“We believe
most Americans would be stunned to learn the details of how these secret court
opinions have interpreted…the Patriot Act. As we see it, there is now a
significant gap between what most Americans think the law allows and what the
government secretly claims the law allows. This is a problem, because it
is impossible to have an informed public debate about what the law should say
when the public doesn’t know what its government thinks the law says.”
– US Senators Ron Wyden and Mark Udall
The President, the head of the
National Security Agency (NSA), the Department of Justice, the House and Senate
Intelligence Committees, and the Judiciary, are intentionally keeping massive
amounts of information about surveillance of US and other people secret from
voters.
Additionally, some are, to say it
politely, not being factually accurate in what they are telling the
public. These inaccurate statements are either intentional lies meant to
mislead the public or they are evidence that the people who are supposed to be
in charge of oversight do not know what they are supposed to be
overseeing. The most recent revelations from the Washington Post,
by way of Edward Snowden, indicate the NSA breaks privacy rules or overstep its
legal authority thousands of times each year. Whether people are lying
or do not know what they are doing, either way, this is a significant
crisis. Here are thirteen examples.
1). The Government seizes and
searches all internet and text communications which enter or leave the US
On August 8, 2013, the New York
Times reported that the NSA secretly collects virtually all international email
and text communications which cross the US borders in or out. As the
ACLU says, “the NSA thinks it’s okay to intercept and then read Americans’
emails, so long as it does so really quickly. But that is not how the
Fourth Amendment works…the invasion of Americans’ privacy is real and immediate.”
2). The Government created and maintains secret
backdoor access into all databases in order to search for information on US
citizens
On August 9, 2013, The Guardian
revealed yet another Edward Snowden leaked document which points out “the
National Security Agency has a secret backdoor into its vast databases under a
legal authority enabling it to search for US citizens’ email and phone calls
without a warrant.” This is a new set of secrets about surveillance of
people in the US. This new policy of 2011 allows searching by US person
names and identifiers when the NSA is collecting data. The document
declares that analysts should not implement these queries until an oversight
process has been developed. No word on whether such a process was
developed or not.
3). The Government operates
a vast database which allows it to sift through millions of records on the
internet to show nearly everything a person does
Recent disclosures by Snowden and
Glenn Greenwald of The Guardian demonstrate the NSA operates a massive
surveillance program called XKeyscore. The surveillance program has
since been confirmed by other CIA officials. It allows the government to
enter a person’s name or other question into the program and sift through
oceans of data to produce everything there is on the internet by or about that
person or other search term.
4). The Government has a
special court which meets in secret to authorize access for the FBI and other
investigators to millions and millions of US phone, text, email and business
records
There is a special court of federal
judges which meets in secret to authorize the government to gather and review
millions and millions of phone and internet records. This court, called
the Foreign Intelligence Surveillance Court (FISA court), allows government
lawyers to come before them in secret, with no representatives of the public or
press or defense counsel allowed, to argue unopposed for more and more
surveillance. This is the court which, in just one of its thousands of
rulings, authorized the handing over of all call data created by Verizon within
the US and between the US and abroad to the Federal Bureau of
Investigation. The public would never have known about the massive
surveillance without the leaked documents from Snowden.
5). The Government keeps Top
Secret nearly all the decisions of the FISA court
Nearly all of the thousands of
decisions of the FISA court are themselves classified as top secret.
Though the public is not allowed to know what the decisions are, public records
do show how many times the government asked for surveillance authorization and
how many times they were denied. These show that in the last three
years, the government asked for authorization nearly 5000 times and they were
never denied. In its entire history, the FISA court has denied just 11
of 34,000 requests for surveillance.
As noted above, two US Senators
warned the Attorney General ‘We believe most Americans would be stunned to
learn the details of how these secret court opinions have interpreted section
215 of the Patriot Act. As we see it, there is now a significant gap
between what most Americans think the law allows and what the government
secretly claims the law allows. This is a problem, because it is
impossible to have an informed public debate about what the law should stay
when the public doesn’t know what its government thinks the law says.”
6). The Government is
fighting to keep Top Secret a key 2011 decision of the FISA court even after
the court itself said it can be made public
There is an 86 page 2011 top secret
opinion of the FISA court which declared some of the National Security Agency’s
surveillance programs unconstitutional. The Administration, through the
Department of Justice, refused to hand this over to the Electronic Frontier
Foundation which filed a public records request and a lawsuit to make this
public. First the government said it would hurt the FISA court to allow
this to be made public. Then the FISA court itself said it can be made
public. Despite this, the government is still fighting to keep it secret.
7). The Government uses
secret National Security Letters (NSL) issued by the FBI to seize tens of
thousands of records
With a NSL letter the FBI can
demand financial records from any institution from banks to casinos, all
telephone records, subscriber information, credit reports, employment
information, and all email records of the target as well as the email addresses
and screen names for anyone who has contacted that account. Those who
received the NSLs from the FBI are supposed to keep them secret. The
reason is supposed to be for foreign counterintelligence. There is no
requirement for court approval at all. So no requests have been
denied. The Patriot Act has made this much easier for the FBI.
According to Congressional records,
there have been over 50,000 of these FBI NSL requests in the last three years.
This does not count the numerous times where the FBI persuades the
disclosure of information without getting a NSL. Nor does it count FBI requests
made just to find out who an email account belongs to. These reported NSL
numbers also do not include the very high numbers of administrative subpoenas
issued by the FBI which only require approval of a member of the local US
Attorney’s office.
8). The National Security
Head was caught not telling the truth to Congress about the surveillance of
millions of US citizens
The Director of National
Intelligence, James Clapper, told US Senate on March 12 2013 that the NSA did
not wittingly collect information on millions of Americans. After the
Snowden Guardian disclosures, Clapper admitted to NBC that what he said to
Congress was the “least untruthful” reply he could think of. The
agency no longer denies that it collects the emails of American citizens.
