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The Political Animal

Edward Snowden and the Question of Authority (a Surveillance of Terms)

Edward Snowden received the Integrity Award from the Sam Adams Associates for Integrity in Intelligence this week, and WikiLeaks has posted several videos of the rarely-seen whistleblower during the event.

The Huffington Post

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As opinions about Edward Snowden have flown wildly back and forth, the vocabulary of public debate has suffered woefully. The sorry truth is that well beyond striving politicians, those who pretend to a journalist’s precision of detail or an analyst’s wise counsel in policy have no less the tendency than the politicians to throw words around like jalopies in a demolition derby. Last one still moving its lips wins.

Much of the debate over Snowden, supporting the leanings of whole ideologies, has resorted to the use of four terms: leaker, whistle blower, spy, and civil disobedience. There are variant terms, such as “traitor” and “illegal,” but those four words have formed the parameters of the debate. Find your point on the grid among the coordinates of those four terms, and your position on Edward Snowden is significantly revealed. Yet few people who have publically discussed Snowden’s act and sometimes used those words have troubled themselves to clarify for themselves and others what precisely they mean by the words and how the words relate to each other. Common slapdash efforts have tended to comfort the comfortably certain, and afflict those afflicted  with uncertainty, with the continuing sense that the matter is all one great subjective political confusion: you know, one person’s spy is another person’s whistleblower.

Shall we cry, “Not”? Let’s.

To begin, three of the terms are conceptually separable from the fourth, all of them not, truly, equal end points on a grid. Civil disobedience stands apart. To leak, to whistle blow, to spy are all categorically related, each a distinguishable, individuated subclass of the more general notion of leaking. If we think of that general notion as one of porous escape from an area of containment, then we manage to separate, to start, the various political actions and moral charges that later attach to types of leaking. We might also think of the concrete barrier of containment that inhibits leakage in the physical world, whatever its material form, as akin to authority in the world of human interaction, especially, here, of government. They are the ideal institutions and the operating protocols of government that seek to erect the authority which, put into practice and respected, establish the containment – the concealment of sensitive information – to prevent leakage.

To leak, in its specific use, is part of the vocabulary of the political classes. As the term is commonly used, people leak information as practical political acts. Sometimes, oddly, contradictorily, a leak is authorized. That is to say that someone who exercises authority over the keeping and containment of the information is the one who creates the leak – releases the information – in order to achieve, by subterfuge, some political effect.  We presume, generally, when we allege such an act, that it is performed, though outside of protocols, with the knowledge or tacit acquiescence of the very highest level of authority, the President or other top executive figure. Thus we see created a fissure in the wall of authoritative containment. To break the rules is to defy authority. Yet we probably most believe that presidents and other leaders must in the exercise of leadership have freedom of movement at the boundaries of action, in order to contend with the contingencies of the real world. Many people clearly, to offer an extreme instance, have made their peace with presidential authorization of torture at the height of the post 9/11 era. What contends in these cases is the authority of law and protocol with the authority of executive leadership. We all have some sense of how the two should balance or one should predominate, but the more marginal we imagine the infraction to be, the less clarity we are likely to have in the matter, and the less many of us will care about attempting to establish a wavy line of demarcation.

When we believe that the leaker is high in the chain of authority, but is acting without some belief in Presidential support, even knowingly against what the President would wish, then we approach the distinguishing boundary of the whistle blower, but we are still not at it. Just as with “authorized” leaks, the person who operates at a high level of government, but who acts surreptitiously to release information in some way counter to the desires of presidential or other executive administration is committing a practical political act. Such a person is not challenging the legitimacy or moral authority of the nation or its government. Such a person is not necessarily challenging the legality of a government policy or act, as the whistle blower tends to do. The “non-authorized” leaker does, however, seek to influence policy by force of public reaction to the leaked information. One might say that the non-authorized leaker accepts the system as it is, in its ideal and real-world constructions, and willingly works within it. Depending on one’s beliefs about an array of matters, one might think the acts of both kinds of leakers to be either dishonorable or the wily operation of the shrewd political player.

