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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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The State of Surveillance

God knows your calling patterns. God knows your friends on Facebook, your pages liked, your rants and your dissenting comments. More – and better than the NSA or FBI – God knows what you think.

Or, if there is no personal God,  if that term is just a word made of letters – G-O-D – then what we refer to by the word but that does not exist does not know all these things about us.

The fact is, though, that we do not know which of these states prevails. Are we divinely surveilled by an all-knowing being, all our sins and virtues, our decencies and transgressions known, or do we retain the secrecy of our private, individual, and fallible selves? As long as we do not know, we can pretend what we wish, believe what pleases us, until the day may come, if it ever does, that we have cause, like Job, to say,

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

This blind living in the state of surveillance, the surveillance state, provides the story of ultimate import arising from the NSA PRISM and data mining revelations. There are other, related stories deserving of attention, but all of them are iterations of what will further be repeated in our human future whatever the outcome this time around: acts of conscience or betrayal, bad journalism, demagoguery. For too many public voices, however, these subsidiary if genuine subplots have become a distraction from the greater story. They have allowed their perspectives on terrorism or counter-terrorism, on the leaker and the reporters, and on the ideological tendencies these all represent to skew their perception of the significance of technological surveillance in human development.

For some, the prime role of the Guardian’s Glenn Greenwald in reporting the story and cooperating with leaker Edward Snowden has determined their view. If Greenwald helped break the story and if any elements of his work and conduct are questionable, then the story itself is first suspect, then readily dismissible. If the story arises from Greenwald’s anti-American animus and programmatic terrorist apologia, then a story, calling into question the sweep and nature of the U.S. counter-terrorism surveillance is fatally tainted.

Greenwald justly produces a level of antagonism among his foes equal to the moral shoddiness and intellectual dishonesty of his work. But the import of the story is independent of his motivation and any mistakes he may have made in reporting it. Greenwald remains an ongoing story in his own right, but the animus toward him should not distract us from greater concerns.

Then there is Edward Snowden and however much the surveillance story can be tainted by tainting him. The Greenwald, Wikileaks, and hactivist elements and sympathizers have crowed about how defenders of secrecy would try to destroy the messenger, for displeasure with the message and the messenger’s allies, and they were right. The effort was immediate and has been relentless.

Snowden did not help himself, certainly. Whatever convenient educational and social deficiencies he offered for the better educated and more established to sneer at and belittle, Snowden might have stood tall and dignified above all his critics had he done only one thing – had he revealed himself at a press conference in Washington D.C. with a lawyer at his side and declared himself righteously prepared to make the case for his actions, in defense of the democratic and constitutional system before which in good faith he would now submit himself. We have, in our civilizational memory the example of Socrates as first precedent. In our national memory, so recently, we have Martin Luther King, Jr.: the enactment of conscientious civil disobedience. Yet it is striking how few of those styling themselves as Snowden’s more cultivated betters even raise this single determinant of a person’s conscience. But we live in a time of so much preening conscience and much less redeeming conscientiousness – conscience without conscientiousness – that so few think how they might place themselves preemptively above assaults on their character, whatever the attacks on their choices.

So Snowden did not behave as the exemplar from whom we should take too serious instruction, and now, over the weekend, there is news via Snowden from the South China Morning Post of NSA spying on Hong Kong and Mainland China and again via Snowden from the Guardian unremarkable but embarrassing news about spying on then Russian President Medvedev while he was in England. Snowden has now unequivocally passed from any claim to protector of American civil liberties to, like his Guardian sponsor, active opponent of the U.S.’s legitimate national security activities.

This now is Edward Snowden’s story, and it, too, will unfold wrapped in folds of sub-plots and counter narratives. But he also is not the greater interest we should have.

Another distracting vein has been the assertion by some that there is, in fact, nothing new in these so-called revelations. These ho-humers dig up a news account from here or there, from six or eight years ago, and say, see – we knew all along, or should have. If we had read the USA Patriot Act, we would have known what was going on.

Nothing to see here. Move along.

These are, at the same time, oddly defensive and retaliatory arguments. At once they seem aimed at defending the government from charges of extraordinary or improper activity – even as government officials are daily claiming that national security has been harmed by revelation of what was not previously known – just as they seem aimed at discrediting the reporting as hype. Neither suggests a clear and proper focus on the deeper issue. It little diminishes the implications of such pervasive surveillance to argue that the citizenry should have gotten it before.

What’s the matter with you? Weren’t you paying attention? Too late. No makeup exams.

