by Gerard Emershaw
President Obama’s January
17, 2014 speech
on NSA surveillance may cause some devoted progressives to claim that the
Commander-in-Chief has seen the light on civil liberties. However, anyone who
listened to the speech with his or her ears rather than a deaf progressive
heart understands how the President said nothing encouraging in terms of willingness
to fulfill his duty to defend the Constitution.
1. Isn’t spying on our enemies
different from spying on our citizens?
President
Obama pointed out that the United States
government has a long history of employing various types of surveillance in an
effort to keep the nation and its citizens safe:
At the dawn of
our Republic, a small, secret surveillance committee borne out of the “The Sons
of Liberty” was established in Boston.
And the group’s members included Paul Revere. At night, they would patrol the
streets, reporting back any signs that the British were preparing raids against
America’s early
Patriots. Throughout American history, intelligence has helped secure our
country and our freedoms. In the Civil War, Union balloon reconnaissance
tracked the size of Confederate armies by counting the number of campfires. In
World War II, code-breakers gave us insights into Japanese war plans, and when
Patton marched across Europe, intercepted communications
helped save the lives of his troops. After the war, the rise of the Iron
Curtain and nuclear weapons only increased the need for sustained intelligence
gathering. And so, in the early days of the Cold War, President Truman created
the National Security Agency, or NSA, to give us insights into the Soviet bloc,
and provide our leaders with information they needed to confront aggression and
avert catastrophe.
However, what
the President failed to note is that spying on the Confederacy, the Axis
Powers, and the Soviets were different than spying on American citizens with
the NSA through the bulk collection of metadata. No rational American would
criticize spying on dangerous enemy governments. The NSA and other American
intelligence agencies can spy on China,
Russia, and
even allies such as Germany.
These agencies can also spy on terrorist groups like Al Qaeda. But why do they
need to spy willy nilly on American citizens?
2. Don’t bring
up a cautionary tales if they don’t make you proceed with caution.
President
Obama discussed the Constitution, the checks and balances built into the
American form of government, totalitarianism, and past abuses by American
intelligence agencies:
Throughout this evolution, we benefited from both our
Constitution and our traditions of limited government. U.S.
intelligence agencies were anchored in a system of checks and balances—with
oversight from elected leaders, and protections for ordinary citizens.
Meanwhile, totalitarian states like East Germany
offered a cautionary tale of what could happen when vast, unchecked
surveillance turned citizens into informers, and persecuted people for what
they said in the privacy of their own homes.
In fact, even the United
States proved not to be immune to the abuse
of surveillance. And in the 1960s, government spied on civil rights leaders and
critics of the Vietnam War. And partly in response to these revelations,
additional laws were established in the 1970s to ensure that our intelligence
capabilities could not be misused against our citizens. In the long, twilight
struggle against Communism, we had been reminded that the very liberties that
we sought to preserve could not be sacrificed at the altar of national
security.
But
what is the point of bringing up cautionary tales if these tales do not make
you cautious? One of the most important checks against tyranny from the federal
government has been the Fourth Amendment, yet President Obama did not refer
specifically to it even once during his speech. He brought up Stasi East
Germany, but he failed to recognized that the NSA, FBI, and CIA are beginning
to resemble East Germany’s Stasi and that the Department of Homeland Security’s
“see something, say something” campaigns have attempted to turn Americans into
informers. The fact that the United States government has used its vast spying
apparatus against its own people on so many occasions—COINTELPRO, Operation CHAOS,
Nixon’s “Plumbers,”
Project Shamrock, Project MKUltra, Operation Northwoods,
etc.—should lead President Obama to realize how close the nation can come to
becoming a totalitarian surveillance state. It is one thing to say that “the very
liberties that we sought to preserve could not be sacrificed at the altar of
national security” and another thing entirely to mean it. Meaning it requires
being ever-vigilant in preserving natural rights regardless of what
threats—even if existential—the nation faces. Being truly aware of “cautionary
tales” such as Stasi East Germany
and the various violations of rights by American intelligence agencies which
the Church Committee
revealed in the 1970s means making it a priority to oversee these executive
agencies. President Obama has at most given lip service to this responsibility.
At worst he has cynically pretended to do it while in fact helping these
security agencies violate Constitutional rights.
3.
Neoconservative in Progressive’s clothing?
President
Obama sounded like Vice President Dick Cheney or some member of a 1990s neocon
think tank when he said:
If
the fall of the Soviet Union left America
without a competing superpower, emerging threats from terrorist groups, and the
proliferation of weapons of mass destruction placed new and in some ways more
complicated demands on our intelligence agencies. Globalization and the
Internet made these threats more acute, as technology erased borders and
empowered individuals to project great violence, as well as great good.
