A Second Thought About Surveillance
November 14, 2013 § Leave a comment
I recently posted a suggestion that NSA’s surveillance extravaganza might be rendered less intrusive by imposing a modified version of the “exclusionary rule” now applicable to criminal proceedings.[See The Surveillance Debate] I was trying to propose something with some chance of acceptance by Congress and some limit on government’s ability to monitor every detail of every citizen’s private life.
The Bob and Mike Show
After publishing those ideas, I watched an episode of “Face The Nation” in which Mike Rogers, chairman of the House Intelligence Committee appeared. Bob Shieffer, the host, allowed him to claim, without interruption or questions, that Edward Snowden was sharing with the Russian government all of the information he acquired as a contract employee of the NSA; that Snowden’s disclosures had endangered the lives of American soldiers in Afghanistan; that Al Qaeda is rapidly growing in strength; that unwise limits on intelligence gathering led to WWII [Huh? Say what?]; that fifteen thousand people lost their lives due to Al Qaeda; that he thought Snowden should return to the U.S. and “own up” to his guilt.
I am not making this up. This veteran Congressman and this veteran journalist teamed up to dump this mind-boggling garbage into millions of TV sets watched by countless viewers unaware they were being fed Rush Limbaugh style lies and speculative fairy dust. You can watch this performance by clicking here”
Keep in mind that Rogers is one of the two people who head Congressional committees chosen as official watchdogs to be sure NSA is not unwisely or illegally invading our privacy. The other is Diane Feinstein, chair of the Senate Intelligence Committee who, while not as unconcerned with the truth as Rogers, shares his enthusiasm for the surveillance program she is supposed to oversee.
The other news item that made me reconsider my suggestions involved the Director of the NSA, James Clapper. Director Clapper recently testified before the Senate Intelligence Committee. Senator Wyden, a member of the Committee, asked him if NSA was acquiring information about Americans. [American intelligence agencies are traditionally and legally supposed to devote their efforts to foreign sources, not domestic sources of information.] Clapper lied and said, “No.” Again, you can watch his perjured testimony as well as his later squirming confession in this clip:
Why The “Exclusionary Rule” Won’t Solve The Problem
I realized that my “exclusionary rule” suggestion will not work for several reasons. First,the “exclusionary rule”, works because it applies to activities well known to the victim: cops breaking down doors; tapping phone lines; abusing prisoners; peeping in windows, either in person or through more sophisticated means (like infrared camera monitors), etc. . And, even if the surveillance itself is done secretly, the exclusionary rule comes into play when the result is offered in court. If information is obtained from third-party sources, it is done with a subpoena and both the third-party and the defendant know about it. Surveillance, by contrast, is done in secret. The victim does not know he or she is being spied on. Consequently, in most cases, the “exclusionary rule” would never become applicable.
Second, the “exclusionary rule” works because the motive of those who illegally obtain information is to convict a criminal suspect of a crime and the rule frustrates that motive. The motive of NSA’s surveillance is only peripherally interested in securing a conviction in court. In fact, the goals of choice seem to be either death, interrogation in some secret location free from supervision by ordinary law enforcement agents or permanent imprisonment in a facility like Guantanmo. So again, the “exclusionary rule” would only rarely apply.
Third, the NSA surveillance program is dangerous, not because it may lead to criminal prosecutions in court, but because it gives government information useful for blackmailing and controlling American citizens for political purposes or for the purpose of forcing them to snitch on their neighbors or acquaintances. Anyone who regards these possibilities as unlikely should recall the Nixon or the McCarthy eras. There is no reason to assume that some future jackass will not emerge, willing to use whatever tools are available to punish his or her opponents.
Fourth, because the “exclusionary rule” is a courtroom remedy, it probably won’t work to limit NSA’s surveillance program because, whenever any aspect of that program is challenged in court, the government’s knee-jerk reaction is to invoke the “national security” defense that precludes all judicial remedies for violations of individual rights. That defense would doubtless be a barrier to the enforcement of the “exclusionary rule”.
