“Knowledge (of) the scale of our capability would raise public awareness generating unwelcome publicity for us and our political masters.” — Classified UK NSA document
“To approve such a program, the Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court’s orders. The Court no longer has such confidence.” — U.S. Foreign Intelligence Surveillance Court Order, p. 12, 3-9-2009
For those alarmed by the steady growth of lawless, violent and authoritarian U.S. Executive power for the last 50 years, the events of the past few months have been exciting. The emergence of a de facto coalition of progressives and conservatives opposing the National Defense Authorization Act law giving the Executive the right to unilaterally detain or execute American citizens without a trial, and NSA mass surveillance of phone and Internet data, has been unprecedented, and offers the first hope in 70 years that Executive power can be curbed
The most important development has been the public and congressional reaction to President Obama’s proposal to strike Syria. A huge majority of the American people opposed even a limited military action by the Executive Branch. Reading the polls, the President decided to seek congressional authorization for a limited military action. For the first time in living memory, Congress clearly opposed him. It is too soon to say what this will mean for the future, but the implications clearly extend beyond just this particular strike or President.
The main arena besides the Middle East where the issue of the Executive Branch vs. Congress and the American people will play out in coming months will concern attempts to limit not only Executive surveillance of innocent Americans, but its other assaults on the very foundation of democracy itself.
The fundamental issue involved amidst the ongoing cascade of revelations about NSA wrongdoing is this: what must be done to roll back the Executive Branch’s creation of a surveillance state, which is just one more major economic crisis or 9/11—as even centrists like Bob Woodward and Tom Friedman warn—from becoming a police-state.
Most of the focus until now has been on trying to absorb the dimensions of the surveillance state we have suddenly learned we are living in since June 6. But it is now time to focus on the actions needed to end its assaults on democracy.
This is not a simple question, either politically or technically. Politically, it is impossible to envision ending the surveillance state without a broad left-right coalition both in Congress and among the public devoted to doing so. But it will be difficult to maintain a coalition of progressives and Tea Partiers, liberals and conservatives, who neither trust nor respect one another—particularly when fought by an Executive that will hit back against attempts to control it with everything it has.
The technical questions are even trickier. How does Congress write and pass laws to prevent Executive Agencies from undertaking surveillance and population control measures when, to paraphrase Congressman Keith Ellison, “Congress doesn’t know what it doesn’t know”? How can Congress control Executive wrongdoing when Executive officials invoke the mantra of national security to avoid providing it with information?
Had Edward Snowden not risked life imprisonment or worse to reveal that the U.S. Executive Branch has created a surveillance state, we would still know virtually nothing about it. The ranking Senate and House Intelligence committee chairs, Dianne Feinstein and Mike Rogers, would still be covering up Executive wrongdoing, and even those members angered at its criminality would still be muzzled from saying anything. The Judiciary would still not only be rubberstamping Executive actions, but expanding Executive Branch power. The mass media would still be routinely conveying its denials of wrongdoing to the American people whenever the issue arose.
At present, when the heads of the Senate or House Intelligence Committees assure us that they are overseeing the Executive, what they mean is that they are dutifully repeating Executive talking points on documents provided them with the words “top secret” stamped on them, but only consisting of what Executive agencies want them to know. They have no means of independent oversight, which means they have no meaningful oversight. And the judiciary has not only acknowledged this, but said they no longer have “confidence” in the Executive.
If even the secret FISA Court no longer has confidence in the Executive, neither can the rest of us. During the 1960s, the FBI regularly used its secret intelligence to blackmail and threaten not only activists but politicians, presidents and Martin Luther King, Jr. As Internet security expert C.J. Radford has written, “the issue is what happens if this data, and these capabilities, fall into the wrong hands. A malicious government employee, a change in government, court rulings, regulations or leadership could all open this information, and these capabilities, up to cross agency analysis, open use, or criminal activity.”
That is, not only can this information be misused by government employees, but private sector companies, criminals and foreign governments as well. With the NSA spending 70% of its funding on contracts with private sector firms, which are even more corruptible than government agencies, this is a matter of urgent concern.
