June 10, 2013
Whistleblowing in the Name of the Constitution
Edward Snowden may go down inhistory as one of this nation’s most
important whistleblowers. He is certainly one of the bravest. The
29-year-old former technical assistant to the CIA and employee of a
defense intelligence contractor has admitted to disclosing top secret
documents about the National Security Agency’s massive violation of the
privacy of law-abiding citizens.
Like Daniel Ellsberg, who disclosed the Pentagon Papers, Snowden is a man of principle. “The government has granted itself power it is not entitled to,” he told interviewers. “There is no public oversight. The result is that [NSA employees] have the latitude to go further than they are allowed to.” For example, he said, he could have accessed anyone’s e-mail, including the president’s.
This is not the first time that the American people have learned that their intelligence agencies are out of control. I revealed the military’s surveillance of the civil rights and anti-war movements in 1970. Bob Woodward and Carl Bernstein of the Washigton Post disclosed the Watergate burglary by White House operatives, which led Congress to created two select committees to investigate the entire intelligence community.
Among other things, the committees discovered that the National Security Agency had a huge watchlist of civil right and anti-war protesters whose phone calls it was intercepting. The FBI had bugged the hotel rooms of Martin Luther King and tried to blackmail him into committing suicide rather than accept the Nobel Peace Prize. The CIA had tried to hire the Mafia to kill Fidel Castro. President Richard M. Nixon used the Internal Revenue Service to audit the taxes of his political enemies. His aides tried to destroy Daniel Ellsberg for leaking a history of the War in Vietnam, both by prosecuting him and by burglarizing his psychiatrist’s office for embarrassing information. The FBI opened enormous amounts of first-class mail of law-abiding citizens in direct violation of the criminal law.
Since then the technology has changed. The old Hoover vacuum cleaner has been redesigned for the digital age. It is now attached to the Internet, where it secretly collects the contents of everyone’s “audio, video, photographs, e-mails, documents, and connection logs” from Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple. It also siphons billions of telephone communications and Internet messages off the fiber optic cables that enter and pass through the United States. None of us has a reasonable expectation of privacy any more.
The Fourth Amendment used to require specific judicial authorization before the government could undertake a seizure. No longer, according to the secret FISA court. Secret seizures of “metadata” now precede individualized searches. Starting this fall, this information will be stored in a huge warehouse at Camp William, Utah, where it can be searched by computers whenever the military decides to re-label one of us a “person of interest,” like a reporter, a suspected leaker, or a Congressman it doesn’t like.
Senator Lindsey Graham (R-SC), claims not to be worried, but he should be. Before Watergate, FBI Director J. Edgar Hoover had 24 file cabinet drawers full of dirt on politicians just like Graham. Hoover let each politician know that the Bureau had found the compromising information while on some other search, but promised not to reveal it. Not surprising, Hoover’s abuses of power were not challenged until he died. New York Governor Eliot Spitzer, who used to prosecute Wall Street swindlers, was driven from office when data miners at the U.S. Treasury Department leaked news that he had laundering money to pay call girls. If General David Petraeus, the CIA director, could not trust the privacy of his own e-mails, what hope is there for the rest of us?
Instead of combating “Communism,” the government now claims to be protecting us from “terrorism.” Maybe. But what it is also protecting is its ability to invade anyone’s privacy and to use that power, if it wishes, for good or ill and without supervision. From his position at NSA, Snowden says, he and his colleagues could wiretap just about anyone.
Now that the story is out, President Barack Obama “welcomes” a “conversation” about them. Baloney. The function of secrecy is to prevent conversation, not welcome it. The Obama administration is a great supporter of privacy, but only for itself.
That’s why it prosecuted former NSA executive Thomas Drake for trying, first through channels, and later through the Baltimore Sun, to stop an earlier data mining project. Operation Trailblazer was not just a gross invasion of privacy; it squandered a billion dollars, mainly on private contractors, and never worked. But rather than give Drake a medal, the government shut the program down, classified reports confirming his claims, and prosecuted him under the Espionage Act. The trumped up charges failed; he had been careful not to disclose classified information. But the prosecution saddled him with $100,000 in legal unpaid bills. Snowden can expect similar treatment but, like Bradley Manning, might actually get more popular support.
The president insists that no one is listening to our phone calls, but Snowden said he could. Of course, we now know that President George W. Bush lied us into the War in Iraq, and falsely denied authorized a massive program of warrantless wiretapping, then a felony under the
Foreign Intelligence Surveillance Act. The NSA and FBI both denied their illegal wiretapping and mail opening programs in the 1950s and 1960s. In 2004, the Justice Department assured the Supreme Court that our government did not torture people, just a few hours before the torture photos from Abu Ghraib were broadcast on national television. Why should we believe such people now?
