Two weeks ago, after the President’s national security address, I was left with little reaction other than the speech sounded good. The President made overtures to “refining” and ultimately repealing the AUMF. There was some measured rhetoric about drone warfare and a frank discussion about GITMO. The President even tolerated a heckler, but nothing about the speech appeared to suggest a serious re-evaluation of American national security policy. But as this week suggests, positive words, whether in a speech or in law, can easily be used to obfuscate more alarming acts.
This week, of course, came news that our government is collecting metadata of the phone calls of millions of (if not all) Americans. The time, location, and duration of our calls are being recorded, aggregated, and transformed into a vast network of personal information. Last night came the further revelation that the NSA has continued a vast data mining enterprise with the participation of every major tech company–Google, Facebook, Apple, Microsoft, Yahoo, Skype, YouTube, AOL. Whether through ignorance or an intentional gag orders, these tech giants have been forced to hem and haw about what exactly they know and what exactly they’re giving away.
As a number of people have recalled, then-Senator Obama cautioned against this sort of intelligence dragnet. “We have to find the right balance between privacy and security, between executive authority to face threats and uncontrolled power,” he said. “What protects us, and what distinguishes us, are the procedures we put in place to protect that balance, namely judicial warrants and congressional review. These aren’t arbitrary ideas. These are the concrete safeguards that make sure that surveillance hasn’t gone too far. That someone is watching the watchers.”
Speaking to reporters today, the President has inverted his priorities: “You can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.” The problem is that “society” hasn’t made this choice; a small collection of government officials have.
There is little question that the letter of the law has been followed here. Both judicial review and congressional oversight are in place, but can anyone say whether they are effective? It’s impossible, because it’s all secret. Few members of Congress were aware of the breadth of these programs, and those that were legally prohibited from discussing them. Our congressional oversight effectively amounts to a handful of members, having access to sensitive documents within tightly controlled conditions without the resources to effectively “oversee” anything.
Meanwhile, to be blunt, our Foreign Intelligence Surveillance Court is a judicial rubber stamp. In 2012, 1,789 applications to conduct electronic surveillance for foreign intelligence purposes were made to the FISC. One was withdrawn. None were denied. A further 212 applications were made to the FISC to access business records. None were denied.
In February, I attended an address by Rajesh De, General Counsel of the NSA, wherein he attempted to disabuse the audience of several “myths” about the National Insecurity Apparatus:
False Myth #1: NSA is a vacuum that indiscriminately sweeps up and stores global communications.
False Myth #2: NSA is spying on Americans at home and abroad with questionable or no legal basis.
False Myth #3: NSA operates in the shadows free from external scrutiny or any true accountability.
At the time, I remember being struck by how much of his remarks focused on procedure and structural legalese. As Jennifer Granick put it today, however, the complexity of our national security laws are such that it allows officials to offer “non-denial denials” that mask the truth and obfuscate the bigger concerns. For example, it may well be true that the NSA neither sweeps up nor stores “communications.” But if collecting every phone number you dial, long your call last, and where both ends of the call came from are not legally “communications,” I imagine that might come as a surprise to most average people.The government’s initial response–both in the Administration and in Congress–have been dismayed and outraged at the “magnitude of the leak” involved. Jack Clapper, director of National Intelligence, has called this “unauthorized disclosure” utterly “reprehensible and risks important protections for the security of Americans.” Or perhaps these officials are more worried about a political backlash:
If so much information is being gathered about almost everyone to figure out patterns, then it’s not as though you’d be tipping off a particular target that we were on to him. Would publicizing the order that this information be collected have given away technical secrets to our enemies (or rather, at this point, has publicizing it done so)? I don’t see how. I can see why the government might want to keep this data-mining program secret to avoid a political backlash, but that is of course not a good reason for concealing it.
No laws have been broken. No single politician or political party alone should be blamed for this state of affairs, but we ought to become more mindful about the disconnect between the rhetoric surrounding government transparency and personal privacy and the actions of our society when these principles are at stake.