It is the height of naiveté to have any confidence whatsoever in the current system. It is clear that the heart of any serious attempt to create democracy in this nation must involve not only stopping such obvious assaults on democracy as the mass collection of phone and Internet records of innocent Americans, but a fundamental restructuring of the relationship between our three branches of government.
Since neither the courts nor Congress can any longer have confidence in NSA assertions, they clearly must give themselves the capacity—including experts with full access to raw data, answerable to them and not the Executive—to fulfill their constitutionally required mandate to check and balance Executive power.
This restructuring of relationships between the three branches of government must also profoundly alter the Executive’s ability to hide its wrongdoing from the American people by classifying trillions of pages annually on the false grounds of “national security.” In an article entitled “Ex-MI6 Deputy Chief Plays Down Damage Caused By Snowden Leaks,” for example, the Guardian reported that Nigel Inkster said that “Al-Qaida leaders in the tribal areas of Pakistan had been ‘in the dark’ for some time… referring to counter measures they had taken to avoid detection by western intelligence agencies. Other ‘serious actors’ were equally aware of the risks to their own security from NSA and GCHQ eavesdroppers, he said.”
The Executive Branch, as does the U.K.’s NSA as quoted above, keeps its secrets from the American people primarily to avoid the “political embarrassment” of having its fraud, waste, abuse and illegality revealed.
As a Brennan Center For Justice study on classification has noted, “Over-classification is rampant, and nearly everyone who works with classified information recognizes the problem. In 1993, Senator John Kerry, who reviewed classified documents while chairing the Senate Select Committee on POW/MIA Affairs, commented, ‘I do not think more than a hundred, or a couple of hundred, pages of the thousands of [classified] documents we looked at had any current classification importance.’ The classification system must be reformed if we are to preserve the critical role that transparent government plays in a functioning democracy.”
President Obama cannot seriously talk of “transparency” without supporting efforts to reduce present classification of government documents by the 90% that experts like Secretary of State John Kerry and Pentagon whistleblower Daniel Ellsberg estimate would in no way harm national security.
The following steps are needed.
The Bottom Line: No Bulk Collection Of Americans’ Phone And Internet Metadata, Destroy Files That Exist
Obama on August 8 announced a response to Snowden’s revelations: “First, I will work with Congress to the following measures in pursue appropriate reforms to Section 215 of the Patriot Act, the program that collects telephone records. Second, we can take steps to make sure civil liberties concerns have an independent voice in appropriate cases by ensuring that the government’s position is challenged by an adversary (before) the Foreign Intelligence Surveillance Court …
Number three, the Department of Justice will make public the legal rationale for the government’s collection activities under Section 215 of the Patriot Act … Fourth, we’re forming a high level group of outside experts to review our entire intelligence and communications technologies.”
These were clearly illusory reforms, as the Electronic Frontier Foundation noted, that would continue mass surveillance of Americans. First, the Executive would continue to only tell Congress and the Judiciary what it felt was “appropriate“for them to know—including the FISC “adversary”; second, the “legal rationales” for Executive wrongdoing are just that: rationales which no one concerned about Executive surveillance can take seriously; and thirdly four of the five “outside experts” Obama wound up appointing are all deeply implicated in Executive wrongdoing, including former CIA Deputy Director Michael Morrell, and they are to report to director of National Intelligence James Clapper, a key architect of the surveillance state.
Predictably, the first meeting of this Potemkin Panel did not even discuss NSA surveillance of innocent Americans and only confined itself to private sector concerns. Open Technology Institute director Sascha Meinrath, who attended the meeting, declared that “My fear is it’s a simulacrum of meaningful reform … Its function is to bleed off pressure, without getting to the meaningful reform.”
A N.Y. Times editorial accurately noted that “President Obama proposed a series of measures on Friday that only tinker around the edges of the nation’s abusive surveillance programs. It is the existence of these programs that is the problem, not whether they are modestly transparent. As long as the N.S.A. believes it has the right to collect records of every phone call … then none of the promises to stay within the law will mean a thing.”
Mr. Obama’s “reforms” thus still envision continued Executive collection of hundreds of millions of Americans’ phone and Internet records. Believers in democracy must set their own “red line” against surveillance of innocent Americans.
