty is regularly eroded and under constant threat. Getting people angry enough to take to the barricades should be an uncontested layup. But then come the details, like an army of devils, to confound the debate. People have doubts. Sure, Snowden said that the NSA is watching everybody. But what does that even mean? Total surveillance seems both impossible and at the same time, somehow conversely non-threatening. Haven’t you noted that most folks are pretty blasé about it all? First, some of them dismiss the entire concept of privacy in the age of Facebook, data mining and “the cloud.” Privacy . . . ugh. That is SOOOOO 1980s. Get with it, gramps. Second, Obama says don’t sweat it, we’re not really listening to your phone calls anyway, so what’s the big deal? Third, there is a feeling that “if they’re watching everyone,” that means that “they’re not really watching me, are they?” Those of you who enjoy the implicit Catch-22 reference of a story based around “Snowden’s Secrets,” will probably see such logic as being “reverse Yossarian.”
But this is a big deal, at least to the Surly Bartender. So much so, that after growing bored with the way the story was being handled by the major media outlets in the States and Europe, I decided to dig into some of the leaked material itself. Also, I read up on the laws that govern national security and the history of their development. As I did, a few things became very clear. One, the laws that are meant to regulate intelligence agencies are mindbendingly opaque and therefore predisposed to abuse. Two, the congressional committees that ostensibly have oversight responsibilities are unable to fully perform their duties, as everything about the programs is classified, sometimes to the point that even the committee members themselves are barred from knowledge of the programs. Three, the provisions for judicial review of the actions of the intelligence community are, by design, laughably neutered under current law. And four, the CIA and the NSA have a terrible track record at staying within the established boundaries meant to protect individual civil liberties.
I’ve come away from the process with the feeling that what Edward Snowden revealed to the press is just the tip of a rather more sizable iceberg. Also, due to two separate events in the past year, I think that either my 71-year-old mother has been classified an enemy of the state or I have. Either way, we know without doubt that our telephone conversations have been recorded. Stick with me and I’ll explain it all in the next few pages.
Any communications acquired through the targeting of a person who at the time of the targeting was reasonably believed to be located outside the United States but is in fact located inside the United States at the time such communications were acquired, and any communications acquired by targeting a person who at the time of targeting was believed to be a non-United States person but was in fact a United States person, will be treated as domestic communications under these procedures.
The previous paragraph is a good example of why the debate surrounding the United States’ surveillance of private citizens has misfired and largely stalled. Edward Snowden could only do so much before the black-hole density of the material reasserted gravitational force. And, for a quick chuckle before we move on to the serious issues at hand, you should know that the above legalistic garble comes from an internal explanatory National Security Agency memo. I’m sure the men and women on the receiving end of that communiqué looked at one another and said, “Well, thank the all-seeing God they cleared that up!”
Verbal thickets like this must be pushed through constantly when doing a close read of surveillance law and the memoranda surrounding its application. But having stuck with it for a few weeks (and what seems like hundreds of painfully sober hours) I’ve got a much better idea of who is being surveilled, how deeply and under what legal pretext. My intention is to present that to attentive readers in one twenty-minute session, which also happens to be the average duration of a late summertime beer. Once we’ve got those basics nailed down, we can move on to debating if such surveillance should be occurring in the first place, but to do so beforehand is foolhardy.
We’ll start with a look at how we got here in the first place.
A Brief History of the National Security State:
In 1975 the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities was gaveled to order by Senator Frank Church. The Church Committee, as it became known, was convened after a series of revelations came to light that the intelligence services of the United States (the FBI, the CIA, the National Security Agency [NSA], Military Intelligence and a host of others) were engaging in questionable — and in some cases, outright illegal — activities. These activities, many first exposed by Seymour Hersh in a December 22, 1974, article written for the New York Times, revealed covert actions that included assassination attempts against foreign leaders, attempts to destabilize governments around the world and the direct surveillance of U.S. citizens. Among other insights, Hersh reported that the CIA during the Nixon Administration had conducted widespread, illegal surveillance of the antiwar movement and other groups considered dissident in the United States of America.