Secret government was curbed in the 1970s. President Nixon was driven from office. The NSA’s watchlist was shut down; the FBI was returned to law enforcement. Wiretapping was brought under the supervision of a Foreign Intelligence Surveillance Court. Assassinations were forbidden by executive order, and the campaign to punish leakers ended when White House aides were caught trying to suborn Ellsberg’s judge. Both Houses of Congress created intelligence committees to oversee our secret agencies.
Unfortunately, these efforts at oversight have largely failed. Judge Vinson’s order to Verizon proves beyond cavil that the secret FISA court is a rubber stamp for the indiscriminate seizure of all sorts of personal records. President Obama would have us believe that all members of Congress have been properly briefed, but even Dianne Feinstein (D-Cal.), chair of the Senate Intelligence Committee, admits that she does not know how the data being siphoned off fiber optic cables and out the side doors of Internet servers is actually being used. Classified briefings, of course, are the perfect way to silence critics. Once briefed, however vaguely, committee members are bound to secrecy. They can’t talk about what they learned, even with members of their own staff.
Seventy percent of the federal government’s intelligence budget now goes to private contractors. Far from overseeing the agencies, members of Congress court them, hoping to obtain business for companies that contribute generously to their campaigns. House Intelligence Committee member Randy “Duke” Cunningham and CIA Executive Director Kyle Foggo both went to prison for illegally steering government contracts to the same defense contractor. Senator Feinstein was embarrassed in 2009 when one of her fundraisers invited fellow lobbyists to lunch with her and boasted — in writing, on the invitation — that the intelligence committee’s work would be “served up as the first course.”
Americans can no longer trust the President, Congress, or the courts to protect them, or the reporters, whistleblowers, and politicians on whom our democracy relies. Our government has been massively compromised by campaign contributions and executive secrecy.
At this stage, the only remedy is for more employees of the NSA, CIA, and FBI to undertake Thomas Drake’s kind of whistleblowing. This is what Edward Snowden has done: “I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest. There are all sorts of documents that would have made a big impact that I didn’t turn over, because harming people isn’t my goal. Transparency is.”
No doubt the Obama administration will come after Snowden, as it did Drake. If it is going to defend our corrupt system of secrecy, it has to. But if it does, it will further discredit itself, again proving Justice Louis Brandeis’s dictum that, in politics, “sunlight is the best disinfectant.”
Christopher H. Pyle teaches constitutional law and civil liberties at Mount Holyoke College. He is the author of Military Surveillance of Civilian Politics and Getting Away with Torture.
In 1970, he disclosed the U.S. military’s surveillance of civilian
politics and worked as a consultant to three Congressional committees,
including the Church Committee. Like Daniel Ellsberg, who disclosed the Pentagon Papers, Snowden is a man of principle. “The government has granted itself power it is not entitled to,” he told interviewers. “There is no public oversight. The result is that [NSA employees] have the latitude to go further than they are allowed to.” For example, he said, he could have accessed anyone’s e-mail, including the president’s.
This is not the first time that the American people have learned that their intelligence agencies are out of control. I revealed the military’s surveillance of the civil rights and anti-war movements in 1970. Bob Woodward and Carl Bernstein of the Washigton Post disclosed the Watergate burglary by White House operatives, which led Congress to created two select committees to investigate the entire intelligence community.
Among other things, the committees discovered that the National Security Agency had a huge watchlist of civil right and anti-war protesters whose phone calls it was intercepting. The FBI had bugged the hotel rooms of Martin Luther King and tried to blackmail him into committing suicide rather than accept the Nobel Peace Prize. The CIA had tried to hire the Mafia to kill Fidel Castro. President Richard M. Nixon used the Internal Revenue Service to audit the taxes of his political enemies. His aides tried to destroy Daniel Ellsberg for leaking a history of the War in Vietnam, both by prosecuting him and by burglarizing his psychiatrist’s office for embarrassing information. The FBI opened enormous amounts of first-class mail of law-abiding citizens in direct violation of the criminal law.
Since then the technology has changed. The old Hoover vacuum cleaner has been redesigned for the digital age. It is now attached to the Internet, where it secretly collects the contents of everyone’s “audio, video, photographs, e-mails, documents, and connection logs” from Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple. It also siphons billions of telephone communications and Internet messages off the fiber optic cables that enter and pass through the United States. None of us has a reasonable expectation of privacy any more.
The Fourth Amendment used to require specific judicial authorization before the government could undertake a seizure. No longer, according to the secret FISA court. Secret seizures of “metadata” now precede individualized searches. Starting this fall, this information will be stored in a huge warehouse at Camp William, Utah, where it can be searched by computers whenever the military decides to re-label one of us a “person of interest,” like a reporter, a suspected leaker, or a Congressman it doesn’t like.
