The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
—Fourth Amendment to the US Constitution, 1791.
CODENAMED Verax (Truth-teller), a young contract employee with the National Security Agency (NSA) sent encrypted e-mails to two well-regarded journalists—Barton Gellman of The Washington Post and Glenn Greenwald of The Guardian . Verax worked for Booz Allen Hamilton, a private consulting firm owned by The Carlyle Group, whose entire raison d'etre was to provide services for the United States government’s myriad agencies. In less than three months at his job as Booz Allen’s systems administrator based in Hawaii, Verax uncovered documents of a massive U.S. government programme to spy on its own population—PRISM (or the more bureaucratic name, US-984XN). Verax gave documents that would have remained classified until 2038 to Gellman and Greenwald, who published their stories on June 6. Three days later, on his request, The Guardian revealed that Verax was a 29-year-old named Edward Snowden who had taken refuge in Hong Kong. “I don’t want to live in a society that does these sorts of things,” he said of the PRISM programme. “I do not want to live in a world where everything I do and say is recorded.”
The response was immediate and widespread. Outrage inside the U.S. impacted President Barack Obama’s popularity ratings, and it spurred his critics to charge him with betraying his liberal lineage. That this was a programme with origins in the George W. Bush administration, with links to other programmes from the 1950s, was of little consequence. Obama had come to office promising to undo large swathes of the Bush War on Terror approach—including warrantless wiretaps on U.S. citizens, the main issue that incensed the liberty-minded U.S. population.
Obama himself deflected the matter of Snowden’s leak, saying that it was important “to distinguish between the deep concerns we have as a government around theft of intellectual property or hacking into systems that might disrupt those systems—whether it is our financial systems, our critical infrastructure, and so forth versus some of the issues that have been raised around NSA programmes.”
The issue for Obama was Snowden’s leak itself (and the work of hackers in general), not what the leak showed. No wonder then that the Obama administration said that Snowden’s “reckless disclosures” had created “significant misimpressions” in the media about the programme (said Director of National Intelligence James Clapper), and that Snowden should be prosecuted for his action. Snowden, in a safe house in Hong Kong, has sought protection from the authorities of the Special Administrative Region of China.
Snowden’s documents showed how the U.S. government had strong-armed Verizon, the U.S. broadband and telecommunications company, into providing data on every single call that went through its system. Furthermore, his information showed that the NSA routinely captured material from the Internet that went through servers of nine leading U.S. companies (Apple, AOL, Facebook, Google, Microsoft, PalTalk, Skype, Yahoo and YouTube)—most of the servers used by billions of people around the planet. These companies deny they gave authorisation for such data mining.
On June 6, James Clapper released a statement defending the programme and suggesting that the leaks were being taken out of context. However, what Clapper admitted to is no less chilling: “The programme does not allow the government to listen in on anyone’s phone calls. The information acquired does not include the content of any communications or the identity of any subscriber. The only type of information acquired under the court’s order is telephony metadata, such as telephone numbers dialled and length of calls.”
In other words, the government is able to find out who is talking to whom without the private parties having given any cause for this information to be collected and analysed. To provide context, Clapper authorised the declassification of more documents, although these do not seem to provide the kind of justification that he sought from them. The “robust legal regime” that Clapper said constrained the programme gives cold comfort to watchdog agencies and groups committed to Internet freedom.
Clapper’s credibility is on the line. On March 12, a congressional committee asked him if the NSA collected “any type of data at all on millions or hundreds of millions of Americans”. He answered, “No, sir. There are cases where they could inadvertently, perhaps, collect, but not willingly.” Federal legislation, he noted, provided “strictures against tracking American citizens in the United States for foreign intelligence purposes—and that’s what those agencies [the NSA and the Central Intelligence Agency, or CIA] are set up to do.” Clapper’s denials are part of the long history of the NSA’s shadowy existence. But they are now shown to have been false. The scandal here is partly the government’s spying on its citizenry and partly the Obama administration’s denials of these programmes, which it had come to office to end.
No such agency The NSA was formed in 1952, with the express purpose of intercepting and analysing electronic communications in foreign countries. Initially it simply recorded radio broadcasts, but it soon morphed into an active spying agency using satellites and various technologies to listen in on telephone conversations and to intercept telegraph communications. In the era of the Internet, the NSA began to gather emails and trails left behind by users on the web. Drawing in information (1.7 billion pieces of data a day) is only half its task. The rest is analysis, which it does through complicated algorithms that sort through the data using keywords—not for nothing is the NSA known as the single largest employer of mathematicians.
