Three Proposals for Altering the State of Surveillance

by A. Jay Adler on July 1, 2013
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These several weeks after Edward Snowden’s arguable NSA “revelations” have offered several other kinds of revelation, including one additional that is also arguably not new – about how very badly reflexive political posturing contributes to the proper understanding of national issues or effective public debate.

Let it be noted as further revealed for a broader audience that Glenn Greenwald is a journalistic charlatan of meager intellectual capacity, but formidable blunt and inflammatory polemical legerdemain. He will have his self-promotional and detrimental day on the public stage and fade into the obscurity of a minor historical entry under litigious demagoguery.

Let it be noted, too, that Edward Snowden further revealed the dangers of immature autodidactism married to the self-importance of untutored conscience. While Snowden might have honored himself, however disputable his act, by facing the consequences of his act – which is the meaning of responsibility – he chose, instead, the stance of superior and petulant evasion of responsibility that is the hallmark of the anonymous, hactivist culture. Confusing technical facility for gravity and wisdom, criticism for critical thinking, and disagreement and mere disobedience for conscientious civil disobedience, this culture puffs itself up on admirable and challenging questions for which it has not the intellectual discipline to derive coherent answers. It acts and postures.

“To take a passport from a young man in a difficult situation like that is a disgrace,” cried petulant-in-chief Julian Assange of the United States government’s cancelation of Snowden’s passport.

No, of course, any governing authority should allow a person charged with breaking its laws to retain legal paperwork for further travel and flight from apprehension. It should provide the plane, pilot and taxiing authority at the destination of escape too. The likes of Assange could not stand questioning of their preposterous argumentative foundations lengthy enough to serve as foil for a Platonic pamphlet.

But Greenwald and Snowden are the fireworks of the volcano, bright and blazing, hot and flowing. They are not the engine in the bowels of earth that will still be threatening long after the latest display. Unfortunately, it is not only defense establishment conservatives who have circled the proverbial wagons around the more brightly publicized surveillance regime that is the one good product of Snowden’s act. It is many progressives, too, properly defensive of common sense anti-terror policies and programs, but too automatically led by the character of those who made the revelations to acknowledge the value of the revelations.

Too ready to cavil that there are no true revelations and that there have been no abuses yet, they blind themselves to the history and potential of government abuse and to the inherent dangers of some already existing structures. Now is the time to act, not after.

The most foolish and disingenuous criticism of Snowden’s act of exposure, from both government and journalistic sources, is that there were institutionalized whistle blowing routes he could have taken. Here are some truths about anyone’s chances on those routes.

Behind closed doors, well out of earshot of privacy advocates, most other senators, and his own constituents, [Oregon Sen. Ron] Wyden sought to amend the bill. He wanted it to direct the Justice Department’s inspector general to determine approximately how many Americans have had the contents of their communications gathered under section 702 of FISA that gave rise to PRISM, and to require government officials to obtain court orders before querying 702 collections with the names of American citizens — in other words, to close a backdoor surveillance loophole.

Both amendments failed, over his pleas, and the committee cleared the broader bill by a wide vote margin.

But what happened next is what really irks civil libertarians and others who want the process of legislating intelligence matters to become more transparent. The chair and vice chair of the committee touted the outcome of the committee vote, while Wyden was prohibited by committee rules from publicly registering and explaining his opposition.

“The bill we approved today extends critical counterterrorism and intelligence gathering tools for the Intelligence Community,” Sens. Dianne Feinstein (D-CA) and Saxby Chambliss (R-GA), the committee’s chair and vice chair announced in a statement at the time. “The committee has determined that these provisions provide intelligence to identify terrorist operatives and to understand the intentions of our adversaries around the world. These authorities cannot be allowed to expire and we urge quick action by the Senate and House to enact this extension.”

While they boasted of the committee’s achievement, Wyden was effectively struck silent under what amounted to a partial gag order. For the next two weeks, while SSCI prepared an official report which would include his objections, the committee rules prevented him from saying almost anything about what had happened. [Emphasis added]

We know from Wyden and from Colorado Senator Mark Udall that even among the highest legislative representatives in the land were prohibited from sounding any clarion public alarm.

Yet shackled by strict rules on the discussion of classified information, Mr. Wyden and Mr. Udall, members of the Senate Select Committee on Intelligence could not — and still cannot — offer much more than an intimation about their concerns. They had to be content to sit in a special sealed room, soak in information that they said appalled and frightened them, then offer veiled messages that were largely ignored.

