The always-expanding bipartisan Surveillance State

Glenn Greenwald

FRIDAY, MAY 20, 2011 08:21 ET

AP

(updated below – Update II)

When I wrote earlier this week about Jane Mayer’sNew Yorker article on the Obama administration’s war on whistleblowers, the passage I hailed as “the single paragraph that best conveys the prime, enduring impact of the Obama presidency” included this observation from Yale Law Professor Jack Balkin:  “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state.”  There are three events — all incredibly from the last 24 hours — which not only prove how true that is, but vividly highlight how it functions and why it is so odious.

First, consider what Democrats and Republicans just jointly did with regard to the Patriot Act, the very naming of which once sent progressives into spasms of vocal protest and which long served as the symbolic shorthand for Bush/Cheney post-9/11 radicalism:

Top congressional leaders agreed Thursday to a four-year extension of the anti-terrorist Patriot Act, the controversial law passed after the Sept. 11 attacks that governs the search for terrorists on American soil.

The deal between Senate Majority Leader Harry Reid and House Speaker John Boehner calls for a vote before May 27, when parts of the current act expire. The idea is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government. . . .

From its inception, the law’s increased surveillance powers have been criticized by liberals and conservatives alike as infringements on free speech rights and protections against unwarranted searches and seizures.

Some Patriot Act opponents suggest that Osama bin Laden’s demise earlier this month should prompt Congress to reconsider the law, written when the terrorist leader was at the peak of his power. But the act’s supporters warn that al-Qaida splinter groups, scattered from Pakistan to the United States and beyond, may try to retaliate.

Now more than ever, we need access to the crucial authorities in the Patriot Act,” Attorney General Eric Holder told the Senate Judiciary Committee.

This will be the second time that the Democratic Congress — with the support of President Obama (who once pretended to favor reforms) — has extended the Patriot Act without any changes.  And note the rationale for why it was done in secret bipartisan meetings:  to ensure “as little debate as possible” and “to avoid a protracted and familiar argument over the expanded power the law gives to the government.”  Indeed, we wouldn’t want to have any messy, unpleasant democratic debates over “the expanded power the law gives to the government.”  Here we find yet again the central myth of our political culture:  that there is too little bipartisanship when the truth is there is little in Washington but that. And here we also find — yet again — that the killing of Osama bin Laden is being exploited to justify a continuation, rather than a reduction, in the powers of the National Security and Surveillance States.

Next we have a new proposal from the Obama White House to drastically expand the scope of “National Security Letters” — the once-controversial andlong-abused creation of the Patriot Act that allows the FBI to obtain private records about American citizens without the need for a subpoena or any court approval — so that it now includes records of your Internet activities:

White House proposal would ease FBI access to records of Internet activity

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. . .

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau’s authority. “It’ll be faster and easier to get the data,” said Baker, who practices national security and surveillance law. “And for some Internet providers, it’ll mean giving a lot more information to the FBI in response to an NSL.” . . .

To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is “incredibly bold, given the amount of electronic data the government is already getting,” said Michelle Richardson, American Civil Liberties Union legislative counsel.

The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. “You’re bringing a big category of data — records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information — outside of judicial review,” said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.

So first they conspire with the GOP to extend the Patriot Act without any reforms, then seek to expand its most controversial and invasive provisions to obtain the Internet activities of American citizens without having to bother with a subpoena or judicial approval — “they” being the Democratic White House.

Most critically, the government’s increased ability to learn more and more about the private activities of its citizens is accompanied — as always — by an ever-increasing wall of secrecy it erects around its own actions.  Thus, on the very same day that we have an extension of the Patriot Act and a proposal to increase the government’s Internet snooping powers, we have this:

The Justice Department should publicly release its legal opinion that allows the FBI to obtain telephone records of international calls made from the U.S. without any formal legal process, a watchdog group asserts.

The nonprofit Electronic Frontier Foundation alleges in a lawsuit filed Thursday that the Justice Department’s Office of Legal Counsel violated federal open-records laws by refusing to release the memo.

The suit was prompted in part by McClatchy’s reporting that highlighted the existence of the memo and the department’s refusal to release it. Earlier this year, McClatchy also requested a copy and was turned down.

The decision not to release the memo is noteworthy because the Obama administration — in particular the Office of Legal Counsel — has sought to portray itself as more open than the Bush administration was. By turning down the foundation’s request for a copy, the department is ensuring that its legal arguments in support of the FBI’s controversial and discredited efforts to obtain telephone records will be kept secret.