In a recent white paper, the NSA now admits they do “collect telephony
metadata in bulk,” but they do not unconstitutionally “target” American
citizens.
9). The Government falsely
assured the US public in writing that privacy protections are significantly
stronger than they actually are and Senators who knew better were not allowed
to disclose the truth
Two US Senators wrote the NSA a
letter objecting to one “inaccurate statement” and another “somewhat misleading
statement” made by the NSA in their June 2013 public fact sheet about
surveillance. What are the inaccurate or misleading statements? The
public is not allowed to know because the Senators had to point out the details
in a secret classified section of their letter.
In the public part of their letter
they did say “In our judgment this inaccuracy is significant, as it portrays
protections for Americans’ privacy as being significantly stronger than they
actually are…” The Senators point out that the NSA public statement
assures people that communications of US citizens which are accidently acquired
are promptly destroyed unless it is evidence of a crime. However, the
Senators wrote that the NSA does in fact deliberately search the records of
American citizens and that the NSA has said repeatedly that it is not
reasonably possible to identify the number of people located in the US whose
communications have been reviewed under the authority of the FISA laws.
The NSA responded to these claims in an odd way. They did not say publicly
what the misleading or inaccurate statements were nor did they correct the
record, instead they just deleted the fact sheet from the NSA website.
10). The chief defender of
spying in the House of Representatives, the Chair of the oversight intelligence
subcommittee, did not tell the truth or maybe worse did not know the truth
about surveillance
Mike Rogers, Chair of the House
Permanent Intelligence Subcommittee, repeatedly told Congress and the public on
TV talk shows in July that there was no government surveillance of phone calls
or emails. “They do not record your e-mails…None of that was happening, none of
it – I mean, zero.” Later, Snowden and Glenn Greenwald of The Guardian
disclosed the NSA program called X-keyscore, which intercepts 1.7 billion
emails, phone calls and other types of communications each day. Now the
questions swirl about Rogers, whether he lied, or was lied to by those who
engaged in surveillance, or did not understand the programs he was supposed to
be providing oversight to.
11). The House intelligence
oversight committee repeatedly refused to provide basic surveillance
information to elected members of the House of Representatives, Republican and
Democrat
The House intelligence oversight
committee refused to allow any members of Congress outside the committee to see
a 2011 document that described the NSA mass phone record surveillance.
This has infuriated Republicans and Democrats who have tried to get basic
information to carry out their mandated oversight obligations.
Republican Representative Morgan
Griffith of Virginia wrote the House Committee on Intelligence on June 25,
2013, July 12, 2013, July 22, 2013, and July 23 2013 asking for basic
information on the authorization “allowing the NSA to continue collecting data
about Americans’ telephone calls.” He received no response to
those requests.
After asking for basic information
from the House Committee about the surveillance programs, Democrat Congressman
Alan Grayson was told the committee voted to deny his request on a voice
vote. When he followed up and asked for a copy of the recorded vote he
was told he could not get the information because the transcript of the
committee hearing was classified.
12). The paranoia about
secrecy of surveillance is so bad in the House of Representatives that an
elected member of Congress was threatened for passing around copies of the
Snowden disclosures which had been already printed in newspapers
worldwide
Representative Alan Grayson was
threatened with sanctions for passing around copies of the Snowden information
on the House floor, the same information published by The Guardian and many
other newspapers around the world.
13). The Senate oversight
committee refused to allow a dissenting Senator to publicly discuss his objections
to surveillance
When Senator Ron Wyden (D-OR) tried
to amend the surveillance laws to require court orders before the government
could gather communications of American citizens and to disclose how many
Americans have had their communications gathered, he lost in a secret 2012
hearing of the Senate Select Committee on Intelligence. He was then also
prohibited from publicly registering or explaining his opposition for weeks.
These attempts to keep massive
surveillance secrets from the public are aggravated by the constant efforts to
minimize the secrets and maximize untruths.
Most notably, despite all this
documented surveillance, on August 6, 2013, the President said on the Jay Leno
show “We don’t have a domestic spying program.” This is, to say it most
politely, not accurate. Some commentators think the government is
perversely tying itself in knots and twisting the real meaning of words with
flimsy legal arguments and irrational word games. Others say the
President is engaged in “Orwellian newspeak.” Finally, more than a few
say the President was not telling the truth.
Others who are defending the
surveillance may not actually know what is going on but think they do because
the government, like the President, is telling them there is nothing to worry
about. For example, Senator Diane Feinstein, Chair of Senate Intelligence
Committee, the congressional oversight committee which is to protect people
from unlawful spying, and another chief defender of surveillance, publicly
responded to Edward Snowden’s claims to have the ability to wiretap anyone if
he had their personal email by saying, “I am not a high-tech techie, but I have
been told that is not possible.” How that squares with revelations about
the Xkeyscore program is not known. She also stated her committee’s
position about protecting the privacy of people against government
surveillance, “We’re always open to change, but that does not mean there will
be any.”
Conclusion:
Thomas Paine said eternal vigilance
is the price of liberty.
President Obama just promised the
nation that he would set up an independent group of outside experts to “step
back and review our capabilities – particularly our surveillance technologies.”
Days later Obama appointed the
Director of National Intelligence James Clapper, the same person who has
admitted he did not tell Congress the truth about the program, to establish a
review group to assess whether surveillance is being done in a manner that
maintains the public trust. After an uproar about the fox guarding the
henhouse, the White House reversed itself and said Clapper will not choose the
members of the group after all.
Who these members will be has
not been made public as of the time this is written. Another secret? Stay vigilant!