A line must be drawn somewhere. Once we allow the Executive to store all our emails and Internet communications for all time, why not allow them to read them if they decide it might protect somebody, somewhere, sometime? Why should a court get involved? Don’t we trust them? As Edward Snowden has said, “the Internet is on principle a system that you reveal yourself to in order to fully enjoy, which differentiates it from, say, a music player. It is a TV that watches you.”
But this does not “protect” us nearly as efficiently as would a real TV or flat screen equipped with a transponder allowing them to watch us whenever they wish. Where do we draw the line?
Mr. Obama and present congressional leaders’ typically honeyed words mean nothing absent a complete halt to gathering information on innocent Americans. Republican House Judiciary Chair Robert Goodlatte, for example, recently declared “I am committed to … our nation’s intelligence collection programs includ(ing) robust oversight, additional transparency, and protections for Americans’ civil liberties.” But at the same time he stated that “eliminating this program altogether without careful deliberation would not reflect our duty, under article I of the constitution, to provide for the common defense,” and had opposed the Conyers-Amash amendment in July that would have ended NSA surveillance of innocent Americans.
The “reforms” proposed by Goodlatte and other Republican House leaders are clearly meant to head off any significant reform of NSA mass surveillance. A serious attempt to bring democracy to America must have the following bottom line: no mass surveillance of any kind of Americans about whom there is no evidence of wrongdoing. None.
The first and necessary step toward creating a “functioning democracy” in America is for both the House and Senate to pass the Conyers-Amash amendment forbidding NSA mass collection of phone and Internet American records of innocent Americans.
Institute Genuine Congressional Oversight
At the moment, congressional oversight of the Executive has become a pathetic joke. The Senate and House Intelligence Committees have clearly failed in their constitutional obligation to provide “checks and balances” on the Executive. Three major reforms are needed.
A. Elect Committees Who Oversee Not Promote Executive Wrongdoing, Beginning By Replacing Senator Dianne Feinstein And Rep. Mike Rogers.
The present heads of the House and Senate Intelligence Committees, Dianne Feinstein and Mike Rogers, and ranking minority party members Senator Saxby Chambliss and “Dutch” Ruppersberger, have merely served as spokespeople for the Executive, delivering a long series of deceptive “talking points” provided by the NSA meant to excuse rather than correct Executive abuses.
Mr. Rogers, a former Executive Branch FBI agent, has particularly distinguished himself by insulting the intelligence of both his fellow House members and the American people.
He has declared on Meet the Press that Snowden “went outside all of the whistleblower venues that were available to anyone in this government, including people who have classified information. We get two or three visits from whistleblowers every single week in the committee, and we—we investigate every one thoroughly. He didn’t choose that route.”
This is absurd. Mr. Rogers already knew, and had done nothing about, Snowden’s concern that the Executive was collecting Americans’ phone and Internet records. There was obviously no point for Snowden to go to Rogers, and the latter is clearly insulting the intelligence of the American people in continuing to make this crude claim.
Rogers’ claim that other whistleblowers have avenues within government to correct Executive abuses is also untrue. The New Yorker has reported on how although NSA whistleblower Thomas Drake did go through official channels, nothing was done. Washington Post columnist Dana Milbank recently reported how DOD whistleblower Gina Gray was fired for seeking to correct DOD mismanagement at the Arlington National Cemetery, after using internal channels.
Milbank also commented “President Obama, in his news conference this month, said that Edward Snowden was wrong to go public with revelations about secret surveillance programs because ‘there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.’ This is a common refrain among administration officials and some lawmakers. But it’s a load of nonsense. Ask Gina Gray.”
Among their many other major failures of NSA oversight:
—Both Feinstein and Rogers claimed on ABC News on June 9 that NSA surveillance had been responsible for the capture of NY Subway Bomber Najibullah Zazi and Mumbai bomber David Headley. But two days later, in a story titled”NSA Surveillance Played Little Role In Foiling Terror Plots, Experts Say,” the Guardian revealed that both men had been captured through surveillance in the UK, with no NSA input.