Controversy has dogged the NSA since at least the 1970s. Articles in left-wing publications suggested through small-scale leaks that the NSA had drawn up a vast global eavesdropping network called ECHELON. In 1971, a 25-year-old NSA analyst, Perry Fellwock, gave an extended interview to the left-wing magazine Ramparts where he disclosed his work on the NSA spying programme (it was published using a pseudonym, Winslow Peck, as “U.S. Electronic Espionage: A Memoir”). The editor for the article, David Horowitz, wrote in his introductory note: “What we are dealing with is a highly bureaucratised, highly technological intelligence mission whose breadth and technological sophistication appear remarkable even in an age of imperial responsibilities and electronic wizardry. So that not a sparrow or a government falls without NSA’s instantaneous knowledge, over two thousand Agency field stations dot the five continents and the seven seas.” The article embarrassed the CIA, which discounted it on the basis of where it appeared (in a counter-cultural magazine). The mainstream media ignored these revelations.
In 1976, Fellwock travelled to London, where he met the investigative journalist Duncan Campbell. Campbell had been looking at the spying programme the British government was running in close alliance with the NSA. Campbell wrote about the Government Communications Headquarters (GCHQ) in another, at that time marginal magazine, Time Out (“The Eavesdroppers,” June 1976). It revealed the close nexus between the U.S. and its allies in a global electronic spying programme. Campbell elaborated on this 10 years later in New Statesman (“They’ve Got it Taped—Somebody’s Listening”, August 1988) despite being harassed by the British government (including an arrest in 1977 for meeting with a Signals Intelligence official, John Berry, in his home). Few took Fellwock’s revelations seriously. The pall of the Cold War allowed intelligence agencies and their governments to take advantage of a population that was either terrified of the Soviet Union or detached from politics by the post-War boom. Spying on the Soviets and using the NSA to undermine guerilla movements in the Third World did not seem to bother citizens in the West.
What raised the hackles of parts of the U.S. citizenry was another set of revelations: about domestic spying. In 1970, a U.S. Army instructor, Christopher Pyle, told the press that his employers were spying on civilians. Pyle’s statement attracted the attention of Senator Sam Erwin, who opened a hearing on domestic spying in his Judiciary Subcommittee on Constitutional Rights. In his opening statement, Erwin laid out the principles for his objection: “The dangers to privacy and the constitutional rights of expression and due process of law posed by political surveillance have been widely recognised and I will not dwell up on them here except to emphasise that political surveillance of any kind which is not directly relevant to a legitimate governmental purpose is repugnant to a free society.” The Army’s former general counsel, Robert Jordan, told Erwin’s committee that the Army went into the domestic spying business around the time that the military was called out in Detroit, Michigan, to quell civil disturbances after the assassination of Martin Luther King, Jr. Knowledge of the “enemy” was essential, said Jordan, who said that in retrospect, the spying did get “out of hand”. Who was the enemy in 1967-68? “I don’t want to suggest that the military viewed this portion of the American people as the enemy,” Jordan explained. “However, there was a short-term problem with the military on the one side and some people engaged in lawless acts on the other. Until that period of time ended, until the disorder was brought under control, the people on the other side were essentially the enemy.” It was this kind of thinking that allowed the Army to treat its own population as foreigners.
Further leaks about the CIA and the Federal Bureau of Investigation opening the mail of U.S. citizens without warrants and of assassination plots against foreign leaders led to the empanelment of the Church Committee in 1975, whose 14 reports detailed the malfeasance of the U.S. intelligence world. The reports led to the passage of the Foreign Intelligence Surveillance Act (FISA) in 1978 which sought to hem in the agencies’ ability to run wiretaps (including the requirement that the government agencies go to a secret FISA court to get warrants to do what they had been doing all along). In the aftermath of the FISA Act, U.S. investigative journalist James Bamford creatively and doggedly used the Freedom of Information Act to stitch together the workings of the NSA in his book The Puzzle Palace (1982). It showed how the NSA created intercept stations to harvest military signals and civilian telephone calls without any FISA warrant—the sheer act of drawing in these signals meant that the NSA was promiscuous with its technology, unable to previously attend to any constitutional niceties as the airwaves delivered private communications into its net. Bamford’s book was explosive, but it did not inflame a debate.
After the attacks of September 11, 2001, the U.S. went into overdrive. Not only did the Bush administration hasten to find targets to attack in retribution (Al Qaeda, certainly, but also Iraq was discussed within hours of the attack), but it also wanted to use every means available to ramp up surveillance against suspected terrorists. In that arsenal, the Bush administration found the NSA. Shortly before 9/11, the European Parliament had released a report on ECHELON, which found that the system carried out “quasi-total surveillance” through intercepts by satellites of “any telephone, fax, Internet or email message sent by any individual and thus to inspect its contents”. The satellite system operated on a worldwide basis with cooperation extended not only by the U.S. and its closest allies (Britain, Canada, Australia and New Zealand), but also by other unnamed countries. The threat to privacy, the European report from July 2001 noted, was not just because of the “powerful monitoring system”, but also because it operated “in a largely legislation-free area”. The tools that Bush was to set in motion and that Obama would inherit were already known in 2001, as were their problems. It did not stop the U.S. administration.
