Our Comments on Leaks and Government Secrecy

The blockbuster exposé by The Guardian and The Washington Post that the National Security Agency (NSA) is capturing phone and Internet traffic squares fully with what we reported three months ago, that the government intends to store all digital traces of everyone's activities and is building a huge secret facility in Utah to conduct these operations and store terabytes of our private lives. That story was an outgrowth of a Supreme Court ruling that government surveillance cannot be challenged. You can find it here.

The media is only now becoming aware of the Utah installation. Over the weekend after the sensational leaks The New York Times mentioned it and showed a photo. A search showed only a single prior mention in the paper, and that was in an op-ed. Bill O’Reilly repeatedly expressed astonishment over the “million-square-foot” facility, calling it “ultra serious”. By now it is finally general knowledge.

Greenwald: "We didn't tell terrorists anything they didn't know, we told American citizens".

Catch-22: In response to requests that the public be told about how the secretly obtained data has thwarted terrorist actions, Senator Dianne Feinstein (D-Ca), the chair of the Senate Intelligence Committee, laments, “Here’s the rub. The instances where this has …disrupted plots, prevented terrorist attacks, is [sic] all classified. That’s what’s so hard about this”. The government says 'sorry', it cannot account for whether its spying program is justified because, well, everything is secret. Next question?

John McCain (R-Az) was asked by CNN’s Candy Crowley whether the revelations of government spying bother him. He replied, “Not really. I do believe that if this were September 12, 2001, we might not be having the argument that we are having today”. John Oliver of the “Daily Show” reacted with, “Yeah, but that’s not really the point, is it? The standard of what constitutes the best decisions cannot be, what decision would we make on our most vulnerable and panicked day”?

Eric Schmidt, chairman of Google, one of the facilitators of government spying, had this smug and self-exculpatory bit of fatherly advice for us all: "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place".

Snowden’s Access: There is speculation on whether a lower level computer technician — and working for a contractor, Booz Allen Hamilton, at that — could have had access to so much data. Russell Tice, a former NSA analyst interviewed on Chris Hayes’ “All In”, said it could happen. They tend to have less security at “out stations” like Hawaii, he said, where as part of a small staff Snowden may have had greater access than at a large installation like Ft. Meade intelligence headquarters in Maryland.

Still, what to make of Mr. Snowden? A note accompanying the first documents leaked to The Washington Post said, “As I worked in secret to resist them, selfish fear questioned if the stone thrown by a single man could justify the loss of everything he loves". In the Guardian interview (a longer version than you may have heard is found here) he explains that “a systems administrator is exposed to a lot more information on a broader scale than the average employee”. True enough, but he seems to brag when he then says:

“any analyst anytime can target any selected someone anywhere, but not all analysts have the authority to target everything, but I, sitting at my desk, certainly have the authority to wiretap anyone from you or your account or a federal judge or even the president”.

He continues with:

”I had access to the full rosters of everyone working at the NSA, the entire intelligence community, of everyone and undercover assets all around the world, the location of every station, what their missions are and so forth. If I’d just wanted to harm the United States, you could shut down the surveillance system in an afternoon”.

These are remarkable claims that ask us to believe there is no security at all at the NSA or its contractors. Rather, we seem to be hearing symptoms of grandiosity, amplified by the fact that he chose to come out into the open. “I think that the public is owed an explanation” is his stated reason, but he could have posted a statement on some blog. Is he looking to be celebrated for, as Chris Hayes said, for throwing “the rest of his life away for an act of conscience”?

Leaky Faucet: In 2010, The Washington Post reported that 854,000 Americans have top secret clearance and that nearly a third of them work for private contractors. In January the director for national intelligence reported that, as of last October, 582,524 workers at contractor firms had confidential to secret clearance, and 483,263 had top secret clearance. Is it any wonder that government secrets have now been leaked?

President Obama said “every member of Congress has been briefed on this program” and that "Congress is continually briefed on how these [data collection programs] are conducted, there are a whole range of safeguards involved and federal judges are overseeing the entire program throughout”. Nothing approaching every member of Congress was briefed and its members immediately went before the cameras to say they knew nothing about the programs. As for the federal judges, the secret FISA court to which the president refers has been spoken of by many as something of a joke, “a kangaroo court with a rubber stamp”, as (former NSA analyst) Russell Tice put it. That characterization owes to the fact that of the 20,862 applications to the FISA court from 2001 through 2012, only 11 were rejected.

How is “Telephony Metadata” Used? The phone records — date and time, calling number and number called, duration, cell tower for cell phones — might simply lie fallow in enormous warehouses of storage media, entirely inert until the NSA, CIA or any of our sixteen intelligence agencies happens upon a phone number of interest. Only then, perhaps, does software go to work developing a web of every call to and from that number (and all the calls to and from those contact numbers in turn) back through years, all of them to then be identified by name and location for investigators to track down.

