In a one-two punch to the surveillance state, a federal judge’s ruling and a presidential advisory report have made serious waves on the excesses of the National Security Agency (NSA), whose workings have been one of the biggest stories of the year. Yes, Mssr. Foucault, there is a Panopticon, and it was based in Ft. Meade the whole time.
The judge, Richard Leon, was appointed to the bench by amateur artist and former president George W. Bush, and is not known as a card-carrying member of the American Civil Liberties Union. Judge Leon issued an injunction against the NSA for rampant, indiscriminate surveillance of virtually the entire public that is “most likely unconstitutional” as well as “almost Orwellian.”
On late Friday, Dec. 20, the Obama administration “moved . . . to prevent a federal judge in San Francisco from ruling on the constitutionality of warrantless surveillance programs authorized during the Bush administration,” Charlie Savage and David Sanger reported, informing the court for the Northern District of California that the “recent disclosures about National Security Agency spying were not enough to undermine its claim that litigating the case would jeopardize state secrets.”
The fugitive IT contractor Edward Snowden, 30, shook up the establishment in June by pilfering millions of confidential documents that confirmed what many had suspected for years: Washington had turned its immense information-gathering apparatus on the American people in the name of fighting terrorism. James Clapper, the national intelligence director, claimed repeatedly that bringing to light what the government of the United States has been doing, for the ostensible purpose of keeping the public safe and therefore in the dark, is tantamount to “helping foreign adversaries evade detection.”
These disclosures to which Clapper and others allude were not so much revelations of anything new, but verifications of what the “radical fringe” was reporting for a long time. Further, what the NSA was up to was only an updated version, with the latest technology, of what it had been doing for decades. More than a decade after the worst civilian attacks in the country’s history, the pressure and the burden of proof is placed on the self-described guardians of the City on the Hill.
From the end of the Second World War until 1975, when Congress was first notified about what had been happening, intelligence agencies — not only the NSA — were surveilling certain sectors of the population that were seen as potentially seditious. These operations do not appear to have had much to do with real national security.
In his 2011 book Manufacturing Hysteria, historian Jay Feldman outlined how all of this has happened before, and worse. “During the 1960s and early 1970s,” he wrote in the book, subtitled A History of Scapegoating, Surveillance, and Secrecy in Modern America, intelligence “and law-enforcement agencies came to regard any individual or group that challenged or even merely questioned the status quo as ‘the enemy’ and, as such, deemed them fair game for the most underhanded and unethical sorts of dirty tricks.” Feldman continued,
By this logic, peaceful American citizens were transformed into the equivalent of foreign combat troops or foreign espionage/sabotage agents, thereby justifying the use of whatever legal, illegal, and extralegal methods were necessary to defeat them. (p. 254)
In 1972, the Senate Subcommittee on Constitutional Rights released a report called Army Surveillance of Civilians. The 104-page document addressed the concerns of the state toward the antiwar and civil rights movements and their efforts to keep tabs on them, concluding that their intelligence reports “were notable only for ‘their utter uselessness’” and charging the Army with “wasting time, money and manpower, and infringing on the rights of the citizens it was supposed to be safeguarding.” Feldman quoted President Nixon’s assistant Tom Huston as recommending that Nixon grant “intelligence and counterintelligence agents the authority to
(1) Monitor the international communications of U.S. citizens; (2) Intensify the electronic surveillance of domestic dissenters and selected establishments; (3) Read the international mail of American citizens; (4) Break into specified establishments and into homes of domestic dissenters; and, (5) Intensify the surveillance of American college students. (pp. 291, 292)
“It would appear that military intelligence put great faith in the gathering of large amounts of information but did little to develop theories concerning its use,” the Senate subcommittee report read, referring to what is now called data-mining. In The Secret Sentry: The Untold History of the National Security Agency (2009), Matthew Aid noted that the NSA was “forced to admit publicly in August 1975 that it had engaged in illegal domestic eavesdropping since 1945.”