As good an example of the “non-authorized” leaker as can be offered, if current suspicions are confirmed as correct, would be  retired Gen. James E. Cartwright of the Marines. Cartwright, reportedly while in service a favorite of President Obama, served before his retirement as the Vice Chairman of the Joint Chiefs of Staff, the second highest military position in the land. Yet according to multiple sources back in June, Cartwright is suspected of being the source of a leak to The New York Times revealing United States involvement in the Stuxnet cyber attack on Iran’s nuclear program computers. In response to these reports, according to National Public Radio, the general’s attorney released a statement using language strikingly relevant to matters in question in the Snowden debate.

General Jim Cartwright is an American hero who served his country with distinction for four decades. Any suggestion that he could have betrayed the country he loves is preposterous.

Whistle blowers will tend to be individuals of far lesser authority than Cartwright, often more functionary than authority, though in government and intelligence work the gradients between the two might seem infinitely to recede into the horizon. The young Edward Snowden may serve as a prime example of that perception. Whistle blowers, properly speaking, see an ideal or operational wrong and believe themselves to be functionally powerless to alter practice or policy in order to right the wrong. They do not have sufficient authority. They are not even, as Cartwright may have been, active participants in the shaping of policy or procedure who lost out in debate. They have no power to formulate, only to execute. As we imagine whistle blowers to be, they are people of conscience who, otherwise voiceless and powerless – thus whistle blower protection laws – blow the whistle on wrongdoing.

This is certainly how Edward Snowden and his supporters portray him. Even many people not fully supportive of Snowden perceive him as someone acting on conscience, however they might judge a range of his actions to be misguided. The individual acting on conscience may be motivated only by moral qualms, but just as likely, when it regards matters about which to blow the whistle, the moral compunction is attached to what is perceived to be illegality. That seems at best a muddy area in Snowden’s revelations. Certainly, many think the programs and procedures Snowden revealed, beginning with their secrecy, to run counter to a spirit of civil liberty and appropriate legal procedure. We find not secret FISA court orders, for instance, but undemocratic, secret interpretations of law. Few legal minds have argued that any of the NSA programs – authorized by legislation and clarified in scope by those court findings – are themselves illegal.

The question of illegality and the matter of how one blows the whistle – whether in report to superiors, along special protective avenues, or by going public directly through the media and thus bypassing protocols – all complicate evaluation of the whistle blower’s act. For many, Snowden and his outright supporters argue very credibly that the last course was the only one effectively open to him, as Daniel Ellsberg similarly felt about the Pentagon Papers.

There is, however, an additional consideration involved in attempting to classify, in order to properly regard, however complexly, Edward Snowden’s actions. Back on June 25, the South China Morning Post reported,

For the first time, Snowden has admitted he sought a position at Booz Allen Hamilton so he could collect proof about the US National Security Agency’s secret surveillance programmes ahead of planned leaks to the media.

“My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked,” he told the Post on June 12. “That is why I accepted that position about three months ago.”

During a live global online chat last week, Snowden also stated he took pay cuts “in the course of pursuing specific work”. He said: “Booz was not the most I’ve been paid.”

….

Asked if he specifically went to Booz Allen Hamilton to gather evidence of surveillance, he replied: “Correct on Booz.”

Ellsberg, perhaps the most famous whistle blower in U.S. history and a supporter of Snowden, nonetheless serves as a marked contrast to Snowden in several ways. Ellsberg, working for the Rand Corporation after service at the Department of Defense, contributed to the study of the Vietnam War commissioned by Secretary of Defense Robert McNamara that later became known as the Pentagon Papers. Ellsberg was one of the few people who had access to the entire study. He was, on these terms, the classic whistle blower: a government or government-affiliated employee who becomes disillusioned by the mission in which he is a participant, but on which he is powerless to effect change. However, Ellsberg did not seek a job at the Rand Corporation with the specific purpose to obtain information to which he otherwise lacked access and then to leak it.

