Couple weeks ago, I was on WEMF’s “Young Jurks” radio show, talking (as usual) a whole lotta seditious stuff about the surveillance state. The hosts asked me about the next wave of revelations from the Snowden documents. Glenn Greenwald, who is overseeing the order and timing of the disclosures, is publicly previewing that the next wave will consist of lists of Americans who have been targeted for NSA surveillance.
If that sounds like a Nixon-style “enemies list” to you, well, you’re not altogether wrong. Read on!
Already, in the year since the Snowden revelations began, the NSA has already had to move from insisting that it did not spy on Americans, to insisting that it did not target Americans and that any Americans’ communications captured while it was collecting information on foreign targets were “incidentally” collected and therefore did not require a warrant. In a few weeks, watch it move to insisting that it only spied on Americans when necessary and as insurance to prevent the next 9/11, and that the inherent powers of the Presidency meant that it could do so without a warrant.
Thing is, to the NSA’s defenders, that line is entirely credible. To people like Mike Rogers, working to cut the NSA’s budget or limit its activities in any way automatically undermines national security. It naturally follows that one of the biggest threats to national security is anyone in public life who opposes mass surveillance.
We have just seen the USA FREEDOM Act chewed apart in the House by secret negotiations, overseen by both Mike Rogerses (the House Intelligence Committee chair and the new head of the NSA), which had as their acknowledged aim “not disturbing the operational equities” of the NSA. Sure, Congress, pass any law you like, so long as it doesn’t actually constrain the surveillance state; don’t get above your station, d’ye hear?
At the same time, everyone discussing the topic, from the head of the Privacy and Civil Liberties Oversight Board to Judge Posner to the people composing guidance for Fusion Centers, seem to have the untroubled assumption that it would obviously be ridiculous to give anybody outside the deep state actual access to the contents of their surveillance files. It’s not ridiculous at all. It seems hard to figure out why we’re allowed to request the content of our FBI files, and request corrections to them, but not to material collected by the surveillance agencies under the Foreign Intelligence Surveillance Act. When the East German government fell in 1990, everyone was finally given the right to request their file and see what was in it. What was uncovered was a monstrous bureaucracy of informants collecting noncriminal minutiae, which is also pretty much what initial leaks of US Suspicious Activity Reports reveal. Only when we have the power to see and correct our surveillance files too, will it become politically impossible to continue mass surveillance. Without that vital corrective, the state can and will gather everything, even if there’s no immediate reason connected to a crime. Our surveillance state is as monomaniacal and uncritical about “terrorists” as the Stasi of yesteryear was about “counter-revolutionaries”, and the two terms mean about the same thing.
Most Congressmembers are still far too scared of being blamed for the next 9/11; Sen. Rand Paul talks about seeing the “fear in the eyes” of other Senators when he talks about reining in the surveillance state. In the context of weak to no regulation, why the hell wouldn’t the NSA target for surveillance people they consider kissing cousins to terrorists anyway? When it’s so clearly in their interests to do it, the onus falls on defenders of the surveillance state to explain what it is that would prevent them. It’s too much to expect, from an agency that collects LOVEINT, that any innate sense of professionalism will prevent it.
When the NSA argues that its programs have been approved by all three branches of government, what they actually mean is that they have the power to blackmail all three branches of government into letting them violate the Constitution. Russell Tice’s evidence from 2005 shows that they’re willing to do it; if Greenwald has the proof of the practices Tice revealed, it will open up a deep and important conversation about who is really in charge in the state.
The deep state was given back the power to blackmail consciously and intentionally, not as a result of a post-9/11 panic. It’s true that Congressmembers, most of whom are not familiar with the history of this, were stampeded into voting for the PATRIOT Act, and didn’t have the courage to resist. But the so-called “President’s Surveillance Program” predates 9/11, and its biggest advocates were people like Cheney and Addington, Nixon administration retreads who had been appalled at his impeachment and who possessed a nearly boundless view of presidential power. When 9/11 happened, it gave them the perfect opportunity to gain broader support and ratification for “taking the gloves off” of the intelligence agencies, who had in secret already been doing what they were asking for the authority to do.
What will undo the supremacy of the surveillance state? Much depends on how the disclosure is made, and what is disclosed. Let’s say, for example, that Senator Orrin Hatch of Utah, who serves on the Senate Judiciary Committee, turns out to have been a target of NSA surveillance. Without further information than that, all Senator Hatch needs to do is to dial up the outrage for a few days and insist that the NSA stops surveilling him personally. That might turn out much as happened with Chancellor Merkel of Germany: the NSA stops bugging his phone, and immediately starts bugging the phones of everyone one hop from him. Hatch gets to claim a victory, the NSA concedes a superficial point, and everything goes on much as it did before.
So (coming back to Greenwald), what I hope he has is not just the authorizations to target Orrin Hatch and others who have authority over the NSA, but the actual content on Orrin Hatch, and that he’s willing to release it. There should be an expectation that, at a bare minimum, any public figure in a position of authority over the NSA should have what the NSA has on them made public, so that the public knows that they are not making decisions shadowed by the threat of blackmail.