This was against the law at the time.
Particularly important for the debate today — as we discuss the widely-reported and little-understood government seizure of “metadata” from all phone calls and emails made in the United States — was the discovery by the Church Committee that from the 1950s to the 1970s the CIA and the FBI had intercepted, opened and photographed more than 215,000 pieces of mail. This was done under a program called “HTLINGUAL.” The program was supposed to be limited to gathering “mail covers:” the data on the outside of the packages or envelopes, such as the name of the sender, the recipient, the postage mark, etc. But, in the heat of the chase, those legal boundaries were overstepped and hundreds of thousands of packages were opened and their contents, as noted above, recorded. As we hear about metadata collection, one is left to wonder if the way the “mail cover” program metastasized decades ago is happening again today.
The concern of the Church Committee (and the Pike Committee in the House of Representatives) was that the intelligence agencies of the United States were engaging in unconstitutional surveillance, particularly in regards to the Fourth Amendment’s guarantees of protection against illegal search and seizure. But these committees were also well aware of the dangers of espionage against the United States during the Cold War, and as such did not set out to fully dismantle the programs. Rather, they hoped to create a framework under which surveillance systems could be monitored and legally reviewed.
The most important result of these committees was the passage of the Foreign Intelligence Surveillance Act (FISA) of 1977. This law stipulated that surveillance of non-citizens could be engaged in and continued for a year without a warrant, and if a U.S. citizen were a subject of the surveillance, then a warrant — secured from the newly created Foreign Intelligence Surveillance Court — would have to be obtained within 72 hours after the surveillance began. These rules were set into place with an understanding that intelligence agencies needed to be able to move with both speed and agility to protect the interests of the United States.
The other major change that occurred in the wake of the intelligence community’s scandals of the 1970s was the creation of both the Senate and House Select Committees on Intelligence. Those committees were tasked with oversight of intelligence-community activities and the creation of laws promulgated to regulate such activities. While all Senators and Representatives were ostensibly to have access to classified intelligence assessments, the more sensitive information — sources and methods, budgets and specific programs — was limited to Intelligence Committee members. Under “certain circumstances,” however (which is a vague definition, but the best available from the Senate Intelligence Committee website), the President could further restrict access of covert actions to a subset of those committees known as The Gang of Eight, which includes the Speaker of the House and the House Minority Leader in Congress, the Majority and Minority Leaders of the Senate, the Chairmen of their respective Intelligence Committees and the ranking members of the minority in both committees.
What is often frustrating to members of those committees, is that the information they receive is classified and cannot be discussed with those who do not have clearance — also known as everyone else in the universe.
There were no major changes to FISA before the terrorist attacks of 2001, but after those attacks, the changes came in a hurry, particularly in the form of the USA PATRIOT Act, passed through Congress in October of 2001. The law, which has many moving parts, writ large, allows intelligence agencies great leeway to gather foreign intelligence information from both U.S. citizens and non-citizens alike. In order to remove the wall that supposedly existed between the FBI and internationally-authorized intelligence agencies (notably the NSA and the CIA), it redefined gathering foreign intelligence as a “significant purpose” rather than the “primary purpose” of FISA-based surveillance. In effect, American citizens were now fair game in the intelligence hunt, and whatever evidence the NSA discovered could explicitly be shared with the FBI, whether it was terrorism- related or not.
In a nod to the growth of the era of interconnected computing, under the PATRIOT Act provisions were made to allow intelligence agency access to “packet-switched networks,” which by 2001 basically meant “the internet.” Some fuss was raised about how that would allow agencies the knowledge of people’s home addresses, as IP addresses give your physical location. Still, the law sailed through the Congress with only one Senator, Russ Fein-gold (D-Wisconsin), voting against. The vote in the House was similarly lopsided (357 for / 66 against).