But after the disclosure of an April court order directing a subsidiary of the phone giant Verizon to turn over to the National Security Agency logs of virtually every business phone communication “between the United States and abroad” or “wholly within the United States, including local telephone calls,” Mr. Wyden acknowledged that the surveillance effort outlined “is one that I have been concerned about for years.”

Still for Senators Wyden and Udall, their “I told you so” moment was as frustrating on Thursday as all of the lonely floor speeches and legislative proposals that have gone nowhere, since they still cannot publicly explain the workings of the program that has set them to worrying.

Restrictions on dissenting voices – who because of the secrecy imposed cannot engage in the normal lobbying among their fellows to assemble votes – prevent not just critical effective oversight, but further regulating legislation, too.

Over the past two years, Wyden has attempted to impose limits on the sections of the PATRIOT Act and the Foreign Intelligence Surveillance Amendments Act that the administration cites as the sources of authority for the NSA programs Snowden revealed nearly three weeks ago.

“He tried to amend the relevant standard in section 215 of the PATRIOT Act — what the administration is arguing gives them legal authority to collect data on basically every American,” Hoelzer said. “But he was explicitly barred from explaining why it was too broad. He could speak subtly, he couldn’t raise examples, he couldn’t spark public debate.”

….

That means the ACLU couldn’t know, other senators couldn’t know, the press couldn’t know. Wyden’s ability to promote changes in law was effectively limited to marshaling his own powers of persuasion in closed committee sessions.

Among the clear and present dangers, then, of secret surveillance regimes is precisely their secrecy. Noah Feldman of Harvard Law has argued,

How, exactly, could the government order a Verizon division to provide records of all calls — that’s right, all — to or from the U.S. on an ongoing basis? The answer is secrecy — but not just in the way you think.

It’s not only that the highly classified request was made to and approved by a highly classified court. But the legal interpretation of the 2001 Patriot Act that the court appears to have used was itself classified. In other words, there was no way for the public to know what the courts believed the law to mean. And that reality runs counter to the most basic principles of democracy and the rule of law.

In a democracy, the laws are and must be public. Our representatives pass them and our executive branch puts them into effect publicly — and, ordinarily, the courts supervise both those processes in public as well….

….

[L]egal 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.

Wyden tried to confront this problem, too, to no avail.

Wyden attempted to amend the legislation to require the Obama administration to provide a declassified explanation of its legal interpretation of section 215 of the PATRIOT Act, which it uses to authorize bulk collection of telephonic metadata and to force a DOJ inspector general audit of the collection of information on Americans under section 702. Both amendments failed. Wyden opposed the committee report, but was constrained from explaining why.

The profound and essential danger of surveillance regimes is constituent to their virtue: secrecy. Even their protective legislative oversight, as we see, is secret. The same danger is inherent in another level of scrutiny – judicial oversight and the total secrecy of the FISA court.

The public is getting a peek into the little-known workings of a powerful and mostly invisible government entity. And it is seeing a court whose secret rulings have in effect created a body of law separate from the one on the books — one that gives U.S. spy agencies the authority to collect bulk information about Americans’ medical care, firearms purchases, credit card usage and other interactions with business and commerce, according to Sen. Ron Wyden (D-Ore.).

“The government can get virtually anything,” said Wyden, who as a member of the Senate Intelligence Committee is allowed to read many of the court’s classified rulings. “Health, guns, credit cards — my reading is not what has been done, it’s what can be done.”

….

Typical federal courts are presided over by judges nominated by presidents and confirmed by the Senate. Cases are argued by two opposing sides; judges issue orders and opinions that can be read, analyzed and appealed; and appellate opinions set precedents that shape American jurisprudence.

The surveillance court is a different world of secret case law, non-adversarial proceedings, and rulings written by individual judges who rarely meet as a panel.

Judges generally confer only with government lawyers, and out of public view. Yet the judges have the power to interpret the Constitution and set long-lasting and far-reaching precedent on matters involving Americans’ rights to privacy and due process under the Fourth Amendment. And this fast-growing body of law is almost entirely out of view of legal scholars and the public. Most Americans do not have access to the judiciary’s full interpretation of the Constitution on matters of surveillance, search and seizure when it comes to snooping for terrorist plots — and are limited in their ability to challenge it.

In 2012, the FISA court approved all of the 1856 electronic search and surveillance requests brought before it.

