Sunday, June 16, 2013

A Needed Debate On Surveillance Programs

   Edward Snowden lied about his salary: $122,000 per year, not $200,000. He probably puffed up some of the other things he has said over the past week. He violated federal law by disclosing classified information. And he forfeited the status of hero by fleeing the country instead of staying in the United States to face the consequences of his civil disobedience.
   Journalists, however, do not have the luxury of dealing only with sources who are pure of heart and noble in motive. Sources typically come with axes to grind and flaws to conceal. Snowden and his flaws are part of the story of the last two weeks, but the real story is what he has disclosed: government monitoring of telephone calls and e-mails wider than previously understood with supposed privacy safeguards even more secret than the surveillance itself.
    Snowden, who will turn 30 on Friday [June 21], unmasked himself last week as the source of the extraordinary disclosures about the super-secret surveillance by the super-secret National Security Agency (NSA) published a few days earlier in the British newspaper The Guardian and then in The Washington Post. The story of the leak is both mundane — Did this low-level NSA contractor really walk out of Booz Allen with all these documents on a thumb drive? — and tawdry. The computer geek high-school dropout apparently played blogger and Guardian contributor Glenn Greenwald and the Post alumnus Barton Gellman against each other to maximize the media splash.
     Putting Snowden to the side, here is what Americans know now that they did not know before, based in part on a three-page
by the Brennan Center for Justice:
     * The NSA has been secretly collecting phone records of millions of Americans since 2006 under orders issued by the super-secret Foreign Intelligence Surveillance Court (FISC) at the request of the FBI under the supposed authority of section 215 of the post-9/11 USA PATRIOT Act. Snowden disclosed one such court order issued to Verizon; Gellman reports in the Post today [June 16] that the court has issued similar orders for other large phone companies, including Bell South and AT&T.
     * The NSA has also obtained what the Brennan Center calls “unprecedented access” to data processed by nine leading U.S. internet companies, including Google, Facebook, Skype, and Apple, thanks to a computer network named PRISM. Stories about the program prompted James Clapper, the director of national intelligence, to put out an extraordinary three-page
fact sheet
that stresses that the program is aimed at foreign targets and is carried out under orders issued by the FISC.
     Clapper’s reassurances in the fact sheet and elsewhere must be considered in the light of what went before: his outright denial before the Senate Intelligence Committee in March that the NSA was collecting “any type of data at all on millions of Americans.” Clapper now calls his reply — “No, sir. Not wittingly” — “the least untruthful” answer he could have given. Sen. Ron Wyden, the Oregon Democrat and surveillance critic who posed the question, avoids calling the answer a lie. Instead, Wyden says merely that Americans are entitled to “straight answers to direct questions” about domestic surveillance.
     Wyden and fellow Democrat Mark Udall of Colorado have been raising alarms about the surveillance program for a while from their handcuffed positions as Intelligence Committee members bound by the committee’s secrecy rules. They are skunks at the garden party, however. Democratic Chair Dianne Feinstein of California and Republican vice chair Saxbe Chambliss of Georgia have taken to the microphones and news programs ever since the first disclosures to insist that the surveillance program is as effective and necessary as it is legal and constitutional.
     The efficacy of congressional oversight is further undermined by the number of senators and representatives who have professed surprise at the scope of the surveillance programs in the past two weeks. As one example, Rep. James Sensenbrenner, Republican of Wisconsin and one of the authors of the PATRIOT Act, says the telephone monitoring goes beyond what the law authorizes. “How can every call that every American makes or receives be relevant to a specific investigation?” Sensenbrenner asked in an op-ed in The Guardian.
     In Gellman’s telling, the validity of the orders turns on the Foreign Intelligence Surveillance Court’s pivotal decision on March 24, 2006, to expand the “business records” that the government could obtain if “relevant” to a particular terrorism investigation. “Henceforth, the court ruled, it would define the relevant business records as the entirety of a telephone company’s call database,” Gellman explains. The substance and the legal reasoning of that order, however, are secret — just like virtually everything the court does.
     That secrecy casts doubt on the claimed efficacy of judicial oversight of the surveillance programs. So too does the composition of the court. As I was first to point out, all but one of the court’s 11 members are Republican-appointed judges, selected in secret by Chief Justice John G. Roberts Jr., himself a Republican appointee who in eight terms has consistently voted for the government in national security cases. It is no surprise that the government has an all-but-perfect record before the court.
     President Obama says he welcomes the debate over the surveillance programs even as the Justice Department is studying what charges to bring against Snowden. Whatever happens to Snowden, that debate should continue.

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