Roger McCormack ’14, Staff Writer
Edward Snowden’s revelatory and courageous unveiling of the U.S. surveillance apparatus systematically documents the capacious and unconstitutional powers granted to the National Security Agency to scrutinize the internet and telephone records of American citizens.
The New York Times documents what was originally proclaimed a necessary precaution against terrorist attacks, has transformed into an abrogation of rights explicitly provided in the Fourth Amendment of the U.S. Constitution: “Since 2010, the National Security Agency has been exploiting its huge collections of data to create sophisticated graphs of some Americans’ social connections that can identify their associates, their locations at certain times, their traveling companions and other personal information, according to newly disclosed documents and interviews with officials.”
This policy is predicated upon the capabilities of intelligence officials to “discover and track” overseas targets, linking disparate elements within the broad web of email, internet, and phone records the NSA has woven. The NSA operates with minimal scrutiny, as the Times reports: “Almost everything about the agency’s operations is hidden, and the decision to revise the limits concerning Americans was made in secret, without review by the nation’s intelligence court or any public debate.”
The sheer scale of the intelligence gathering — estimated to be as much as 700 million phone records per day in 2011 (not to mention email and internet records) — is momentous and disquieting for the ostensible custodians of the nation’s security. Suppose, for instance, that an Iranian or Chinese hacker breaks into this system. Both countries have proven their prowess in this domain numerous times, and the minute documentation the program tabulates could prove to be invaluable for foreign governments.
The threat is also inherent to the unbridled power of the NSA. Even regarding the Obama administration in a favorable light does not remove the fears of flagrant abuse, as a future president far less charitable could easily be elected with the same immense power at his disposal. This provides a significant caveat against centralized and unaccountable forms of power by elites; whose philosopher king spirit is reflected in the indifference and contempt with which they regard the U.S. populace.
Glenn Greenwald, the Guardian journalist who broke the story, said the NSA has the power and “the technological capability, if not the legal authority, to target even U.S. persons for extensive electronic surveillance without a warrant.”
The NSA countered the claim that the program would be suspect to abuse, saying “Our tools have stringent oversight and compliance mechanisms built in at several levels.” But to imagine that a federal bureaucracy is devoid of self-aggrandizing officials and bereft of corrupt is to commit to a view of statecraft both ahistorical and foolish. The dishonesty of the program’s minders offers a clear harbinger of these trends, and exhibits what entrusting ‘benign’ leaders with significant power entails.
Gen. Keith Alexander, the director of the NSA, apropos of the debate the leak ignited, said “we can audit the actions of our people 100 percent, and we do that,” though the complexities of the NSA bureaucracy raise relevant questions regarding the capacity for a comprehensive audit. Consider the claims of Snowden’s ease at accessing the NSA’s records: He had a top secret security clearance and his actions were largely unaudited. “At certain levels, you are the audit,” an intelligence official told NBC News.
The New Yorker reported that Alexander also lied audaciously about the spying program, denying “14 times that the agency had the technical capability to intercept e-mails and other online communications in the United States.”
The secrecy of the program is derived from the supposed rectitude secrecy provides, as transparency is often derided for impairing efficiency and security. The malfeasance at the highest level of the program discounts this critique however — a critique often fuelled by fear-mongering and authoritarian zeal rather than genuine concern for the program’s constitutionality.
For example, an unclassified report published by five federal agencies found that the program “had difficulty citing specific instances when the National Security Agency’s wiretapping program contributed to successes against terrorists,” and “found that other intelligence tools used in assessing security threats posed by terrorists provided more timely and detailed information.”
Congress has passed a slew of laws providing immunity from legal accountability for groups engaged in warrantless wiretapping, most notably in the 2008 Foreign Intelligence Surveillance Amendments Act, which provided retroactive immunity for institutions engaged in 4th amendment violations. The ACLU’s attempt to challenge the constitutionality of this act was struck down by the Supreme Court, which ruled that because the ACLU cannot actually prove that the NSA is spying on its clients, the evidence that would be doubtlessly produced by a lawsuit remains obscured, eluding justice and a forthright debate on the issue.
President Obama has emphatically advocated for a less opaque and reformed surveillance policy, declaring: “I’m tasking this independent group to step back and review our capabilities, particularly our surveillance technologies, and they’ll consider how we can maintain the trust of the people.”
The president selected Director of National intelligence James Clapper to steward an increased emphasis on transparency, an individual who possesses inordinate power and knowledge of the spying program. Nonetheless, in the following interrogative posed by Sen. Ron Wyden of Oregon, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded with “”No sir … not wittingly.” The Clintonian art of subterfuge on parade here does justice to the criticism of an agency intoxicated on the power it holds, and the dangers of failing to check this power.
Obama also stated that the reform would be facilitated by an “independent” auditor, and not an individual enmeshed in the NSA’s machinations — claims patently false. This is further sullied by the penchant of the NSA to misuse and err in supervising information. A recent release of documents shows that a 2009 judge on the Federal Intelligence Court harshly reproached the agency for “violating its own procedures for gathering and analyzing phone records, and then misrepresented those violations to the court.”
The Bill of Rights, wherein the Fourth Amendment explicitly provides for protection against “unreasonable search and seizures without due process of law,” owes its provenance to the Antifederalist opposition to the constitution. Turning to a champion of the Antifederalist cause is helpful in illuminating the dangers of entrusting substantial power in the hands of a few, irrespective of supposed benevolence.
Patrick Henry remains remarkably prescient in his explanation of secrecy’s effects on a country’s citizens: “They may carry on the most wicked and pernicious schemes, under the dark veil of secrecy. The liberties of a people never were no ever will be secure, when the transactions of their rulers may be concealed from them. The most iniquitous plots may be carried out against their liberty and happiness.”
In contrast, Snowden said “The Fourth and Fifth Amendments to the Constitution of my country, Article 12 of the Universal Declaration of Human Rights, and numerous statutes and treaties forbid such systems of massive, pervasive surveillance. While the U.S. Constitution marks these programs as illegal, my government argues that secret court rulings, which the world is not permitted to see, somehow legitimize an illegal affair.”
How invigorating to know these problems remain perennial, and that, regardless of epoch, an essential defense of fundamental liberties should so persistently come to the fore.