While Edward Snowden and supporters consider him a whistle blower, and he does in some respects fit the description, in others he does not. The United States government has, in fact, charged Snowden with espionage. Is that charge simply institutional vindictiveness, bureaucratic anger at the unauthorized disclosure of information, as Snowden and his Wikileaks and other supporters charge? There are the intricacies of law on which most people are not expert to comment, but there are definitions in the common language. Merriam Webster tells us that a spy is “one that spies; one who keeps secret watch on a person or thing to obtain information.” Wiktionary identifies espionage as the “act or process of learning secret information through clandestine means.” Whereas Daniel Ellsberg leaked information to which he had access as part of work in which he was already authorized to be engaged, Edward Snowden by his own admission sought employment with access to classified information purposefully in order to seek out that information, remove it, and publically disclose it without authorization.

More detailed encyclopedic and intelligence-service definitions of espionage accord with the fuller conception most people have of espionage commonly applying to corporate and nation-against-nation spying. There is no evidence of any such intent on Snowden’s part, nor is there any reason to suspect him of seeking personal gain. We tend also to think of spies as working for enemies, but that is not required. Friendly nations spy on one another all the time. Jonathan Pollard spied on the U.S. for Israel. The U.S., it just so happens Snowden has revealed, spies on its own European allies. Though Snowden seems to conceive of himself as a patriot, as General Cartwright’s lawyer reasonably casts him, and there is no reason to doubt the sincerity of that belief, he has, first, cast his lot with parties who present themselves quite antagonistically toward the U.S., and he has begun to make such comments himself.

As political contestants become more heatedly embroiled in deepening convolutions of motivation and act, and charge and counter charge about the motivations and acts of others, all may find idealized cause to elevate their own higher love of country or freedom above the cravenness of their adversary: nearly everyone is a patriot in his own mind, when he hasn’t spied for money or out of personal grievance. Sometimes, for some ballast against the upending waves of political agonism, we need to return to some existing standards: definitions, precedents, and law. Certainly, by some clear, existent standards, what Edward Snowden set out to engage in at Booz Allen, and against the U.S. government, regardless of his motivation, was espionage.

We have political leakers, we have whistle blowers of conscience, we have spies. Edward Snowden is not the first. There are arguments to be made for the second and third. Let us consider Snowden further on his own terms, as the whistle blower motivated by conscience.

The civil disobedient – what some have carelessly called Snowden – also acts from conscience, though it need not be against illegality. In some sense, civil disobedience based on conscience alone is even more admirable than exposing illegality, which is a great and perhaps even risky enough act itself. In a free and democratic society, we hope – but justice is always an uncertain destination – exposing illegality will receive its ideal and proper reward.  It is on the books. That a personal sense of justice will come commonly to prevail is a still riskier bet to make. When Martin Luther King, Jr. went to Birmingham, Alabama in 1963, it was not to oppose illegality. The injustice he went to fight was legal. He broke the law to oppose it. There are, he wrote,

two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

These high sounding words might be in practice quite capricious and self-serving, but for one highly salient fact – King wrote them from jail. They are found, after all, in his “Letter from Birmingham Jail.”

King was not the first to espouse this standard. Wrote Henry David Thoreau in Civil Disobedience,

Under a government which imprisons unjustly, the true place for a just man is also a prison. The proper place today, the only place which Massachusetts has provided for her freer and less despondent spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. It is there that the fugitive slave, and the Mexican prisoner on parole, and the Indian come to plead the wrongs of his race should find them; on that separate but more free and honorable ground, where the State places those who are not with her, but against her.

For all Thoreau’s sense of the tyranny of the state qua state, neither he, then, nor we now need be foolish enough to confuse that tyranny with the greater human tyranny effected by the state. We know the systems and societies where such noble figures as Thoreau imagines, upholding their personal measure of justness in prison, may sink into dark holes of history never to emerge from those prisons free or living again. It is, then, easier to justify flight from the system whose wrong one exposes, whose law one breaks, if one can cast it in such dire terms as those. If one can acknowledge no determinative difference between the United States and North Korea or Russia or Iran, one can tell oneself and the world that no obligation is owed to the country and system of laws one challenges.