—Mr. Rogers first claimed that Snowden should be charged with espionage because his revelations had led to “changes in the way they communicate that we can already see being made by the folks who wish to do us harm.” He then supported the administration’s claim a few weeks later that a worldwide travelers’ alert was based on the NSA overhearing the two top Al Qaeda “bad guys” —Ayman al-Zawari and Yemen’s Wuhayashi—communicate with each other. Both statements cannot be true, and perhaps neither were. Furthermore, if true, releasing the information about this specific phone call was clearly a breach of national security, as it tipped off the two top Al Qaeda leaders that their phone calls were being overheard. If true, Rogers clearly would have committed precisely the act of revealing “sources and methods” that he claimed justified the charge of treason for Mr. Snowden.
—Both Feinstein and Rogers, like Obama, repeatedly claimed the NSA was not conducting illegal surveillance. Even after the Washington Post published its story on “thousands” of abuses involving tens of thousands of individual cases, Feinstein declared that “as I have said previously, the committee has never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes,” and Roger said that he had seen he had seen “no intentional and willful violation of the law.”
The paper also reported that “Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) did not receive a copy of the 2012 audit until the Post asked her staff about it.”
Feinstein then changed her story, claiming that she had received the report under a different name. But the point was undeniable: she has clearly failed her oversight duties, not even bothering to read whatever study she saw revealing NSA abuses, let alone doing anything about them or even informing her own constituents of them.
—Numerous members have accused the House Intelligence Committee of withholding information from them. As the Guardian reported on August 14, “Morgan Griffith, a Republican who represents Virginia’s ninth district, has been critical of the committee for blocking attempts by non-members to obtain information about classified programs. On August 4, the Guardian published a series of letters he had written to the committee requesting more details, all of which had gone unanswered.
Congress needs to elect Members of the Senate and House Intelligence committees who see their job as checking and balancing Executive power, not merely serving as spokespeople for it.
B. Indict Executive Branch Officials When They Commit Perjury
Executive Branch officials not only regularly lie to but hide information from Congress, most notably recently when director of National Intelligence James Clapper denied in open session that the NSA was collecting data on American citizens, and then compounded his lie a few days later by claiming he had misunderstood the question. Senator Wyden quickly revealed that he had sent the question over to him the day before the hearing. NSA chief Keith Alexander has also repeatedly lied to Congress. The N.Y. Daily News reported on a June 18 House Intelligence Committee hearing, for example, that ”NSA Director Gen. Keith Alexander testified his agency’s programs are subject to strict oversight.” Alexander also testified at the same hearing that NSA surveillance had caught the N.Y.C. Subway and Mumbai bombers, another lie revealed by the Guardian as noted above.
But though senators and representatives know they are being lied to by Executive Branch officials, they have not had the courage to indict them for perjury when they do so. Congress has allowed director Clapper and General Alexander to remain in their posts after knowing beyond any doubt that they have committed perjury before it. This lack of courage must end. The only way to stop Executive officials from lying to Congress and the American people is for Congress to swear them in and punish them when they are caught lying, at very least by dismissal from their posts, but ideally by criminal prosecution.
C. Give Congress the Right to Declassify Data Indicating Waste, Fraud, Abuse and Crimes By the Executive
One of the most shocking revelations concerning congressional oversight is that even when a member of the Senate Intelligence Committee like Sen. Wyden learns that the Executive is committing crimes against the American people, that senator is muzzled from revealing it to them. Although the senator could release this information on the floor of the Senate without fear of prison, he or she fears being attacked for jeopardizing national security, being removed from the Intelligence Committee, censure by colleagues, and/or losing the next election.
It is clearly time for the legislative representatives of people, not unelected members of the Executive, to be given the legal and moral right to declassify and make public Executive actions that they believe are illegal or immoral.
Someone must decide, after all, whether a given body of information should be kept secret from the American people. In a democracy, those who make this decision should represent the people of the nation, not gigantic, secret bureaucracies which regularly deceive the people and are accountable to no one but themselves.
D. Congress Must Have The Capacity To Genuinely Oversee Executive Agencies
Members of the Senate and House Intelligence Committees must assert their right to be treated as genuine representatives of the governed. To begin with, they must demand the right to take notes on classified material the Executive shows them and to have properly cleared staff members accompany or represent them at briefings. They must punish NSA staff members who play Orwellian word games with them, refusing to answer questions honestly unless the exact words are used as the NSA defines them, which they keep secret.