Shane Harris, in his 2010 book The Watchers: The Rise of America’s Surveillance State, observed, “In the weeks after the [9/11] attacks the NSA asked telecom executives for access to their customer records as well as direct, physical access to their data. The NSA specifically asked companies for their call-detail records, the logs of whom customers had called, on what days, and how long they had talked.” Harris added that the telecoms “kept these records for routine billing matters,” and the Agency “wanted them to feed the BAG,” their acronym for what they call their “Big Ass Graph.”
Aid added crucially that “a number of former NSA officials have expressed concern that the number of targets inside the United States reportedly being monitored appears to be overly large when compared with the actual threat.” In August 1945, the predecessor of the NSA, the Army Security Agency, conducted a program that sounds familiar today. The agents
asked America’s “Big Three” cable companies to give it access to all international telegraph traffic coming in and out of the United States as part of a Top Secret program called Shamrock. The U.S. Army knew from the outset that the pro-gram was highly illegal and dangerous, but senior military officials concluded that the risks were worth it to get at the raw traffic. Under extraordinary pressure from Washington, the cable companies reluctantly agreed to cooperate, but only if the U.S. government would immunize them against any civil or criminal actions if the operation was uncovered. (p. 293)
Aid quoted an unnamed “NSA staffer [who] had this to say in an anonymous e-mail posting sent to a magazine: ‘It’s drilled into you from minute one that you should not ever, ever, ever, under any fucking circumstances turn this massive apparatus on an American citizen. You do a lot of weird shit. But at least you don’t fuck with your own people.’” (Emphasis added.) Aid went on to say that there was a “grim acceptance among virtually all of the former and currently serving NSA officials that, sooner or later, the details of the agency’s domestic eavesdropping programs will be disclosed publicly. The con-cern felt by most of the officials is that the agency, for better or for worse, will bear the brunt of what an NSA retiree called ‘the frightful harvest’ once it becomes known what NSA has done since 9/11.”
Matthew Brzezinski, in 2004, wrote a projection of what would happen by 2008 and his anticipations did not always track with the realities of the present. In Fortress America: On the Front Lines of Homeland Security — An Inside Look at the Coming Surveillance State, Brzezinski wrongly thought every American citizen would have to have “new biometric smart cards” by ’08 but rightly recorded that the program formerly known as Total Information Awareness (TIA) morphed into what is now known by all as PRISM. “The widest-ranging list,” Brzezinski wrote, “might be provided by” the TIA, a “controversial arm of the Pentagon’s Defense Advanced Research Projects Agency . . . launched in 2002, and subsequently scrapped by Congress in 2003.” Quite accurately, TIA became “a sprawling data-mining operation whose electronic tentacles reach into every crevasse of American daily life.” The rationale for such extensive and deep mining of massive amounts of information is spelled out in lucid detail.
In any case, the NSA would have to collect huge amounts of metadata in order to capture specific communications and to establish patterns of activity among terrorist groups. Analysts had to set baselines about what constituted “normal” versus “suspicious” behavior. To make any reasonable determination the agency needed thousands, potentially even hundreds of thousands or millions, of customers’ call records. Analysts needed a thirty-thousand-foot view of the battlefield before knowing whom to target, which phones to tap, and which e-mails to snatch. And they needed those metadata preferably as soon as they are created, since call-data records were not real-time accounts of who had called whom. The NSA needed a way to tap into the network at the source. (pp. 204, 205)
The lead editorial in the San Francisco Chronicle on Dec. 18 was once again on the NSA: “First a presidential task force and now an angry federal judge have cast serious doubt on a massive phone call monitoring program carried out in the name of national security” (emphasis added). “The setbacks should persuade a reluctant President Obama to scale back the intrusive dragnet.”
Judge Leon of the D.C. District Court “hammered the government on another score beyond privacy rights. Where is the proof that the NSA phone tracking has paid off in disrupted attacks or terrorist arrests? The Obama team failed to show any evidence, though NSA leaders have often claimed the phone monitoring is vital.” It remains to be seen how vital it is.