Like King in the American South, Mohandas Gandhi faced levels of discriminatory oppression from the British Rule of India far greater than the generic tyranny Thoreau faced in the United States. King respected the American system as Gandhi did not the British in India, yet Gandhi, through the concept of nonviolent civil disobedience he fashioned as Satyagraha, nonetheless submitted to British law. In 1922, Gandhi was tried for “bringing or attempting to excite disaffection towards His Majesty’s Government established by law in British India.”  He concluded his statement to the court with these words:

I am here, therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me for what in law is deliberate crime, and what appears to me to be the highest duty of a citizen. The only course open to you, the Judge and the assessors, is either to resign your posts and thus dissociate yourselves from evil, if you feel that the law you are called upon to administer is an evil, and that in reality I am innocent, or to inflict on me the severest penalty, if you believe that the system and the law you are assisting to administer are good for the people of this country, and that my activity is, therefore, injurious to the common weal.

All three men, Thoreau, Gandhi, and King, staked their principles of civil disobedience in the ground marked off before them by Socrates. Like Edward Snowden, Socrates believed that truths were being withheld from the citizenry, in his case, of Athens. Socrates had endeavored throughout his life to shine the light of reality on the minds of all those with whom he conversed. Late in his life, it became the claim of the rulers of Athens that its citizens, like those of the United States, needed to be protected, in this case from Socrates himself, who was charged with “ refusing to acknowledge the gods recognized by the State and of introducing new and different gods” and with “corrupting the youth” of Athens.

Socrates did not flee his trial, but stood it. It was after he was unjustly convicted – and not before, in what might be deemed by some a convenient anticipation of injustice – that Socrates was urged by his friend Crito to flee. All necessary arrangements had been made by Crito for that flight to safety. In Plato’s dialogue called Crito, Socrates offers the many reasons why he believed it would be wrong for him to escape. He questions what commitment to justice he might rightly claim, and to a regulated system of laws aimed at establishing justice, were he to flee a judgment that might go against him. Argues Socrates, in the voice of the Law, personified as all whom it represents,

“Tell us, Socrates,” they say; “what are you

about? Are you going by an act of yours to overturn us — the

50b      laws and the whole State, as far as in you lies? Do you

imagine that a State can subsist and not be overthrown, in

which the decisions of law have no power, but are set aside

and overthrown by individuals?” What will be our answer,

Crito, to these and the like words? Anyone, and especially

a clever rhetorician, will have a good deal to urge about the

evil of setting aside the law which requires a sentence to be

carried out; and we might reply, “Yes; but the State has

50c      injured us and given an unjust sentence.” Suppose I say that?

Socrates defied what he thought unjust law, law that required he acknowledge the existence of gods in which he did not believe. But he accepted his punishment for that defiance and declared his respect for law itself. A foundation for that respect was laid in the argument Socrates made of implied consent.

                 But he who has experience of the manner in which we

order justice and administer the State, and still remains, has

entered into an implied contract that he will do as we

command him. And he who disobeys us is, as we maintain,

thrice wrong: first, because in disobeying us he is disobeying

his parents; secondly, because we are the authors of his

education; thirdly, because he has made an agreement with us

that he will duly obey our commands; and he neither obeys

them nor convinces us that our commands are wrong; and we

do not rudely impose them, but give him the alternative of

obeying or convincing us; that is what we offer, and he does

52a      neither.

Though he appears, in his defense of Snowden, no longer to recognize this standard today. Ellsberg did recognize if for himself.

I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.

Of course, one may take a radically subversive or revolutionary stance, by which state institutions and the system of laws are challenged in their very legitimacy. Some of those who have become associated with Snowden – Julian Assange and Wikileaks, for instance – frequently make characterizations of the United States in this spirit, though they have yet to outright declare themselves subversive or revolutionary enemies of the state. Edward Snowden has made no such declaration, and if he did he would then reasonably lose any basis for complaint of his treatment by an avowed enemy. If, rather, he claims to be acting from conscience, morally committed to a higher enactment of the idea of America, then he has an existing standard of civil disobedience against which to measure himself and be measured by others. That standard is

Refusal to obey government demands or commands and nonresistance to consequent arrest and punishment. … Civil disobedience is a symbolic or ritualistic violation of the law, rather than a rejection of the system as a whole. The civil disobedient, finding legitimate avenues of change blocked or nonexistent, sees himself as obligated by a higher, extralegal principle to break some specific law. By submitting to punishment, the civil disobedient hopes to set a moral example that will provoke the majority or the government into effecting meaningful political, social, or economic change.