Fifth and finally, as we have already learned, when all else fails, those in charge of the surveillance will lie to protect themselves and their program from public scrutiny. And, when and if their lies are exposed, the liars will not face prosecution and jail, as would any other person who lies to a federal agency, including the United States Congress. They will continue in their positions, presumably resolved to be more careful to prevent their next lies being detected and exposed.
So, I return to my original conclusion, stated in earlier posts: The only effective and safe way to protect against government’s abuse of surveillance is to prevent the original acquisition of the information. Government should not have access to so-called metadata consisting of information swept up through technological means concerning Americans, regardless of whether the subject of the information has done anything entitling the government to acquire the information.
It is true that such information is already collected by private enterprise agencies like Google, Facebook, Twitter, AT&T and countless other companies, who acquire the information for the purpose of carrying on their legal businesses. Their motive is profit. They have no reason to use the information to harm people. They do not have the power to jail or kill those about whom they have learned personal information. So, they can be trusted with the information. They may bother us with ads or telemarketing, but they won’t jail or kill us. That threat is limited to government. That is why we have a Constitution to protect us.
The government should be able to access that privately held data, based on warrants obtained from a court, based on publicly known criteria, not on a secret jurisprudence created by the FISA court. Its use of the data should be subject to judicial supervision when it involves, either primarily or incidentally, data concerning innocent Americans.
I acknowledge that the present Congress and President will not even consider such a solution. They are all invested in the GWOT (Global War On Terror), eager to boast of every Al Qaeda operator killed and every plot to blow up something in the U.S. thwarted; hostile toward any public disclosure of what they are doing and to whom they are doing it. So far as concerns the millions of Americans whose lives they pilfer and the thousands of innocent civilians they kill with drone strikes, manned aircraft bombing raids and ground invasions, they dismiss these as “collateral damage” and refer to them as the inevitable consequence of the GWOT.
Based on their reaction to these matters, it seems apparent to me that the present generation of Americans has embraced the fearful attitude sought by terrorists: They are terrified of another 9/11 bombing or worse, a nuclear version of that attack. Until 9/11, Americans enjoyed life safe behind two oceans. They could respond to foreign threats by sending young men and women into harm’s way, but they could remain insulated from personal danger. The shock of 9/11 was so severe that millions of Americans were susceptible to being duped into an Iraq war because some of their leaders scared them with tales of WMD’s and mushroom clouds.
So long as that syndrome, a kind of mass PTSD, persists, fear mongers like Mike Rogers will be able to divert attention from the threat to our freedom and the erosion of our constitutional rights that the NSA surveillance program poses. But, as readers of this blog are aware, I believe in pragmatic optimism: La Esperanza muere al ultimo, hope dies last.
My hope is that the excesses of the NSA and its promoters will provoke ordinary citizens to question and then to protest the expansion of government’s power to monitor the lives of innocent Americans. I predict that Edward Snowden will not be the last leaker to expose the excesses and dangers of NSA’s surveillance program. According to the Washington Post, 500,000 private contractors have security clearances entitling them to access secret material. The total number of people who have security clearances in the U.S. is estimated to be five million, of which 1.4 million have “top security clearance” access. Here is a link to a summary of the Post’s investigation: Secrecy in America
The summary has an interesting aside. One NSA employee told the Post that “only 40 or 50 persons” had access to some of the material exposed by Snowden and that elite group did not include Snowden, a relatively low level contract worker. So, the obvious question is: How secure are the secrets of this super top secret group?
I predict that efforts to ward off public knowledge of what the NSA is doing will fail. Americans are not inclined to be docile when they discover their private behavior has been and is being monitored, recorded and analyzed by faceless hoards of bureaucrats. I think there is a good chance that a movement will grow outside government to reign in this program. It will feature Twitter, Facebook and other social media. It will eventually involve public meetings and rallies. And, if it grows big enough and loud enough, cowering public officials will change their minds about NSA and its surveillance program.
I hope this happens. It may not. America may become the kind of country imagined in George Orwell’s 1984. Or, even worse, it may follow the model of East Germany during the Communist government period when the Stasi kept a file on everyone. I hope not.