What’s extraordinary about the Obama DOJ’s refusal to release this document is that it does not reveal the eavesdropping activities of the Government but only its legal rationale for why it is ostensibly permitted to engage in those activities.  The Bush DOJ’s refusal to release its legal memos authorizing its surveillance and torture policies was unquestionably one of the acts that provoked the greatest outrage among Democratic lawyers and transparency advocates (see, for instance, Dawn Johnsen’s scathing condemnation of the Bush administration for its refusal to release OLC legal reasoning: “reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.”

The way a republic is supposed to function is that there is transparency for those who wield public power and privacy for private citizens.  The National Security State has reversed that dynamic completely, so that the Government (comprised of the consortium of public agencies and their private-sector “partners”) knows virtually everything about what citizens do, but citizens know virtually nothing about what they do (which is why WikiLeaks specifically and whistleblowers generally, as one of the very few remaining instruments for subverting that wall of secrecy, are so threatening to them).  Fortified by always-growing secrecy weapons, everything they do is secret — including even the “laws” they secretly invent to authorize their actions  — while everything you do is open to inspection, surveillance and monitoring.

This dynamic threatens to entrench irreversible, absolute power for reasons that aren’t difficult to understand.  Knowledge is power, as the cliché teaches.  When powerful factions can gather unlimited information about citizens, they can threaten, punish, and ultimately deter any meaningful form of dissent:  J. Edgar Hoover infamously sought to drive Martin Luther King, Jr. to suicide by threatening to reveal King’s alleged adultery discovered by illicit surveillance; as I described earlier today in my post on New York’s new Attorney General, Eliot Spitzer was destroyed in the middle of challenging Wall Street as the result of a massive federal surveillance scheme that uncovered his prostitution activities.  It is the rare person indeed with nothing to hide, and allowing the National Security State faction unfettered, unregulated intrusive power into the private affairs of citizens — as we have been inexorably doing — is to vest them with truly awesome, unlimited power.

Conversely, allowing government officials to shield their own conduct from transparency and (with the radical Bush/Obama version of the “State Secrets privilege”) even judicial review ensures that National Security State officials (public and private) can do whatever they want without any detection and (therefore) without limit or accountability.  That is what the Surveillance State, at its core, is designed to achieve: the destruction of privacy for individual citizens and an impenetrable wall of secrecy for those with unlimited surveillance power.  And as these three events just from the last 24 hours demonstrate, this system — with fully bipartisan support — is expanding more rapidly than ever.


UPDATE:  I confused the timing of the second incident I mentioned here:  the White House’s proposal to expand NSL’s to include Internet records.  That actually occurred last July.  But I also neglected to include in this list theObama White House’s September demands that all ISP’s and manufacturers of electronic communication devices (such as Blackberries) provide “backdoors” for government surveillance, so that bolsters the points I made here.


UPDATE II:  So patently illegal is Obama’s war in Libya as of today that media reports are now coming quite close to saying so directly; see, for instance, this unusually clear CNN article today from Dana Bash.  As a result, reporters today bombarded the White House with questions about the war’s legality, and here is what happened, as reported by ABC News‘ Jake Tapper:

http://www.salon.com/news/opinion/glenn_greenwald/2011/05/20/surveillance/index.html

See the below article for more context:

Jane Mayer on the Obama war on whistle-blowers

Jane Mayer on the Obama war on whistleblowers

AP

In a just released, lengthyNew Yorker article, Jane Mayer — with the diligence and thoroughness she used to expose the Bush torture regime — examines a topic I’ve written about many times here:  the Obama administration’sunprecedented war on whistleblowers generally, and its persecution of NSA whistleblower Thomas Drake in particular (Drake exposed massive waste, excess and perhaps illegality in numerous NSA programs).  Mayer’s article is what I’d describe as the must-read magazine article of the month, and I encourage everyone to read it in its entirety, but I just want to highlight a few passages.  First, we have this:

When President Barack Obama took office, in 2009, he championed the cause of government transparency, and spoke admiringly of whistle-blowers, whom he described as “often the best source of information about waste, fraud, and abuse in government.” But the Obama Administration has pursued leak prosecutions with a surprising relentlessness. Including the Drake case, it has been using the Espionage Act to press criminal charges in five alleged instances of national-security leaks — more such prosecutions than have occurred in all previous Administrations combined. The Drake case is one of two that Obama’s Justice Department has carried over from the Bush years.

Gabriel Schoenfeld, a conservative political scientist at the Hudson Institute, who, in his book “Necessary Secrets” (2010), argues for more stringent protection of classified information, says, “Ironically, Obama has presided over the most draconian crackdown on leaks in our history — even more so than Nixon.”