Members must also insist that they be given all information on NSA activities. At present, the NSA withholds significant information even from Senate and House Intelligence Committee members. Legislators must severely punish Executive Branch officials who continue to hide significant information from them.
Most importantly, however, Congress cannot exercise constitutionally-required oversight of Executive Branch activities unless they can independently investigate them. The Intelligence Committees, like the FISA courts (please see below), must hire significantly more staff, with the knowledge, power and mandate to oversee Executive Branch military, intelligence and police activities that potentially threaten the democratic rights of the American people.
Give the Judiciary the Capacity to Genuinely Oversee Executive Agencies Like the NSA
Meaningful judicial oversight of Executive Branch officials is the other fundamental pillar of the constitutionally-mandated system of checks and balances upon which democracy rests.
President Obama lied once again when he stated at a June 7 press conference that “federal judges are overseeing the entire program throughout.”
In fact, the Judiciary exercises no meaningful oversight of the Executive whatsoever. The FISA court established to oversee NSA surveillance, for example, is not allowed to judge specific cases and has only been given the right to approve the guidelines the NSA claims it is following—although the court does not know if it is in fact following them. Even more importantly, the Executive has asserted its right to withhold any information it wishes from the Judiciary, for example prosecuting individuals but not providing the court evidence of their wrongdoing on the grounds of “national security.”
In response to this absence of judicial oversight, President Obama has promised simply to allow an “adversary” to argue against the NSA during a FISA court hearing. But since the Executive will continue to withhold any information it feels might harm its case on the grounds of “national security,” this “reform” is meaningless.
FISA Court Head Judge Reggie Walton, a conservative who has betrayed his mandate by expanding Executive power rather than overseeing it, has revealed the heart of the problem with proper judicial oversight when he stated that, “The FISC (Federal Intelligence Surveillance Court) is forced to rely upon the accuracy of the information that is provided to the Court. The FISC does not have the capacity to investigate issues of noncompliance.”
There is thus clearly one key step that must be taken if the Judiciary is to be given meaningful oversight over the Executive: it must be given the capacity, knowledge and information to make an informed judgment of Executive compliance with the law.
If the FISC is to provide genuine oversight over the NSA, it must be given a vastly expanded budget that allows it to hire hundreds if not thousands of its own intelligence experts, with the proper clearances and access to information.
And where might funds for the judiciary to hire its own analysts come from? As Dana Priest and William Arkin point out in Top Secret America, hundreds of billions of dollars have been given to the NSA and other intelligence agencies to expand their activities, to the point, they say, where “its entirety, as Pentagon intelligence chief James Clapper admitted, (is) visible only to God.” (p. 86)
The intelligence community is clearly far too large and is wasting huge amounts of money, beginning with its storing of all phone and Internet records of American citizens. There is no rational relationship between the vast amount of money it spends and its results. Ending its surveillance of Americans will be an obvious first place to cut their budgets, and a portion of the savings should spent to give both the Legislative and Judicial branches the “capacity” to evaluate Executive Branch police and intelligence activities.
Provide Strong Whistleblower Protection
Kenneth Roth, Human Rights Watch executive director, has noted that “the whistleblower protection provided to government employees who expose evidence of wrongdoing does not extend to those who disclose what is deemed national security information. Whistleblowers facing prosecution can’t even defend themselves by showing that their disclosures caused no harm and promoted the public interest. Wrongdoing involving this information is supposed to be revealed only to an agency’s inspector general or to the congressional intelligence committees. Yet government employees who tried to use these procedures to complain about NSA overreaching faced retaliation and even prosecution — which might help explain why Snowden skipped these mechanisms and went directly to the media. The problem is aggravated by the government’s temptation to protect information that is simply embarrassing or politically fraught rather than truly a matter of national security.”
Genuine whistleblower protection would have two aspects. First, internal: ensuring that whistleblowers who do go through official channels have an independent body evaluate their charges, and provide them with full protection from punishment by superiors whose wrongdoing they have revealed.