Let those who wish argue about the meaning of a phrase in five-year-old news articles or on an NSA power point. Let them bicker about a technical protocol and whether it was previously known. Part of the danger of technology is the confusion of its expertise for deeper knowledge or even wisdom. There is a bigger picture here, and to that picture too we received a contribution this weekend, from the AP: Secret to Prism Program: Even Bigger Data Seizure. What is a major source of this bigger seizure? The undersea cables that carry so much internet and teledata and that the NSA requires no FISA permission to tap.

The government has said it minimizes all conversations and emails involving Americans. Exactly what that means remains classified. But former U.S. officials familiar with the process say it allows the government to keep the information as long as it is labeled as belonging to an American and stored in a special, restricted part of a computer.

That means Americans’ personal emails can live in government computers, but analysts can’t access, read or listen to them unless the emails become relevant to a national security investigation.

The government doesn’t automatically delete the data, officials said, because an email or phone conversation that seems innocuous today might be significant a year from now.

What’s unclear to the public is how long the government keeps the data. That is significant because the U.S. someday will have a new enemy. Two decades from now, the government could have a trove of American emails and phone records it can tap to investigative whatever Congress declares a threat to national security.

Director of National Intelligence James Clapper has compared this to a vast library of books and, redefining the word “collect,” has argued, in defense of the charge that he has already lied to congress when denying that the NSA “collects” data on Americans:

To me collection of U.S. persons’ data would mean taking the book off the shelf and opening it up and reading it.

Consider some parallels. 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, unless you are a government official engaged in the kind of dissimulation government officials engage in to cover up lies. More – most vitally – this information is now in the government’s possession. Officials may claim that there are rules they would have to follow to access that information – to take that book off the shelf – but two options of personal autonomy are now foreclosed to you: any real meaning to your grant of assent to view the information (they already have it) or, in extremis, even to resist the “collection” of it (they already have it).

Imagine this scenario, analogous to the telephony metadata collection. 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.”

Good people, otherwise smart people are assuring the public of the safeguards built into these processes, as if history, including recent and very contemporary history in the U.S. itself, is not replete with violations and abuse of the public trust in security matters. The Church Committee was only short of forty years ago. Just six years ago there were revelations of massive FBI abuse of the post 9/11 National Security Letter process.

One can believe ardently in, and argue with great coherence for, the necessity and moral legitimacy of counter-terrorist espionage and surveillance activities and still recognize the magnitude of the moment and the deep consideration necessary as we face it. Some slopes are actually slippery: what is required in the warning is some evidence of the accumulating ice.

The worst responses to the civilizational transformation that awaits us are the stupid-blasé and the conventional-cynical. Of the former, we have this example from Chez Pazienza.

It isn’t because you never know who’s watching you. It’s because everyone is watching you. You’re always under surveillance. Everyone is connected to the social media hive mind. Whether you’re jacked in yourself, by yourself, putting your own information out there for all to see, or the person next to you is commenting on what’s going on in his or her general vicinity and you just happen to be a part of the action, you have no expectation of privacy anymore.

You can let this paralyze you. You can let it make you crazy. Or you can let go.

You have no idea where the guards of this prison are or how many of them there are at any one time. But you always know they’re there. You have no idea exactly who’s watching you. But you know you’re being watched. That’s the Panopticon.

But if you don’t know who’s watching, whether it’s the NSA or the guy sitting across the street from you on a date, is it really that big a deal? Remember: distance and ignorance. Widen the scope big enough and far enough — make the eyes invisible — and who really has time to care?

Let go. Let it wash over you. Enjoy it. The matrix is fun. Who needs bodies? Who needs reality? (And hey, man, what’s reality anyway? Know what I mean?) If everyone is watching you, it’s like no one is –get it? While their eyes were watching God, God snoozed.

Until he wakes up.

Somehow, under much more low-tech surveillance, the minions behind the Iron Curtain did not discover such a bearable lightness of being. Pazienza, it appears, is ready to love Colossus.

Of conventional thinking, always ready to dismiss the extraordinary development or solution, outside of any equivalents of the Daughters of the American Revolution and the Congregation for the Doctrine of the Faith, you will find no greater repository than government officials and their establishment political journalist compeers, who are often prone to consort with conventional thinking’s evil twin, cynicism. Those who do not are prone to think as if the dysfunctional, striving liberal topia that is the United States of America is the end of history, and other than the GOP trying to roll back abortion rights in state legislatures and reconfigure Jim Crow, nothing calamitously degenerative can ever happen to American democracy until, one presumes, the Sun burns out.

It would do well to remind, then, that in the aftermath of 9/11, when government security professionals felt challenged by the demand to imagine the threats we might face, they turned, of all places, to Hollywood. Or look back at the record of diplomats and science fiction writers and check who has had the better record of anticipating what the future would deliver, especially through technology.

We have been called on the plane to look out the window, and even it was by some guy from a Twilight Zone episode, there is frost on the wing. It’s time for deicing.

AJA

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