When it comes to civil liberties and transparency — cornerstones of the Obama campaign — those two paragraphs are a perfect microcosm of what has taken place.  And Mayer did not even include this quote about whistleblowers from candidate Obama:  “Such acts of courage and patriotism . . . should be encouraged rather than stifled.”  Apparently, by “encouraged,” he meant: “snuffed out with relentless prosecution and intimidation.”

But for the real microcosm of the Obama legacy in these areas, Mayer offers this:

Jack Balkin, a liberal law professor at Yale, agrees that the increase in leak prosecutions is part of a larger transformation. “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state,” he says. In his view, zealous leak prosecutions are consonant with other political shifts since 9/11: the emergence of a vast new security bureaucracy, in which at least two and a half million people hold confidential, secret, or top-secret clearances; huge expenditures on electronic monitoring, along with a reinterpretation of the law in order to sanction it; and corporate partnerships with the government that have transformed the counterterrorism industry into a powerful lobbying force. Obama, Balkin says, has “systematically adopted policies consistent with the second term of the Bush Administration.”

If someone asked me to point to a single paragraph that best conveys the prime, enduring impact of the Obama presidency, I’d point to that one.

As for why serious tensions developed between Drake and his NSA superiors, Mayer explains that it originated with the post-9/11 work of NSA mathematician (and political conservative) Bill Binney, whose work was intended to fix the NSA’s flaws that allowed the 9/11 plot to go undetected but was quickly exploited far beyond that purpose by Bush’s NSA:

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the “little program” that heinvented to track enemies outside the U.S., “got twisted,” and was used for both foreign and domestic spying“I should apologize to the American people. It’s violated everyone’s rights. It can be used to eavesdrop on the whole world.” According to Binney, Drake took his side against the N.S.A.’s management and, as a result, became a political target within the agency.

The prohibition on domestic spying was long one of the NSA’s central mandates, and objecting to the agency’s post-9/11 use of its awesome technology to turn inward on the American people is about as pure whistleblowing as it gets.  Recall what former Idaho Senator Frank Churchsaid about the NSA after his mid-1970s Committee uncovered decades of severe surveillance abuses under virtually every President since World War II:  “That capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.”  Mayer also details how Drake raised objections to what he suspected (rightly) was the NSA’s illegal eavesdropping on Americans without the warrants required by FISA.

Thomas Drake is a hero who deserves a Medal of Freedom Honor.  Instead, the Obama administration seeks to imprison him for decades while steadfastly protecting from prosecution — or judicial review of any kind — the high-level government officials who systematically broke the law.  Put another way — from the last paragraph of Mayer’s article:

Mark Klein, the former A.T. & T. employee who exposed the telecom-company wiretaps, is also dismayed by the Drake case. “I think it’s outrageous,” he says. “The Bush people have been let off. The telecom companies got immunity. The only people Obama has prosecuted are the whistle-blowers.”

And that’s to say nothing of the full-scale immunity also given thus far to Goldman Sachs, Bank of America, Merrill, and the mortgage fraudsters who have essentially stolen people’s homes.  About what motivates Obama’s conduct — his virtually complete reversal from the campaign pledges — Drake offers this speculation:

“I actually had hopes for Obama,” he said.  He had not only expected the President to roll back the prosecutions launched by the Bush Administration; he had thought that Bush Administration officials would be investigated for overstepping the law in the “war on terror.”

But power is incredibly destructive,” Drake said. “It’s a weird, pathological thing. I also think the intelligence community coöpted Obama, because he’s rather naïve about national security. He’s accepted the fear and secrecy. We’re in a scary space in this country.”

On Twitter this morning, The American Prospect‘s Adam Serwer said of theNew Yorker article:  “Jane Mayer does to warrantless wiretapping what she did to torture.”  That’s true, but one could just as accurately say that Mayer does to the Obama administration what she did to the Bush administration:  expose its most rotted attributes.  What I’ve discussed here is but a small portion of the article.  Read the whole thing to get the full picture of how devoted this President is to the National Security and Surveillance State he pretended to want to reform and to the preservation (and strengthening) of the sprawling secrecy regime that enables its corruption.

* * * * *

The Supreme Court today refused to hear an appeal from the Ninth Circuit’s decision upholding the Bush/Obama version of the “state secrets privilege” and thus denying a torture victim the right to sue in court for what was done to him (on the ground that even the torture regime — and its enabling renditions program — are far too vital of state secrets to permit judicial review).  Serwer describes the implications here.

http://www.salon.com/news/opinion/glenn_greenwald/2011/05/16/whistleblowers/index.html

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