Terrorist threats are overblown.
Threats of the proliferation of weapons of mass destruction are also overblown.
Unlike something from Fox’s “24” or a novel by the late Tom Clancy, “suitcase
nukes” do not grow on trees. Nuclear weapons are difficult to create and
difficult to maintain. Hostile or potentially hostile nuclear nations have
every reason to avoid allowing any proliferation. While the United
States has shown caution in getting involved
with military confrontations with nuclear powers, does anyone doubt that if
terrorists obtained and used a nuclear weapon and this weapon could be traced
to North Korea,
Pakistan, etc,
that the United States
would not respond with a “shock and awe” military strike against such a nation?
Terrorism does not pose an existential threat to the nation as did the Axis
during World War II or the nuclear armed Soviet Union
during the Cold War. If anything, the United
States should be doing less spying and not
more. If anything, the American people are finally owed the peace dividend from
the ending of the Cold War.
Like the ruthless yet clueless neocons in
the administration that preceded his, President Obama shamelessly invoked 9/11:
The horror of
September 11th brought all these issues to the fore. Across the political
spectrum, Americans recognized that we had to adapt to a world in which a bomb
could be built in a basement, and our electric grid could be shut down by
operators an ocean away. We were shaken by the signs we had missed leading up
to the attacks—how the hijackers had made phone calls to known extremists and
traveled to suspicious places.
Adapt? How about not escalating the
Afghanistan War? How about not unconstitutionally attacking Libya?
How about not trying to gin up a war against Syria?
How about watching China
and Russia—who
actually probably can shut down the
electric grid—instead of watching ordinary Americans? How about paying
attention to obvious
signs like memos stating that Al Qaeda is poised to strike?
President Obama even shamelessly evoked
the debunked lie about how 9/11 could have been prevented if the NSA had been
bulk collecting metadata at the time:
Why is this
[NSA bulk collection of metadata] necessary? The program grew out of a desire
to address a gap identified after 9/11. One of the 9/11 hijackers—Khalid
al-Mihdhar -- made a phone call from San Diego
to a known al Qaeda safe-house in Yemen.
NSA saw that call, but it could not see that the call was coming from an
individual already in the United States.
The telephone metadata program under Section 215 was designed to map the
communications of terrorists so we can see who they may be in contact with as
quickly as possible.
Without the bulk collection of metadata,
the United States
knew
the identity of Khalid-al-Mihdhar well before 9/11 and knew exactly where to
find him. They just failed to do so. The NSA, FBI, CIA, and their sister
intelligence agencies in the federal government were all negligent prior to
9/11. Should negligent actors be awarded more power? If too much was slipping
through the cracks then, why give these agencies even more hay—in the form of
metadata—to obscure the needles for which they are searching?
4. Pot, meet
kettle.
President Obama pulled out one of his
favorites from his bag of tricks—blaming President Bush:
And yet, in our
rush to respond to a very real and novel set of threats, the risk of government
overreach—the possibility that we lose some of our core liberties in pursuit of
security—also became more pronounced. We saw, in the immediate aftermath of
9/11, our government engaged in enhanced interrogation techniques that
contradicted our values. As a Senator, I was critical of several practices,
such as warrantless wiretaps. And all too often new authorities were instituted
without adequate public debate.
As usual, the
President did not let the facts get in the way of a good story. Enhanced
interrogation? What is the difference between doing it and having some ally do
it in a secret prison overseas after you have allowed terror suspects and
others to be whisked away using extraordinary rendition? How was Bush’s
warrantless wiretapping any worse than what the NSA has done on President
Obama’s watch?
5. President
Obama’s War on Whistleblowers will continue.
President Obama
has been notoriously hard on whistleblowers.
He assured us that he will continue to fight this war in earnest:
And
given the fact of an open investigation, I’m not going to dwell on Mr.
Snowden’s actions or his motivations; I will say that our nation’s defense
depends in part on the fidelity of those entrusted with our nation’s secrets.
If any individual who objects to government policy can take it into their own
hands to publicly disclose classified information, then we will not be able to
keep our people safe, or conduct foreign policy. Moreover, the sensational way
in which these disclosures have come out has often shed more heat than light,
while revealing methods to our adversaries that could impact our operations in
ways that we may not fully understand for years to come.
Without
whistleblowers, how would the people ever learn of abuses done by clandestine
government organizations? One wonders if President Obama believes that
Woodward, Bernstein, and Deep Throat should all have been prosecuted under the
1917 Espionage Act.
6. Friend of
false dilemma.