If Edward Snowden and those who encourage him in his present course think themselves able to marshal not just the impassioned recalcitrance of critics, but compelling arguments fit to contend with the ancient and continuing legacy before them, and the intellectual authority of that legacy, they should make them. For it is not only what they oppose for which they will be remembered, but also what they promote, and whatever clear, coherent, and compelling case they make, or do not make, for how to act rightly in the face of wrong.

AJA

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The Political Animal

The Case against James Clapper: the Metadata Deception and the Smear of Ron Wyden

tech3At least one prominent member of the national security establishment, and a prominent legal blog, have come out in defense of Director of National Intelligence (DNI) James Clapper by attempting to smear Senator Ron Wyden.

This past March 12 at an open hearing of the Senate Select Committee on Intelligence, Wyden, Democrat from Oregon, asked Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

Clapper famously answered, “No sir…not wittingly.”

We now know, as Wyden knew then, that this was a lie. There have subsequently been calls for Clapper’s resignation.

After the Edward Snowden revelations, which included those of the telephony metadata collection program – which performs precisely the collection Wyden asked about and Clapper denied – Clapper’s most publicized attempt to address questions of his false testimony was with NBC’s Andrea Mitchell.

I thought, though in retrospect, I was asked [a] “when are you going to … stop beating your wife’ kind of question, which is … not answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful, manner by saying, ‘No.’”

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Director of National Intelligence James Clapper

In this brief explanation, Clapper managed to muddy the waters in three ways. First, Wyden’s question was not of the “when did you stop beating your wife” variety – what is termed a loaded question – a direct answer to which implicates one in an answer to a logically implied prior question that one may think not applicable in the first place. A loaded question is not the same as a question for which there is a complicated answer, for which there is neither “a simple yes or no.” Yet that description is not accurate either, because there is a simple answer to Wyden’s question. The answer is “yes.” It is simply that Clapper did not wish to give that answer, so he responded in what he described to Mitchell as the “least untruthful manner.” Yet this is not so either, since, with the fully correct answer being “yes,” an answer of “no” is actually the most untruthful answer possible.

Since Snowden’s disclosures first began to appear in the Washington Post and the Guardian, reactions have not been predictable according to political leaning, but that political positions have influenced  reactions is undeniable. Now, this past week, we have seen the first aggressive attempt to impugn not Clapper’s, but Ron Wyden’s integrity and put him in the wrong. The attempt appears to come from the national security establishment.

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Joel Brenner

Joel F. Brenner, former Senior Counsel and Inspector General at the National Security Agency and “head of U.S. counterintelligence under the Director of National Intelligence,” produced for the Lawfare blog a piece titled “Dishonor in High Places: Sandbagging the Intelligence Chief—Again.”

The dishonor, you should know, according to Brenner, is Wyden’s.

Wyden is a member of the Senate Select Committee on Intelligence and had long known about the court-approved metadata program that has since become public knowledge. He knew Clapper’s answer was incorrect. But Wyden, like Clapper, was also under an oath not to divulge the story. In posing this question, he knew Clapper would have to breach his oath of secrecy, lie, prevaricate, or decline to reply except in executive session—a tactic that would implicitly have divulged the secret….

This was a vicious tactic, regardless of what you think of the later Snowden disclosures. Wyden learned nothing, the public learned nothing, and an honest and unusually forthright public servant has had his credibility trashed.

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Oregon Senator Ron Wyden

According to Brenner, Wyden might rather have introduced legislation to bar metadata collection, even though he would have been hamstrung in describing in specific terms the kinds of activity against which he sought to legislate, and thus from informatively lobbying his fellow senators and the support of the general public, and even though, Brenner admits, the bill “would have died quickly” in the senate. Alternatively, argues Brenner – pulling a rabbit out of the hat of debate about Edward Snowden’s actions – Wyden could have engaged in civil disobedience, by breaking his oath of confidentiality and revealing the metadata program to the American people, and in the tradition of Socrates, Thoreau, Gandhi, and King, accepting the legal punishment.