Or the government may take a more active approach. Software may be constantly trolling through the data looking for whatever calling patterns seem suspicious according to arcane algorithms devised by NSA quants, leading to the faces behind the phone numbers who therefore need a closer look and to answer for themselves.

It seems to be the latter. Surely President Obama knows what is done with the data and days after the leaks he tipped us off that active use is the fact, saying “but by sifting through this so called metadata, they might identify folks who might engage in terrorism”.

Snowden expressed well how that can become more sinister: “You simply have to eventually fall under suspicion by somebody, even by a wrong call, and they can use the system to go back in time and scrutinize every decision you’ve ever made, every friend you’ve ever discussed something with and attack you on that basis to derive suspicion from an innocent life and paint anyone in the context of a wrongdoer”.

Haystack: “If you are looking for a needle in a haystack, you need a haystack”, said Jeremy Bash, the chief of staff to former defense secretary Leon Panetta, in support of the program.

Patriot Act: The infamous Section 215 of the Orwellian-named Patriot Act, rushed into law a month after the 2001 attacks and perpetuated since, is what the government claims gives it the authority to build that haystack of phone records. It allows the FBI to subpoena entire databases of hospitals, businesses and government departments as well as reader lists of libraries and bookstores, tax records, gun owner lists, driver licenses, and virtually any data the FBI decides could be useful.

So if you check out a book from your local library out of curiosity about, say, international terrorism, a knock on your door could result in removal of all your personal papers, tax records, bank statements, and your computer’s hard drive. And it is illegal for you to disclose to anyone else that this has happened. Until changed in 2006, the law even forbade you from informing your attorney that you had been subpoenaed.

Ron Wyden (D-Or), a member of the Senate Select Committee on Intelligence, and one of 10 senators to vote against re-authorization of the Patriot Act in 2011, said at the time, “I believe many members of Congress who have voted on this issue would be stunned to know how the Patriot Act is being interpreted and applied”. For years he has tried to tip off the American public to the government’s abusive use of the Act, but is constrained by secrecy laws. In a May 2011 speech in the Senate, Wyden said:

"The fact is that anyone can read the plain text of the Patriot Act, and yet many members of Congress have no idea how the law is being secretly interpreted by the executive branch, because that interpretation is classified. It's almost as if there were two Patriot Acts, and many members of Congress have not read the one that matters” .

In May of 2011 President Obama signed a four-year extension of the Act.

Clapper: Here’s a video of Director of National Intelligence James Clapper lying to Senator Wyden in a Senate hearing in March:



Clapper would later explain that it wasn't a question that could be answered with 'yes' or 'no'. Really?

Outreach: There is a truism that if a power is given to authority, it will be abused. Sure enough, under the Patriot Act the FBI overused — and often illegally — what are called “national security letters” to demand information from businesses and private citizens without having to get a judge’s approval. Tens of thousands of “NSL”s were issued each year such that FBI chief Robert Mueller had to go before Congress in 2007 and apologize for the agency’s out of control use of this oversight-free shortcut to target the public.

Section 215 of the Patriot Act gives the executive branch the right to commandeer “business records” and any “tangible things”, and here again we have an overbroad interpretation of that section on which the government bases its claim that it had the right to sweep up the nation’s entire telephone activity for years on end.

Here’s a question: Is it not likely that members of Congress, when they passed and reauthorized the Patriot Act, thought that “business records” referred to records of a company’s conduct of normal business operations? — financial and accounting data, purchasing records, contracts, personnel files, etc. In approving the act did those Congress members have any expectation that the government would cast aside those categories of data and instead reach past them to grab all the data about the company’s customers and their use of its product?

Good News! You’re Not Paranoid: A few days after the leak about phone and Internet surveillance, references to the omnipresent watchfulness of Big Brother in George Orwell’s “1984” popped up everywhere. Orwell’s book reportedly saw a 7,000% jump in sales over 24 hours.

A legal scholar named Daniel Solove, of George Washington University, whose book, “Nothing to Hide, The False Tradeoff Between Privacy and Security” was published a few months ago, argues that Franz Kafka’s world is a better fit. “The Trial” depicts an inscrutable authority that “that uses people's information to make important decisions about them, yet denies the people the ability to [know] how their information is used”, with the result that the power relationship between the people and the state is altered.

This Isn’t News: In December of 2005, the New York Times broke the story that, months after the 9/11 attacks, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials”. That secret bypass of the courts was, officially anyway, limited to international phone and e-mail traffic. But then on May 11, 2006, USA Today dropped a still bigger bombshell: “The National Security Agency has been secretly collecting the phone call record of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth…The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom are not suspected of any crime”.

So we’ve known this for years yet the recent leak seemed as startling as a drone strike. That the knowledge has been out there for years says that any terrorists lurking in the United States have long ago been alerted not to use phones other than prepaid, throwaway cells, as Greenwald said above. So why is the government spending all this money and could there really been any results as Ms Feinstein claims?

After the clamor fades, the public returns to what it was doing, and nothing changes — except that the surveillance programs grow ever larger.