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Snowden and the Surveillance State

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When I first found out that the National Security Agency (NSA) was tracking my telephone and Internet activity, I must confess, a part of me felt flattered.

Sure, it’s creepy, illegal, and unconstitutional, but on a certain level the idea that a supersecret government agency supposedly responsible for protecting the country from terrorists and other evildoers would bother with creating an electronic dossier on me was, well, flattering. If what I write, say, watch, and read is really that important, then I must really be important too. Right?

Well, not really. The NSA has constructed a vast spy apparatus that is now scooping up practically all the data transmitted through electronic communications in the United States and abroad. The fact that I was merely one of a few hundred million souls being targeted by the U.S. empire’s global panopticon somehow made me feel less special.

While the NSA claims its domestic spying is vital to national security, it is not clear how it is making the country more secure. If anything, the mass surveillance now being conducted adds to the size of the already-massive intelligence haystack, and thus can only impede the tracking of genuine terrorists.

Edward Snowden is the former CIA employee and NSA contractor who made headlines this June by leaking classified information to Glenn Greenwald of the London Guardian. Greenwald’s exposés revealed various surveillance schemes such as the interception of U.S. and European telephone “metadata” and the PRISM Internet-surveillance program.

The documents leaked by Snowden show that the NSA is gathering telephone records of every Verizon customer. From this we can presume similar arrangements exist with most or all other telecommunication companies. The records being collected show who is calling whom and when. This so-called metadata does not provide the content of the conversations — although according to some, the agency has the capability to access that information too. The documents regarding the PRISM program show the NSA is monitoring the Internet activity of all the country’s major Internet-service providers.

While some rank the Snowden leaks as among the most significant in US history, their significance may not be so much in what they reveal as in what they confirm.

In 2005, James Risen and Erich Lichtblau of the the New York Times reported that the Bush administration had defied the Foreign Intelligence Surveillance Act (FISA) by ordering the NSA to conduct warrantless electronic surveillance of domestic telephone calls. A year later, USA TODAY informed readers that the NSA had been secretly collecting the phone-call records of tens of millions of Americans. In 2012, Wired magazine published a cover story by James Bamford on a massive new NSA data-storage center being constructed in the Utah desert. And recent years have seen a slew of whistle-blowers (Mark Klein, Russell Tice, William Binney, Thomas Andrews Drake) coming forward to expose serial abuses at the NSA.

Well before Edward Snowden became a household name, it was clear to anyone following these developments that the NSA was engaged in mass surveillance against the American people.

Snowden has received greater attention in the mainstream US media than other whistle-blowers, however. Why this is the case is anyone’s guess. The real value of Snowden’s revelations is the detail they provide. His leaks identify specific programs and their targets — which apparently include everybody and everything.

Now President Obama has defended the NSA’s surveillance programs, saying, “If people can’t trust not only the executive branch but also don’t trust Congress, and don’t trust federal judges, to make sure that we’re abiding by the Constitution with due process and rule of law, then we’re going to have some problems here.”

Yes, we most certainly do have some problems — one being a secretive system that is, despite the president’s assurances, devoid of all meaningful oversight.

Gary North recently provided a pithy summary of this problem: “The NSA — [using a] secret budget — is using a secret law and a secret court system — the FISA-authorized court system.”

The Foreign Intelligence Surveillance Court (FISC) is not a “court” in the normal sense. While technically part of the judicial branch, FISC is a secret tribunal that has effectively become an appendage of the executive branch. Indeed, until very recently, the court convened in a room located in the executive branch’s Justice Department building.

FISC’s rulings are secret, and no challenges to the government’s warrant petitions are permitted. Concerns regarding FISC’s independence are hardly allayed by its record: since 2001, the court has rejected only 10 of the more than 15,000 warrant applications made by the government.

Among the documents leaked by Snowden is the FISC order authorizing the NSA to scoop up billions of telephone calls within the United States. While the ruling itself remains classified, the Wall Street Journal is reporting that the court adopted an extremely broad interpretation of the USA PATRIOT Act in order to provide the NSA with legal cover.

Despite the FISC ruling, the NSA’s mass surveillance is a clear violation of the Fourth Amendment, which reads

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.

The whole point of the Fourth Amendment is to prevent the very thing that the NSA is doing.

President Obama’s claim that there is effective Congressional oversight of the NSA is as absurd as his claims about judicial oversight.

Consider that the director of national intelligence, James Clapper, has already admitted to intentionally giving false testimony to Congress. And the NSA director, General Keith Alexander, has been caught lying to Congress on multiple occasions. Yet there is no call for these men to resign, nor is there any hint of legal action being brought against them.

Congressional oversight of the intelligence agencies has always been notional, but when the director of national intelligence and the director of the NSA can repeatedly give false testimony before Congress and not get sacked or face any legal penalties, it has become a charade.

There are signs that resistance to our burgeoning surveillance state is growing on Capitol Hill. A few senators are reportedly considering modifications in the FISA law that would increase FISC’s transparency. And an amendment to rein in the NSA was narrowly defeated last week in the House. Such a close vote regarding the NSA would have been unthinkable only a few months ago.

While we can find encouragement in these developments, we shouldn’t delude ourselves. What is necessary is not a tweaking of unconstitutional laws (FISA, the USA PATRIOT Act) in the hopes of curbing future abuses. Today’s surveillance state is the logical outcome of the national-security state that arose after World War II. Since then, this cancer in the body politic has metastasized and is killing what life remains in our constitutional republic. As FFF’s Jacob Hornberger writes,

The national-security state apparatus was grafted onto our constitutional order to fight a Cold War against America’s World War II partner and ally, the Soviet Union. The apparatus, which has effectively become a fourth branch of the U.S. government — and the most powerful branch at that — consists of three sub-branches: the Pentagon, the CIA, and the NSA. The CIA and the Pentagon carry out the foreign policies that engender the anger and hatred for the United States among the foreign victims of the policies. Then, when a certain percentage of those victims retaliate with anti-American terrorism, the NSA responds with a massive surveillance scheme that says, “We must do this to keep you safe from the terrorists.”

For anyone who is genuinely interested in a free society, there is but one solution to this problem, and that solution lies not in “reform” or “reining in” the NSA. As long as the military and the CIA are engaged in military empire and foreign interventionism, the NSA will have its perpetual justification for spying on Americans and the rest of the world, i.e., “keeping us safe.” By dismantling the entire national-security state apparatus, including the vast military-industrial complex and the CIA, the justification for NSA surveillance of the American people disintegrates, which means, of course, that the NSA can be dismantled as well.

Well said.

Until the national-security state itself is thoroughly demolished, we should not expect to see a change in our country’s destructive course.

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    Tim Kelly is a columnist and policy advisor at The Future of Freedom Foundation in Fairfax, Virginia, a correspondent for Radio America’s Special Investigator, and a political cartoonist.