President Obama
implied time and time again that one can either accept that the NSA must
violate Constitutional rights or one believes that the nation should disarm its
intelligence agencies. This is the kind of black and white thinking that made
President George W. Bush infamous. It turns out that President Obama is also
skilled in such fallacious thinking:
First, everyone
who has looked at these problems, including skeptics of existing programs,
recognizes that we have real enemies and threats, and that intelligence serves
a vital role in confronting them. We cannot prevent terrorist attacks or cyber
threats without some capability to penetrate digital communications—whether
it’s to unravel a terrorist plot; to intercept malware that targets a stock
exchange; to make sure air traffic control systems are not compromised; or to
ensure that hackers do not empty your bank accounts. We are expected to protect
the American people; that requires us to have capabilities in this field.
Moreover, we cannot unilaterally disarm our intelligence agencies.
Who was
suggesting that the United States
disarm its intelligence agencies? This is like saying that anyone who opposes
unnecessary and unconstitutional uses of military force believes that the United
States should disarm its military and throw
up the white flag to its enemies around the globe. President Obama again and
again misses the point. Surveilling foreign governments and terrorists is
necessary. Nobody is denying that. But why does that mean that the NSA should
be collecting information on citizens domestically without probable cause or
even suspicion? Why is the federal government targeting American citizens at
all when all the 9/11 plotters were foreign?
7. No such thing
as double standards.
President Obama
claimed that employees of the NSA and other intelligence agencies can be
trusted because they are just like us:
Second,
just as ardent civil libertarians recognize the need for robust intelligence
capabilities, those with responsibilities for our national security readily
acknowledge the potential for abuse as intelligence capabilities advance and
more and more private information is digitized. After all, the folks at NSA and
other intelligence agencies are our neighbors. They're our friends and family.
They’ve got electronic bank and medical records like everybody else. They have
kids on Facebook and Instagram, and they know, more than most of us, the
vulnerabilities to privacy that exist in a world where transactions are
recorded, and emails and text and messages are stored, and even our movements
can increasingly be tracked through the GPS on our phones.
Uh, members of
the Gestapo, the KGB, and the Stasi were just like ordinary Germans, Soviets,
and East Germans. So why did members of those organizations not “readily
acknowledge the potential for abuse?” Could it be that members of spy agencies
have the ability to exempt themselves and their family members? What is to
prevent members of the NSA from formulating a policy of not surveilling
employees, friends, and family of the agency? If Obamacare has taught us
anything, it is that the President has no trouble with making unjustified
exceptions to rules. So why not here as well?
8. Okay, I’m a
crook, but look at that bigger crook over there!
President Obama
essentially acknowledged that the federal government is violating the privacy
of its citizens, but he distracted his audience by pointing to another culprit:
Third, there
was a recognition by all who participated in these reviews that the challenges
to our privacy do not come from government alone. Corporations of all shapes
and sizes track what you buy, store and analyze our data, and use it for
commercial purposes; that’s how those targeted ads pop up on your computer and
your smartphone periodically. But all of us understand that the standards for
government surveillance must be higher. Given the unique power of the state, it
is not enough for leaders to say: Trust us, we won’t abuse the data we collect.
For history has too many examples when that trust has been breached. Our system
of government is built on the premise that our liberty cannot depend on the
good intentions of those in power; it depends on the law to constrain those in
power.
It is no secret
that President Obama the corporatist does not like business—unless it is a
business that gives campaign contributions to his party. He basically said:
“Hey, the corporations are violating your privacy, too!” So what? He claims
that the government should have a higher standard. But the thing is that the
government is becoming unaccountable. One has a choice whether or not to do
business with a corporation that violates privacy. If you do not like the
policies of Facebook, then you can delete your account. If you think that
Google is probing too much, then you can use other websites and online
services. If you think that Amazon is spying too much on your internet
activity, then you can shop elsewhere. The bottom line is that there is at
least a small check against private businesses in that angry customers and
others can boycott them. The two major political parties are two sides of the
same rotten penny, so “throwing the bums out” will not do a thing.
9. Playing the
King card.
President Obama,
as he often does, referenced Martin Luther King:
In
fact, during the course of our review, I have often reminded myself I would not
be where I am today were it not for the courage of dissidents like Dr. King,
who were spied upon by their own government.
How are those
like Snowden and Manning not dissidents? At this point it seems likely that if
Martin Luther King were still alive, President Obama would be spying on him. It
is also plausible that Reverend King might be facing a charge under the 1917
Espionage Act or living in forced exile.