Responses from Director of National Intelligence James Clapper and NSA Director Keith Alexander are that the government “does not” and “cannot” perform various objectionable acts of domestic surveillance and that the FISA court is not a “rubber stamp.” Cannot, of course, is a disingenuous verb that implies restriction in material actuality that is only restriction in procedure, and the effective details and confirmation of the latter must be accepted on faith alone. To rubber stamp is to “approve automatically.” The FISA court serving as a virtual black box, the inner workings of which are currently invisible and literally unknowable to us, we must infer the interior mechanism from the input and the box’s output. Would eighteen hundred and fifty seven consecutive approvals convince of an automatic process at work inside the box?

The suggestion that the public should accept merely verbal assurances of the integrity of a completely invisible process from those who govern the process is an insult to the public’s intelligence and the nation’s democratic character.

The concern with the FISA court is that whatever the integrity of the individuals, the common cause of the secret community becomes dispositive in perception and judgment. We see the same with legislative oversight. Faced with an unanticipated question that directly addressed secret activity, DNI Clapper lied.

Back at an open congressional hearing on March 12, Sen. Ron Wyden (D-Ore.) asked Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper replied, “No sir … not wittingly.” As we all now know, he was lying.

Confronted with the evidence of this lie, CA Sen. Feinstein, a Democrat, who serves on the Senate committee that is supposed to provide legislatively independent oversight of executive surveillance programs, performs the role, no different from her GOP colleague, House committee chair Mike Rogers of Michigan, of defending the DNI.

“Well, I think this is very hard. There is no more direct or honest person than Jim Clapper, and I think both Mike and I know that. You can misunderstand the question,” claimed Sen. Dianne Feinstein (D-Calif.). “This is one of the dilemmas of talking about it. He could have thought the question had content or something, but it is true that this is a wide collection of phone records, as Mike said. No name, no content. But the number to number, the length of time, the kind of thing that’s on the telephone bill, and we have to deal with that.”

Uh, huh. This is the common cause of secrecy. Feinstein, playing her proper role as representative of a national citizen constituency, not defender of an appointed official in an opposing branch of government that she is tasked to check and balance, should acknowledge the lie, condemn it, and vow accountability for it. Instead, she strains all credibility not to.

Feel reassured?

Clapper’s own self-defense was to redefine the word “collect,” as the Bush administration sought to redefine the meaning of “torture.” Far too many people who would not tolerate the latter have turned a deaf ear to the former.

Clapper’s redefinition justifies the culminating danger of the secret law findings and the rubber stamp oversight: the thus far unperused “shelves,” as Clapper fashioned them, of metadata on American citizens. The law findings and the stamp are the steps too far: the shelves are the forbidden destination. The government of a democratic nation should never be permitted to maintain them. Here are two hypothetical but analogous non-technical or non-telephonic surveillance programs that may highlight the monstrously invasive nature of the current and actual telephonic metadata collection program.

With or without a warrant, government or law enforcement representatives enter your home and collect, that is, gather up and take away items from your life and store it. They do not, they claim, look at it. Would you not consider the government to have pried into your life and collected information on you? The government might not then view and process the information, but it has, of course, collected it by every normal meaning of the word.

….

Via multiple legal means, including the basic security camera that is beginning to record us everywhere no less than NSA intercepts, government agencies record the activity to and from, in and out of, every physical address in the United States, both of physical mail and of people. No attached record is maintained of who lives or works at these addresses, but for untold years, the interconnecting movements between these addresses are simply recorded.

The records go on a “shelf.”

Amid all of the distractions of this story, these dangers highlighted are the good of what has happened. Here are three clear proposals, in general, to diminish the danger.

  1. While there must, of course, be secret programs, acts, and surveillance as part of national defense, including secret courts warrants, there should be no secret laws or secret interpretations of law that function effectively as new law. There must be an absolute prohibition against them.
  2. While the FISA court must work and act in secret, processes must be developed for non-governmental oversight of its own activities, to counter the tendencies toward common cause and the loss of perspective on whose interests the court serves. The Privacy and Civil Liberties Oversight Board should be developed to provide not merely a reporting and recommending function but regular extra-governmental reviews of FISA findings and warrants, tasked especially to function in protection of civil liberties.
  3. Government metadata shelving of telecommunications and other citizen communications and physical activity must be expressly prohibited by law.

If we institute these checks on government surveillance and Edward Snowden could take legitimate pride in a public service rendered as he completes his prison sentence. If we fail to, one day more of us than we will like will one day say, like Job,

My ears had heard of you but now my eyes have seen you.

AJA

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