All one has to do is read the Guardian’s story yesterday about the federal government’s massive, indiscriminate gathering of phone use data on millions of private customers of Verizon to realize that we have lost something we will never get back: personal communication privacy. The last paragraphs of the story make that clear.
Russell Tice, a retired National Security Agency intelligence analyst and whistleblower, said: “What is going on is much larger and more systemic than anything anyone has ever suspected or imagined.”
Although an anonymous senior Obama administration official said that “on its face” the court order revealed by the Guardian did not authorise the government to listen in on people’s phone calls, Tice now believes the (National Security Agency) has constructed such a capability.
“I figured it would probably be about 2015” before the NSA had “the computer capacity … to collect all digital communications word for word,” Tice said. “But I think I’m wrong. I think they have it right now.”
If that report left any doubt about how bad the situation is, a separate Guardian story announced:
The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian.
The NSA access is part of a previously undisclosed program called PRISM, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.
In its early days almost a decade ago, Californians Aware designed a number of novelty buttons expressing its various themes. One of them says, “WANT TO BE FREE AGAIN? Know more about the Powers That Be than they know about you.” That sentiment, wistful even then, was meant to accent the crucial importance of governmental transparency more than to raise alarms about Big Brother. But other buttons in the series address the privacy issue more directly:
“THE REAL DEAL: You can keep your Patriot Act if I can keep my Bill of Rights.”
“OUR BILL OF RIGHTS: After two centuries, no editors need apply.”
“FEELING SPIED ON? Assume they’re watching you and wink.”
It’s no longer funny. And secrecy has become the regnant culture of all branches. The executive’s Department of Homeland Security, Justice Department and the national security and intelligence “communities” have persuaded Congress to give them classification cover and authority for whatever incursions into civil liberties they feel are useful. The judiciary has been given a black box court under the Foreign Intelligence Surveillance Act (“Foreign Intelligence” being as misleading as “Homeland Security” or “Patriot”), one of whose functions is to approve such routine bypasses of the Bill of Rights as the NSA’s review of all Verizon (and presumably other) calls. And the complacent Congress uses its own secret processes to supposedly control spying, especially spying on Americans, and obviously overlooks far more than it oversees. Our own Senator Dianne Feinstein, chair of the Senate Intelligence Committee, explains patronizingly that the mass snooping is legal, has been for years, and “keeps us safe.” Which “us” does she mean? And safe from whom? We are not to inquire, much less discover.
The argument that all this is legal and has been—an immediate and constant drumbeat over the past two days, emanating from all kinds of authorities, from the President of the United States to the CEO of Google—misses two fundamental points. First, the original “law” was never duly and soberly deliberated. The foundational Patriot Act was drafted and passed, without public hearings, in about six weeks, probably never having been read by most lawmakers. Panic is not a pretty lubricant for legislation terminating liberties, and the passage of this bill could not have been a sweeter triumph for arch-terrorists who truly “hate our freedom,” as President Bush put it. Second, unlike most all other legal governmental operations, national security surveillance is monitored, invisibly, by only a relative handful of people: the Intelligence Committees of the two Houses of Congress, sitting in secret session, and the judges of the FISA court, sitting in secret proceedings. As for self-regulation, clearly even the chief law enforcement agency in the land feels free to ignore its own policy (for example, against using secret subpoenas to gather journalistic phone records) if that seems convenient. If a federal program in the areas of housing, transportation, education or other domestic initiatives or regulation is sensed as going awry, the courts can be appealed to for correction. But in any of the domestic surveillance activities reported by the Guardian, a lawsuit to restore control would be dismissed at the government’s insistence, relying on the state secrets doctrine.
So we have been coasting for years, relying on an executive branch whose wholesale scrutiny of our movements, contacts and actions has kept us as safe as a nation naked to its governors can be; relying on a Congress whose members seem convinced of their own exemption from exposure, having never experienced J. Edgar Hoover and his ways with dossiers; and relying on hidden courts that have apparently seldom seen a surveillance project they didn’t bless We need to take Thomas Drake’s view seriously, that there is no way back, unless we decide to take freedom itself as an overarching political imperative and make our otherwise greatest public policy commitments Number Two. The only hope for regaining even some of what has been lost would be to unite as many Americans as possible, left, right and center, in a meta-organization as energetic, tireless and aggressive as the NRA, to kick comfortable bottoms, take names and give a severe haircut to the Patriot Act and its fellow licenses of totalitarian assault on civil liberties. Tall order? The tallest. As with the lion and the lamb, it would mean followers of the ACLU and the Tea Party agreeing to coalesce, and the abortion policy movements, pro and con; and the gun lovers and haters; and the tree huggers and harvesters; and the convinced and skeptical about global warming, etc. All the activists for and against anything else would have to make their number ONE priority—”for the duration,” as the phrase went in WWII—the restitution of basic constitutional privacy with a corresponding transparency of the national security state.
The dual goals—reducing both surveillance and secrecy—reflect the yin and yang of our affliction. Governmental spying can metastasize only to the degree that it is secret, and secrecy can be preserved only by stripping whistleblowers, the enterprising press and other as yet undisclosed persons of interest of their normal expectations of privacy and due process. Small groups like Californians Aware are doing all they can to keep government open and expression free in this state, and can only remark on the national tragedy from time to time. But we, and one would hope most others, would labor overtime and collaboratively toward a national goal of transparency and respect for the Bill of Rights in how we pursue protection from physical harm. Ben Franklin said it first and best: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”