10. Fox guarding
the hen house.
President Obama
promised greater executive oversight:
First,
I have approved a new presidential directive for our signals intelligence
activities both at home and abroad. This guidance will strengthen executive
branch oversight of our intelligence activities.
President Obama
has hardly proven himself to be a friend of the Constitution. The centerpieces
of his presidency—Obamacare and the Libyan “kinetic military action”—both involved
egregious violations of the Constitution, so how can he be trusted to provide
adequate oversight?
11. Most
transparent administration.
President Obama
also claimed that there will now be more transparency:
Second,
we will reform programs and procedures in place to provide greater transparency
to our surveillance activities, and fortify the safeguards that protect the
privacy of U.S.
persons.
The President
has claimed time and time again that his is “the most
transparent” administration ever. Repeating this claim over and over does
not make it any more true—or any less ridiculous. The Obama administration has
been anything
but transparent with its army of lawyers fighting Freedom of Information
Act requests, its War on Whistleblowers, its secretive drone campaign, etc.
However, even if he does turn over a new leaf, transparency is not enough.
Being transparent about the violation of rights does not make those actions any
less unconstitutional.
12. Whatever
happened to probable cause?
The Fourth
Amendment states that warrants shall not issue without probable cause.
President Obama defended the NSA bulk metadata collection program by stating:
This brings me to the program that has generated the most
controversy these past few months—the bulk collection of telephone records
under Section 215. Let me repeat what I said when this story first broke: This
program does not involve the content of phone calls, or the names of people
making calls. Instead, it provides a record of phone numbers and the times and
lengths of calls—metadata that can be queried if and when we have a reasonable suspicion
that a particular number is linked to a terrorist organization.
In sum, the program does not involve the NSA examining the
phone records of ordinary Americans. Rather, it consolidates these records into
a database that the government can query if it has a specific lead—a
consolidation of phone records that the companies already retained for business
purposes. The review group turned up no indication that this database has been
intentionally abused. And I believe it is important that the capability that
this program is designed to meet is preserved.
Reasonable
suspicion? Whatever happened to probable cause? It is the reasonable suspicion
standard which causes the greatest problem. If the government has all this data
in a big database and can dig deep into it with merely a claim of reasonable
suspicion, then there is simply no way to protect the rights of American
citizens. Unless and until the Fourth Amendment is fully restored and probable
cause is again treated as the exceptionless standard it was intended by the
Founders to be, then no safeguards will help.
13. Fascism or
corporatism? Take your pick.
President
Obama suggested two possible reforms to NSA bulk collection of metadata:
The review
group recommended that our current approach be replaced by one in which the
providers or a third party retain the bulk records, with government accessing
information as needed. Both of these options pose difficult problems. Relying
solely on the records of multiple providers, for example, could require
companies to alter their procedures in ways that raise new privacy concerns. On
the other hand, any third party maintaining a single, consolidated database
would be carrying out what is essentially a government function but with more
expense, more legal ambiguity, potentially less accountability—all of which
would have a doubtful impact on increasing public confidence that their privacy
is being protected.
Six of one, a half dozen of the other.
What difference does it make if the NSA itself has this data or some third
party does? Furthermore, such collaboration between government and private
entities in such nefarious matters just stinks of fascism or corporatism. When
government and corporations collaborate in such a manner, the only question is
which one is steering the unconstitutional bus that is about to run over the
people. This all begins to feel like a shell game. The NSA will
unconstitutionally get this data and will be able to access it on demand. What
does it matter where it is stored or who is storing it?
14. Didn’t you hear my lies the first
time?
President Obama began to wind up his
speech by again repeating a dubious claim:
The bottom line
is that people around the world, regardless of their nationality, should know
that the United States
is not spying on ordinary people who don’t threaten our national security, and
that we take their privacy concerns into account in our policies and
procedures.
The NSA is collecting metadata on
essentially everyone. That is the definition of spying. And since everybody is
not threatening American national security, the President’s statement is simply
not true.
15. Beware that, when fighting monsters,
you yourself do not become a monster.
President Obama concludes
with some language which in another context would be inspirational:
As the nation
that developed the Internet, the world expects us to ensure that the digital
revolution works as a tool for individual empowerment, not government control.
Having faced down the dangers of totalitarianism and fascism and communism, the
world expects us to stand up for the principle that every person has the right
to think and write and form relationships freely—because individual freedom is
the wellspring of human progress.
However, President Obama and all future
presidents must take heed. The United States
did in fact help defeat the evils of fascism and communism, but there is the
danger that fighting such monsters could turn the nation into such a monster.
Perhaps it has already happened.