But Wyden did neither of these things. He lacked the courage of his conviction, and instead of running any risk himself, he transferred it to the director of national intelligence, putting Clapper in the impossible position of answering a question that he could not address truthfully and fully without breaking his oath not to divulge classified information….  It was a low dishonorable act, and nothing good will come of it.

Brenner’s striking temerity in turning the tables on Wyden should affront all democrats. It perversely mischaracterizes the events and players: who exactly it was who behaved dishonorably and who with respect for the rights and proper role of the American people.

Whatever the virtues of Clapper’s overall service to the country, in this instance his lie perfectly represented the vice of the metadata program – as did another kind of vice, that of Wyden’s question to Clapper, pressing Clapper between two contradictory obligations. The history of revelations about the metadata program, as well as Clapper’s further explanations of his lie to conceal it, fully contrarily reveal just how perfectly his exchange with Wyden serves to represent the program’s undemocratic nature.

In the first days after the Post and Guardian stories broke, amid much political positioning, there were those who pointed out, for varying reasons, that news about the telephony metadata program was not, in fact, new.  Leslie Cauley first broke the story for USA Today in May 2006 during the Bush administration. There was very vocal reaction, with Vermont Senator Leahy among others protesting the sweep of the program and then Pennsylvania Senator Arlen Specter calling for the phone companies to appear before congress. The Bush administration defended the program, stating in what should seem familiar terms from today: “The intelligence activities undertaken by the United States government are lawful, necessary and required to protect Americans from terrorist attacks.”

Quickly enough, some phone companies demanded a retraction of USA Today’s report.

As the paper reported, “In a letter to the newspaper’s publisher, Craig Moon, [BellSouth] noted that the story said BellSouth is “working under contract with the NSA” to provide “phone call records of tens of millions of Americans” that have been incorporated into the database.

“’No such proof was offered by your newspaper because no such contracts exist,” stated the letter, portions of which were read by spokesman Jeff Battcher. “You have offered no proof that BellSouth provided massive calling data to the NSA as part of a warrantless program because it simply did not happen.’”

We know from corporate denials of the initial stories this time around that inaccuracies of detail, which are not unimportant, nonetheless provide opportunity for legal parsing of terms that produce a quibbling evasion of the point. Were BellSouth and other companies then able to cast doubt because it was inaccurate to claim they were “working under contract” with the NSA, or that they did not do so under “warrantless” circumstances?

By July, USA Today had to retract some of its story, not because it had been disproven, but because of inability to substantiate some elements in it. The Washington Post reported,

Yesterday, in a lengthy article and accompanying “note to our readers,” the nation’s largest-circulation newspaper said it could not confirm that BellSouth or Verizon contracted with the NSA, which is charged with intercepting and analyzing foreign communications to look for possible threats to U.S. national security.

The correction illustrates the difficulty of reporting sensitive and often classified government actions, as anonymous sources sometimes backtrack, pursue their own agendas by leaking selective information or say more than they know. News organizations attempt to assemble authoritative stories from multiple sources and agencies, creating plenty of room for potential error.

What USA Today offered, however, was far from a retraction.

USA Today stood by much of its initial report, saying it had followed up with lawmakers and intelligence and telecom sources. Yesterday’s article reported: ‘Members of the House and Senate intelligence committees confirm that the National Security Agency has compiled a massive database of phone call records.’

By the following summer, a lawsuit filed by the ACLU and others was dismissed on technical grounds.

Fast forward to today. While varied representatives of the Obama administration have argued that the metadata and PRISM stories have endangered the nation’s critical terror surveillance programs and national security, others point to the preceding history of reporting and reasonably claim this is not news. Osama bin Laden was not disconnected from the internet and cellular phone networks because he and other terrorist operatives thought it was safe to call the United States or post on Facebook and Google +.

The crucial point to be made about the mere existence and the scope of a telephony metadata program is that rather than constituting any meaningful secret kept from terrorist enemies, it was a secret being kept from the American people.

Ron Wyden did not ask James Clapper a question to which a simple affirmative answer would reveal the least operational detail – only confirm the continued existence under the Obama administration of a program already reported to exist seven years earlier under the Bush administration. What Clapper has done in response is change the explanation for his lie several different times.

