There’s been a recurring motif under the Obama administration these past few years: things that once seemed like paranoid conspiracy theories have been turning out to be true.
Last year, it was revealed that the FBI ran a sweeping surveillance campaign targeting Occupy Wall Street. Then we saw leaked memos showing how the Department of Justice had spied on AP reporters and broadly re-interpreted the word "imminent" to justify drone strikes on American citizens. And now, documents obtained by The Guardian have confirmed long-held suspicions that the National Security Agency is conducting secret surveillance on millions of American wireless subscribers and accessing online communications on popular web services like Google, Facebook, and Skype.
The secret programs are just a few components in a complex surveillance regime that has been expanding ever since 9/11. One thing should now be absolutely clear: the US government’s national security apparatus is completely out of control, and Congress has been asleep at the wheel. But it's not just surveillance that's the problem — it's the administration's utter lack of transparency, and its unending obsession with prosecuting those responsible for exposing government abuses.
Welcome to the surveillance state
The tip of the iceberg was the leak of a top-secret order issued in April by a FISA surveillance court which compelled Verizon to provide the phone records and other "telephony metadata" of all its customers on an "ongoing, daily basis" to the NSA. The contents of conversations are not included in the collection, but the data byproducts of using Verizon's service are — that includes call records (participants, timestamps, call durations) as well as geolocation data produced when mobile phones connect to cell towers.
The order also bars the company from ever acknowledging its existence, and it seems clear that Verizon is not the only carrier which has been ordered to do so.
In 2006, Mark Klein exposed a secret room at an AT&T switching facility which routes network traffic to the NSA
I've written before on why unfettered access to metadata is just as dangerous as content — it allows the government to construct vivid portraits of peoples' associations, personal relationships, and physical movements. But what's amazing is that none of this is new. The leaked court order has simply confirmed what ex-NSA agents, civil rights and privacy groups, and even members of Congress have been warning about for years: that the US government has normalized the indiscriminate collection of millions of Americans' private communications records without any suspicion of wrongdoing.
FISA courts "did not deny any applications in whole, or in part" in 2011 or 2012
The leak isn't just notable for the information it reveals. It also highlights the extreme secrecy that enshrouds the national security apparatus and makes this kind of domestic spying possible. At the heart of that secrecy are FISA courts, the clandestine intelligence tribunals set up under the Foreign Intelligence Surveillance Act (FISA) which authorize government agency requests to conduct surveillance on both foreign targets and American citizens. Each request is handled by one of eleven Washington, DC, judges, whose rulings are highly classified and almost never published.
What we do know about FISA courts is that they're basically rubber-stamp courts: of the 1,789 surveillance requests issued in 2012, the courts "did not deny any applications in whole, or in part." The same thing happened to all 1,676 surveillance requests that came to the court in 2011. Simply put, FISA courts are just bureaucratic ornamentation with no external oversight apart from the occasional glance from members of select intelligence committees, who are forbidden from discussing anything they see.
"Americans would be stunned"
Ron Wyden (D-OR) and Mark Udall (D-CO), both members of the Senate's Intelligence Committee, have warned about this multiple times. In March of 2012, the duo wrote in a letter to Attorney General Eric Holder that "most Americans would be stunned to learn the details" of how surveillance law is actually applied.
They were referring to the controversial implementation of Section 215 of the Patriot Act, which allows surveillance orders to target anyone as long as it is "relevant to a national security investigation," and which the government has revealed is radically reinterpreted in secret by the FISA courts.
What that means is that there are effectively two versions of the law: the actual law as we know it, and a secret interpretation the FISA courts use to authorize surveillance. This is antithetical to a democratic system of government, which depends on the public being privy to how the law is applied.
"Seizing phone records of millions of innocent people is excessive and un-American."
As the Verizon order shows, the government is using its hidden interpretations of Section 215 to give carte blanche spying powers to the NSA on an ongoing basis. An anonymous White House official has defended the practice, calling the surveillance a "critical tool in protecting the nation from terrorist threats to the United States." But even the author of the Patriot Act, Jim Sensenbrenner, says he is "extremely troubled" by the way the law is being used, arguing yesterday that "seizing phone records of millions of innocent people is excessive and un-American."
What’s worse is that Congress has voted for this — multiple times. Last December, the FISA Amendments Act, which vastly expands the Patriot Act's surveillance powers, was authorized for the second time since 2008. Some senators — like Patrick Leahy (D-VT), Mark Udall (D-CO), and Rand Paul (R-KY) — proposed a number of modest amendments that would have given Congress increased oversight over the FISA courts.
All of those proposals were shot down, and the NSA's surveillance powers were extended until 2017.
What's more, no court has even had a chance to rule on whether the surveillance is constitutional. Last year, a congressional investigation revealed documents from the office of the Director of National Intelligence showing that NSA surveillance had violated the Constitution "on at least one occasion." But in cases such as Clapper v. Amnesty and Jewel v. NSA, the government has repeatedly asserted its "state secrets" privilege, blocking the lawsuits and thus preventing a constitutional ruling.
War on whistleblowers
It should be no surprise that almost everything that we currently know about government surveillance — from the FBI's use of unconstitutional National Security Letters to the NSA's ongoing surveillance of phone records — has come not from congressional vigilance or the courts, but from leakers and whistleblowers.
Leaks like the ones obtained by The Guardian this week don't just happen — they're a moral response that occurs under a climate of extreme state secrecy and overclassification. That's what makes it particularly disturbing that Obama’s response has been to prosecute more leakers under the Espionage Act than all previous administrations combined.
Obama in 2007, campaigning against Bush-era surveillance policies which he later adopted and expanded
That obsessive crackdown has targeted and tortured PFC Bradley Manning, currently facing life in prison for leaking documents that revealed the full extent of the US wars in Iraq and Afghanistan; it's the same crackdown that imprisoned former CIA analyst John Kiriakou for exposing the Bush-era torture program, while the person responsible for the actual torture got a free pass; it's what caused AP reporters to be caught in a surveillance dragnet during a Department of Justice investigation into a national security leak last year; and it's what led James Rosen, a Fox News journalist, to be labeled a "co-conspirator" during an DOJ investigation into the low-level leak of a CIA analysis on North Korean nuclear capabilities.
The root of the NSA surveillance problem isn't just about surveillance — it's a transparency problem, and like we saw with Verizon, we need leakers and whistleblowers to help solve it. Obama's defense has been to pass the blame on to Congress, and he's partly correct — they can help by repealing section 215 of the Patriot Act. But without a major policy reversal from the self-designated "Most Transparent Administration in History," a climate of secrecy persists where those on the inside must offset the law's lack of oversight.