Second, external: The Executive Branch must end its prosecution of whistleblowers who reveal classified information to the media or public; or, in those rare instances where there is a case for actual damage having been done to “national security,” the whistleblower must receive a fair trial by a jury that is given access to the information in question so that it can determine to what extent national security was harmed, and that takes into account the whistleblower’s motivation.
Restructure the Present System of Classification
Executive over-classification of information lies at the heart of its many threats to democracy. It classifies enormous amounts of information that could be of no conceivable use to our enemies, e.g. the equivalent of 20 million filing cabinets one agency classified in one 18-month period alone. Secrecy is by its very nature undemocratic. Executive classification of documents is also at the very heart of its threats to journalists and whistleblowers seeking to uncover Executive abuses.
Daniel Ellsberg has written an important article on how and why the Executive over-classifies information:
“One of the most experienced security authorities in the Pentagon, William F. Florence, who had drafted many of the Department of Defense regulations on classification, testified as an expert witness in Congressional hearings and in my trial that at most 5% of classified material actually satisfied the official criteria of potential relevance to national security (which he had played a major role in formulating) at the moment of original classification; and that perhaps 1/2 of 1% continued to justify protection after two or three years.”
If 95% of what is classified would not help our enemies, why does it remain classified? Part of the answer is that if it was revealed it would embarrass Executive Branch officials, and/or reveal waste, fraud, abuse and illegal acts that could lead to calls to cut their budgets, their dismissal, and/or prosecution.
As Dana Priest and Bill Arkin also note in Top Secret America, a top-secret classification is a “passport to prosperity for life.” It provides well-paying jobs and its holders are far less likely to face unemployment than those in the private sector. (p. 158)
Ellsberg also tellingly explores the psychological dimensions of the classification system:
“I suggest that there are psycho-social aspects (that) apply to ‘secret societies’ ranging from the Mafia or associations like the Masons to the CIA. It is a mark of worth, of membership in a valued group, possession of a valuable identity. It is a sign of being trusted by other members of the prestigious group: a token of being perceived by them as trustworthy, worthy of membership, of being ‘one of them,’ a ‘brother’ or ‘member of the family.’ Not only the membership in the group, but the specific acceptance of one’s loyalty — to the group, to its purposes, to the other members, and its secrets— conveys and expresses a new, prestigious status, a positive identity, a source of self-respect and pride and a basis for the respect and deference of others.”
While members of the Executive Branch thus have powerful practical, material and psychological motivations for hiding vast amounts of information from the American people that have nothing to do with national security, the American people have a correspondingly strong interest in preventing them from doing so any longer.
Ellsberg ends his article with a list of steps needed to curb Executive abuses of the classification system. They include: reducing the number of documents that are classified by over 90%, and keeping those that remain classified for no more than three years; at most administrative penalties not criminal prosecutions for leaks not involving communications intelligence, nuclear weapons data and identities of clandestine agents, and not even administrative sanctions for Executive Branch whistleblowers giving information to appropriate Members of Congress; effective whistleblower protection to all federal employees; vastly beefed up Freedom of Information Act processes; limiting the “States Secret privilege” allowing Executive officials to withhold information from even the judiciary; including in all secrecy agreements a clause that states that nothing in the agreement permits them give false or misleading testimony to Congress or the Judiciary; required briefing of all federal employees, military officers and members of Congress that the Oath of Office they all take to “support and defend the Constitution of the United States” requires them to disobey illegal orders.
Conclusion: A Non-Violent Call to Arms
The unprecedented coalition of liberals/progressives and conservatives/Tea Partiers which on July 24 almost passed a bill forbidding NSA spying on innocent Americans has offered the only hope that the U.S. Executive Branch’s danger to democracy can be challenged.
Executive power is so great that a major moral and political struggle will be necessary to bring it under meaningful democratic control. Only a major “Coalition for Freedom” inside Congress and on the streets of America can prevent it from choking off what remains of democracy. Is democracy worth fighting for? Only if millions of us decide it is will America become a functioning democracy.
Fred Branfman‘s writing has been published in the New York Times, the Washington Post, Harper’s, and many other publications. He is the author of Voices From the Plain of Jars, and can be reached at firstname.lastname@example.org.