In 2012, former NSA analyst Andrew Wiebe made a deposition before the 9th Circuit Court about the reckless abandon in the NSA (this was in Jewel vs NSA , filed by the Electronic Freedom Foundation). “Everything changed at the NSA after the attacks of September 11. The prior approach focussed on complying with the Foreign Intelligence Surveillance Act. The post-September 11 approach was that NSA could circumvent federal statutes and the Constitution as long as there was some visceral connection to looking for terrorists.” William Binney, another NSA analyst, told the courts in a deposition that after 9/11 “the individual liberties preserved in the U.S. Constitution were no longer a consideration. It was at that time that the NSA began to implement a group of intelligence agencies now known as the President’s Surveillance Programme [PSP].”
The PSP emerged after 9/11 when the FBI informed the White House that nothing more could be done to collect information under existing legal guidelines. President Bush broadened the remit for the agencies, which began not only to spy on potential Al Qaeda operatives (a programme that the government has acknowledged) but also to mine e-mail message and telephone call records for data. An unclassified report on the programme was shared with congressional leaders in 2009. It is said to contain evidence of activity that goes outside the law. Democratic leader Nancy Pelosi said at that time: “No President should be able to operate outside the law.” What was not clear at that time was that the PSP-type programme had morphed far beyond the Bush administration and formed part of the Obama administration’s war on terror.
Metadata Objections to the NSA programmes came from those who were incensed by the loss of personal freedom. What was less considered was that the programme, among certain communities (such as Muslims in the U.S.), had become a form of repression itself. Clapper said that the NSA did not collect information randomly, but through the use of metadata, the parameters of which have not been disclosed (apart from anodyne statements such as “number, time and location of the call”). It is likely, however, that national origins (Pakistan, Afghanistan and Yemen) and religious affiliation (Islam) would play some role in setting the factors of the metadata. The CIA-New York Police Department programme of surveillance over Muslim groups uncovered in 2011 indicates that this kind of targeted espionage is likely to frame the NSA’s approach.
When Obama emerged as the standard-bearer of liberalism, he promised to close down many of the Bush administration’s excesses, including the prison in Guatanamo, the black sites around the world, and, of course, the warrantless wiretapping that was part of the PSP programme. In 2007, Obama criticised the Bush administration for its spy programmes, saying that Bush “puts forward a false choice between the liberties we cherish and the security we provide”.
The previous year, Obama’s current Vice-President, Joe Biden, said, “The NSA collection of phone records violated the privacy of two hundred million Americans. And I think Congress should investigate this data mining.” It was based on this robust defence of civil liberties that Obama and Biden were able to galvanise the liberals in 2008. The varnish on those promises has long worn off.
It is a measure of the times that the Republican who introduced the Patriot Act in 2001, Jim Sensenbrenner, released a statement saying, “As the author of the Patriot Act, I am extremely troubled by the FBI’s interpretation of this legislation. While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses. Seizing phone records of millions of innocent people is excessive and un-American.” Obama is now saddled not only with the totality of the Bush legacy, but with having taken that legacy to much lower depths.
Meanwhile, Snowden sits in Hong Kong, worried that he might be extradited to the U.S. where he will face serious charges, akin to what is now happening to Bradley Manning in a military courtroom. Attempts to malign Snowden are ongoing, as are threats against him from government authorities. When it appeared as if the Hong Kong government would turn over Snowden to the U.S., the Foreign Correspondents Club stepped in to offer him protection. Suggestions that the government in Beijing would pressure the Hong Kong authorities to turn over Snowden to the U.S. government as a way to smooth ties with the U.S. did not occur immediately. Hong Kong requires little in the way of pressure. Duncan Campbell’s investigations in the 1970s found that the colonial government in Hong Kong under its governor Sir Murray MacLehose had created a secret Standing Committee on Pressure Groups, whose work was to spy on any opponent of the colonial regime. As Campbell put it, “Hong Kong is a dictatorship, and scarcely a benevolent one.” It is not Beijing’s pressure that will be decisive here; Hong Kong, which has an extradition treaty with the U.S. inherited from its colonial days, offers Snowden no protection.
Snowden says he would like to go to Iceland, where the protections are seen to be strong as is the culture of Internet freedom. But there are no direct flights to Iceland from Hong Kong, or to Ecuador (in whose embassy in London the WikiLeaks founder Julian Assange sits). Having handed over his documents, Verax is now trapped. But he is sanguine, putting his fate in the hands of the “global public”.
COMMents
COMMents
SHARE