11 June 2013

Secrecy, Scandals, and Snowden

This is a bit contrary to the usual progressive stance on the latest NSA data collection revelations. Although I believe that the legal system that is in place might very well be infringing on our Fourth-Amendment rights, I don't see a major scandal here. Rather, I see an opportunity highlight the danger of excessive secrecy.

Back in September 2008, after giving birth to by book, No Stranger To Strange Lands, had sadly come to an end, I felt like the only way to rid myself of a sense of post-partum depression was to keep writing, indulging myself in writing an undisciplined screed titled Secrecy, Democracy,and Fascism: Lessons From History. Having been watching a lot of episodes of House, the theme was to discover the disease that was manifesting itself as through the unfortunate symptom of runaway conspiracy theories and, I was arguing, unwarranted distrust of the government. "Mis-diagnosing the disease, "I wrote, "can be as bad or worse than just ignoring it." I was deeply troubled by such issues as Karl Rove's plan to politicize the judiciary and create one-party rule, Dick Cheney's penchant for secrecy and his abuse of power in lashing out against Joe Wilson for outing the administration's flawed argument for going to war in Iraq, and George Bush's excessive use of signing statements, and I decided to take a look at what critical terms Like "tyranny" and "fascism" that were being bandied about really meant — what it was that our failing democracy was becoming. The issue of secrecy seemed to me to be one of the greatest forces eroding at democracy, which depends upon informed citizens to function properly. Secrecy also erodes trust, and a crisis in trust can turn into an earthquake, catastrophically tearing apart the foundation of democracy.

Barack Hussein Obama would soon be elected president, and I supported him, believing in his promise to do things differently. Of course, his decision, upon winning the Democratic Party primary, to eschew public financing, which was contrary to what he had previously said, was an early disappointment, but after all, the man would most likely be outspent by the Republican Party if he didn't. His cozying up to the banking community right out of the gate was the next sign that things would not be all that different, yet I rationalized that it was something President Obama had to do to gain the trust of the elites and show that he was not going to be a wild-eyed radical. Obama's June 2009 Cairo speech was inspiring, but then came the surreal moment in December 2009 of his Nobel Peace Prize acceptance speech, where he rationalized expanding the war in Afghanistan rather than trying to put an end to it, at which time I went a little crazy trying to make defend him from so many people around me who felt totally betrayed by him. Obama refused to put the single-payer option on the table during the healthcare-reform debate, Guantanamo has continued to be a black stain on the idea of the United States being a shining beacon of freedom and justice, the prison-industrial complex has only grown more robust, and the president has continually disappoint progressives in many other ways, with the latest anger-inducing policies being the drone attacks and the Justice Department's aggression toward whistle-blowers and journalists... and yet... And yet, Obama remains a champion of many progressive causes.

Now we have the NSA spying story dropping like a bomb and blowing up in the face of any progressives still trying their best to find a way to defend Barack Obama against social conservatives and libertarians who long ago judged the president to be the enemy of Freedom and the "American Way."

Yes, the metadata collection is troubling for its scope and secrecy. Given the questionable constitutionality of the targeted killings that the Obama Administration and Attorney General Eric Holder claim are legal under the "Authorization for Use of Military Force Against Terrorists Resolution" passed by Congress shortly after 9/11, there are certainly grounds for concern about what the NSA is up to. However, I feel like the breaking stories in the Guardian and the Washington Post are a bit heavy on the hype and light on the context and possibly the facts – although this does highlight the problem of secrecy making facts hard to come by. I can't help but agree with David Simon, creator of The Wire, who posted an article titled We are shocked, shocked... on his blog, and his assessment of what the problems that need to be solved are, which I have bolded:
When the Guardian, or the Washington Post or the New York Times editorial board — which displayed an astonishing ignorance of the realities of modern electronic surveillance in its quick, shallow wade into this non-controversy — are able to cite the misuse of the data for reasons other than the interception of terrorist communication, or to show that Americans actually had their communications monitored without sufficient probable cause and judicial review and approval of that monitoring, then we will have ourselves a nice, workable scandal. It can certainly happen, and given that the tension between national security and privacy is certain and constant, it probably will happen at points. And in fairness, having the FISA courts rulings so hidden from citizen review, makes even the discovery of such misuse problematic. The internal review of that court’s rulings needs to be somehow aggressive and independent, while still preserving national security secrets. That’s very tricky.