Senator Lindsey Graham (R-SC), claims not to be worried, but he should be. Before Watergate, FBI Director J. Edgar Hoover had 24 file cabinet drawers full of dirt on politicians just like Graham. Hoover let each politician know that the Bureau had found the compromising information while on some other search, but promised not to reveal it. Not surprising, Hoover’s abuses of power were not challenged until he died. New York Governor Eliot Spitzer, who used to prosecute Wall Street swindlers, was driven from office when data miners at the U.S. Treasury Department leaked news that he had laundering money to pay call girls. If General David Petraeus, the CIA director, could not trust the privacy of his own e-mails, what hope is there for the rest of us?
Instead of combating “Communism,” the government now claims to be protecting us from “terrorism.” Maybe. But what it is also protecting is its ability to invade anyone’s privacy and to use that power, if it wishes, for good or ill and without supervision. From his position at NSA, Snowden says, he and his colleagues could wiretap just about anyone.
Now that the story is out, President Barack Obama “welcomes” a “conversation” about them. Baloney. The function of secrecy is to prevent conversation, not welcome it. The Obama administration is a great supporter of privacy, but only for itself.
That’s why it prosecuted former NSA executive Thomas Drake for trying, first through channels, and later through the Baltimore Sun, to stop an earlier data mining project. Operation Trailblazer was not just a gross invasion of privacy; it squandered a billion dollars, mainly on private contractors, and never worked. But rather than give Drake a medal, the government shut the program down, classified reports confirming his claims, and prosecuted him under the Espionage Act. The trumped up charges failed; he had been careful not to disclose classified information. But the prosecution saddled him with $100,000 in legal unpaid bills. Snowden can expect similar treatment but, like Bradley Manning, might actually get more popular support.
The president insists that no one is listening to our phone calls, but Snowden said he could. Of course, we now know that President George W. Bush lied us into the War in Iraq, and falsely denied authorized a massive program of warrantless wiretapping, then a felony under the
Foreign Intelligence Surveillance Act. The NSA and FBI both denied their illegal wiretapping and mail opening programs in the 1950s and 1960s. In 2004, the Justice Department assured the Supreme Court that our government did not torture people, just a few hours before the torture photos from Abu Ghraib were broadcast on national television. Why should we believe such people now?
Secret government was curbed in the 1970s. President Nixon was driven from office. The NSA’s watchlist was shut down; the FBI was returned to law enforcement. Wiretapping was brought under the supervision of a Foreign Intelligence Surveillance Court. Assassinations were forbidden by executive order, and the campaign to punish leakers ended when White House aides were caught trying to suborn Ellsberg’s judge. Both Houses of Congress created intelligence committees to oversee our secret agencies.
Unfortunately, these efforts at oversight have largely failed. Judge Vinson’s order to Verizon proves beyond cavil that the secret FISA court is a rubber stamp for the indiscriminate seizure of all sorts of personal records. President Obama would have us believe that all members of Congress have been properly briefed, but even Dianne Feinstein (D-Cal.), chair of the Senate Intelligence Committee, admits that she does not know how the data being siphoned off fiber optic cables and out the side doors of Internet servers is actually being used. Classified briefings, of course, are the perfect way to silence critics. Once briefed, however vaguely, committee members are bound to secrecy. They can’t talk about what they learned, even with members of their own staff.
Seventy percent of the federal government’s intelligence budget now goes to private contractors. Far from overseeing the agencies, members of Congress court them, hoping to obtain business for companies that contribute generously to their campaigns. House Intelligence Committee member Randy “Duke” Cunningham and CIA Executive Director Kyle Foggo both went to prison for illegally steering government contracts to the same defense contractor. Senator Feinstein was embarrassed in 2009 when one of her fundraisers invited fellow lobbyists to lunch with her and boasted — in writing, on the invitation — that the intelligence committee’s work would be “served up as the first course.”
Americans can no longer trust the President, Congress, or the courts to protect them, or the reporters, whistleblowers, and politicians on whom our democracy relies. Our government has been massively compromised by campaign contributions and executive secrecy.
At this stage, the only remedy is for more employees of the NSA, CIA, and FBI to undertake Thomas Drake’s kind of whistleblowing. This is what Edward Snowden has done: “I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest. There are all sorts of documents that would have made a big impact that I didn’t turn over, because harming people isn’t my goal. Transparency is.”
No doubt the Obama administration will come after Snowden, as it did Drake. If it is going to defend our corrupt system of secrecy, it has to. But if it does, it will further discredit itself, again proving Justice Louis Brandeis’s dictum that, in politics, “sunlight is the best disinfectant.”
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