Before the Mitchell interview, Clapper tried a different tack:

At first he said the exchange with Wyden was about email content, as opposed to telephone metadata. ‘What I said,’ he told National Journal on June 6, ‘was the NSA does not voyeuristically pore through U.S. citizens’ emails.’ Since Wyden asked about ‘any type of data at all,’ and since the word email was not even mentioned during the hearing, that description was clearly false.

We know how this account changed for Mitchell. Also during the Mitchell interview, Clapper tried a new, NSA-branded and caviling definition of the word “collect,” as the Bush administration chose to redefine “torture” and replace it with enhanced interrogation. Said Clapper,

To me, collection of a U.S. person’s data would mean taking the books off the shelf, opening it up and reading it.

To “collect” means now to read. That book “collection” you have on those shelves? If you haven’t read them, it’s not a collection anymore.

As of Tuesday, July 2, there is yet another account by Clapper of his answer, a letter to Diane Feinstein, Chair of the Senate Select Committee on Intelligence, stamped June 21, 2013 and thus unaccountably delayed eleven days before being made public. In the letter, Clapper states that when faced with the “challenge” of the question, “I simply didn’t think of Section 215 of the Patriot Act.”

Consider that, as Brenner acknowledges, Clapper was informed ahead of time of the questions he would be asked at the March hearing. No questions took him by surprise, and he had the opportunity to consider his answers beforehand. Aware of the inaccuracy of Clapper’s answer, Wyden’s staff contacted Clapper’s office and offered the DNI the opportunity to revise any of his responses. He did not. Only when public revelations pointed clearly to the falseness of his reply to Wyden did Clapper attempt to revise and account publicly for the original answer.

We reach, now, amid these continuing discordant accounts, and revisions of accounts, the essential response to Brenner and his smear against Wyden. We refocus the history and culpability for Clapper’s actions on him.

Brenner has drawn a scenario in which Clapper was squeezed between competing obligations, to secrecy as a security official and to testify truthfully before Congress. Brenner himself excuses Clapper as having chosen – because of the “vicious” squeeze play of Wyden – the greater commitment to the oath of secrecy. Clapper, on the other hand, has never himself made that argument in his defense. He has offered various reasons why his answer to Wyden was “erroneous,” but never that it was a conscious lie told because he found himself in what he thought an impossible situation requiring one bad choice or another.

Yet Clapper has now further explained in his letter to Feinstein, “While my staff acknowledged the error to Senator Wyden’s staff soon after the hearing, I can now openly correct it because the existence of the metadata program has been declassified.”

We see what Clapper acknowledges here. He can “now openly correct” the record because the metadata program has been declassified. Which means he would not if it were not. Which means if it were not, he would still – even if he did not first make a mistake, redefine a word, or forget – choose to lie, as he did to Wyden in March.

Until the acknowledgement at the close of the letter to Feinstein, Clapper’s explanations for himself are completely at variance with Brenner’s defense of him by attack on Wyden. At the close of the letter Brenner acknowledges the vice of conflicting obligations and the choice he has made every day until the day of the letter to Feinstein. He has not simply lied to Congress once; he has lied to the American public daily.

Brenner’s smear of Wyden is to charge him with moral dereliction for not having revealed the existence of the metadata program himself, as an act of civil disobedience from high places, with acceptance of the legal penalty to follow. This sword-falling should have been performed on behalf of the figure who was overseeing a secret program, conducted under secret interpretations of law, whose judgment it was that keeping secrets from the American people was a higher moral charge than responding, in whatever way, truthfully to their constitutional representatives.

This, then, is how the Clapper lie represents the very nature of the metadata program. Secret in its existence, secret even in its legal justification, and with fair reason for its originators and operatives to believe large swaths of the American public would object to it, the secrecy of the program was raised in the mind of he who led it to a stature in commitment beyond that of even free, open, and democratic rule. For Wyden to place Clapper in the position he did was to focus attention on the very contradiction and undemocratic nature at the heart of any kind of government metadata program of surveillance against the American people.

A question that remains from Brenner’s effort is whether it portends a wider, more concerted effort to defame the man who made the right choice.

AJA

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The Political Animal

Three Proposals for Altering the State of Surveillance

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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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