The original breaking stories in the Guardian and the Washington Post did require some revision that removed a good deal of explosive power. Ed Bott at ZDNet has the details:
Crucially, the Post removed the “knowingly participated” language and also scrubbed a reference to the program as being “highly classified.” In addition, a detail in the opening graf that claimed the NSA could “track a person’s movements and contacts over time” was changed to read simply “track foreign targets.”
I also tend to agree with William Connolley's analysis:
I can’t tell where the truth lies, but I suspect that the Graun [Guardian] has indulged in what Wiki would call “Original Research”, which is to say connecting the dots a bit further than the sources permit. This is the key slide, and the key words are “Collection directly from the servers of…”. Weeell, its only a powerpoint slide, hardly a careful analysis. It looks like the real meaning of “directly from the servers of” is actually “we put in requests, following the law, and they comply with that law by providing data”. Which is a very different thing to direct access. The former is known and boring (even if you don’t like it); the latter would be new. The Graun knows about the distinction and is definitely claiming the latter (they have to be, otherwise there is no story): Companies are legally obliged to comply with requests for users’ communications under US law, but the Prism program allows the intelligence services direct access to the companies’ servers.
I especially agree with this science writer's assessment of whistleblower Edward Snowden. Although he is in favor of whistleblowers, he thinks praise of this one is premature, because "some of the stuff the Graun has him saying makes him sound rather tin-foil-hat to me." And John Michael McGrath at Hazlitt has a similar opinion.

There are real, heroic whistleblowers, like Joe Wilson, CIA torture whistleblower John Kiriakou, Julian Assange, and Bradley Manning, who have outed secrets that are secret because they are illegal and deplorable, and then there are fake whistleblowers, such as John Dodson, who engage in illegal and unethical acts themselves then pretend to be victims of government political persecution. I'm not saying that I think Snowden is as bad as Dodson... but I'm sorry; this guy's story just doesn't quite sit right with me, and I am very interested to find out if all of the claims he has made can be confirmed. He was a supporter of Ron Paul, which means he is not a fan of Big Government, even though he made awfully good money working in the spy business (well, according to his now-former employer, not as much as he claimed – so there's one possible crack in his story). Maybe he thinks he is another Bradley Manning, but all he actually did was out corporations for how they share data with the government, rather than proving the government to be acting outside of the given laws, which I don't believe are totally constitutional. Unfortunately, case law says otherwise. I would say that the massive amount of electronic data collected and stored by the government—at great expense—is rather scandalous, but that news doesn't seem to have made nearly as much of a splash.

And what does it say that we keep using Google and Facebook—by choice—despite all the grumbling about how the corporations are spying on us? The fact that it is totally and completely fine for corporations to collect this data is more maddening to me than that the government is doing it, because of the two, I believe it is easier to hold the government accountable. In fact, it is the government that is charged with keeping corporations from invasions of privacy, such as when Google got carried away collecting information for its Street View mapping project.

Although the NSA disclosure is probably a good thing for bringing about a national conversation about how the agency gathers information, this isn't warrantless wiretapping, which is what the G.W. Bush Administration was up to with the President's Surveillance Program under the legal guidance of Office of Legal Counsel Deputy Assistant Attorney General John Yoo. According to a 2009report by the Office of Inspectors General, James Comey, Patrick Philbin, and Jack Goldsmith eventually challenged this legal counsel, concluding that "Yoo's memoranda did not accurately describe some of the Other Intelligence Activities that were being conducted under the Presidential Authorizations implementing the PSP, and that the memoranda therefore did not provide a basis for finding that these activities were legal," which led to a dramatic hospital-room standoff pitting Andrew Card and Alberto Gonzales against the three DOJ challengers to the program followed the next day by the threat of mass DOJ resignations.

Until we hear of this kind of internal dissent, I am not sure that it is true that the United States is on a "slippery slope to totalitarianism," as many have been claiming. And I really resent all those "Orwell: I told you so" slogans I am seeing, because George Orwell's dystopia was far more fucked up than this. The spying was total and complete. Judging by all the crazy shit that is allowed to be said about the president and the government, there is nothing close to the Thought Police in the United States. The Cult of Personality thing hasn't exactly panned out like fearmongers have said it would during the 2008 elections... and nobody has come after anybody's guns.

I suggest we talk about strengthening the safeguards in the system, try to remove some of the unnecessary layers of secrecy and wait and see just how our government deals with this individual before assuming that a vicious attack or smear campaign takes place.

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