Inside The National Security State Not Much Ever Changes

There's been some dispute about what S. 2685, the U.S.A. Freedom Act of 2014 would have done and not done to protect American citizens from the excesses of an unaccountable national security state. Since it won't become law-- the Republicans successfully filibustered it Nov. 18-- I guess we don't have to dig too deeply into the fine points. Actually not all the Republicans filibustered it. Dean Heller (R-NV) and Lisa Murkowski (R-AK) both crossed the aisle and voted for cloture with all the Democrats (except Bill Nelson of Florida); they do that sometimes. Ted Cruz (R-TX) and Mike Lee (R-UT) don't ever do that-- but they both did on this bill. There were 58 votes in favor-- 2 shy of what's required to break the filibuster, something "moderate" Susan Collins (R-ME), "moderate" Mark Kirk (R-IL) and libertarian Rand Paul (R-KY) could have easily turned right around-- and 42 votes against.

A similar bill passed the House last May 303-121. There were 70 Democrats and 51 Republicans in opposition to a bill that was viewed as not going far enough to protect the constitutional rights of American citizens. Members who care about privacy and the Constitution and oppose Big Brother encroaching on what rights we have left-- whether people like Justin Amash (R-MI), Louie Gohmert (TX), Matt Salmon (AZ), Walter Jones (NC) and Kerry Bentivolio (MI) on the right or people like Barbara Lee (D-CA), Raul Grijalva (D-AZ), Henry Waxman (D-CA), Donna Edwards (D-MD) and Keith Ellison (D-MN) on the left-- voted against the House version. Another vote against the House version was Alan Grayson (D-FL), who wrote a letter to his constituents this week extolling the virtues of the Senate version. It's a good letter, very much worth reading:

There was a filibuster in the U.S. Senate last week. Yes, I know, that’s hardly news. And a cloture vote to end that filibuster. That’s hardly news, either. And the cloture vote failed. Not news. 

The vote was, among other things, to end the National Security Agency’s collection of records of every phone call that you make. Which, sadly, also is no longer news. What would be news is if someone did something about it. 

Fifty-eight senators voted in favor of ending the filibuster, and the “bulk collection.” Only forty-two voted against. But we no longer live in a country where the majority rules, so every single time you make a phone call, the NSA will know to whom you spoke, and for how long. 

Regarding the failed vote against the filibuster, the D.C. newspaper Roll Call opined that: “It’s probably going to take another series of revelations about NSA programs for strict legislation to get momentum again.” But I’m wondering how much of the last series of revelations has been absorbed by the body politic. So I’m offering to you excerpts from a little-noticed interview that Edward Snowden did with The Guardian a few months ago, complete with British spelling. File it under the category of “read it and weep.”

Yes, the NSA Shares Your Sexy Photos … And Other Observations from Edward Snowden

On NSA culture, sharing sexually compromising material

SNOWDEN: When you’re an NSA analyst and you’re looking for raw signals intelligence, what you realise is that the majority of the communications in our databases are not the communications of targets, they’re the communications of ordinary people, of your neighbours, of your neighbours’ friends, of your relations, of the person who runs the register at the store. They’re the most deep and intense and intimate and damaging private moments of their lives, and we’re seizing [them] without any authorisation, without any reason, records of all of their activities-- their cell phone locations, their purchase records, their private text messages, their phone calls, the content of those calls in certain circumstances, transaction histories-- and from this we can create a perfect, or nearly perfect, record of each individual’s activity, and those activities are increasingly becoming permanent records.

Many of the people searching through the haystacks were young, enlisted guys and … 18 to 22 years old. They’ve suddenly been thrust into a position of extraordinary responsibility where they now have access to all your private records. In the course of their daily work they stumble across something that is completely unrelated to their work, for example an intimate nude photo of someone in a sexually compromising situation but they’re extremely attractive. So what do they do? They turn around in their chair and they show a co-worker. And their co-worker says: “Oh, hey, that’s great. Send that to Bill down the way.” And then Bill sends it to George, George sends it to Tom and sooner or later this person’s whole life has been seen by all of these other people. Anything goes, more or less. You’re in a vaulted space. Everybody has sort of similar clearances, everybody knows everybody. It’s a small world.

It’s never reported, nobody ever knows about it, the auditing of these systems is incredibly weak. Now while people may say that it’s an innocent harm, this person doesn’t even know that their image was viewed, it represents a fundamental principle, which is that we don’t have to see individual instances of abuse. The mere seizure of that communication by itself was an abuse. The fact that your private images, records of your private lives, records of your intimate moments have been taken from your private communication stream, from the intended recipient, and given to the government without any specific authorization, without any specific need, is itself a violation of your rights. Why is that in the government database?

I’d say probably every two months you see something like that happen. It’s routine enough, depending on the company you keep, it could be more or less frequent. But these are seen as the fringe benefits of surveillance positions.

The rest of Grayson's letter-- and Snowden's interview-- can be found here on Grayson's Tumblr page. But let's take a little trip in the time machine back 4 decades to just after Nixon was forced to resign and Jerry Ford was installed as president. Historian Rick Perlstein writes about this period in his latest book, The Invisible Bridge and, of course, no account of this era would be complete without a discussion of an earlier round of utterly unconstitutional, illegal CIA/NSA shenanigans, that included everything from assassinations to opening Americans' mail. Frank Church (D-ID) in the Senate and Otis Pike (D-NY) in the House did the heavy investigatory lifting, although the Elizabeth Warren of her day, Bella Abzug (D-NY) kicked off the investigations by exposing two unconstitutional government surveillance projects, code-named SHAMROCK-- which intercepted, without warrants, every telegram coming into the United States and distributed them to the CIA, FBI, Secret Service or Department of Defense-- and MINARET-- a similar program but one targeting specific individual Americans (including political leaders like Frank Church and Howard Baker, boxer Muhammed Ali, Martin Luther King, Jr., journalists like Tom Wicker-- both run, Perlstein reports "by a government bureau that was so secret most Americans didn't even know it existed," the NSA. Do they today?

"With a reputed budget of some $1.2 billion and a manpower roster far greater than the CIA," the Associated Press explained, the National Security Agency had been "established in 1952 with a charter than is still classified as top secret." (Its initials, the joke went, stood for "No Such Agency.") It had also, Abzug revealed, been monitoring both the phone calls and telegrams of American citizens for decades. President Ford persuaded Church not to hold hearings on the matter. Abzug proceeded on her own. At first, when she subpoenaed the executives responsible for going along with the programs, the White House tried to prevent their testimony by claiming the private companies were "am agent of the United States." When they did appear, they admitted their companies had voluntarily been turning over records and cables to the government at the end of every single day for more than forty years. The NSA said the programs had been discontinued. Abzug claimed they still survived, just under different names. At that, Church changed his mind: the contempt for the law here was so flagrant, he decided, he would initiate NSA hearings too.

Conservative members of his committee issued defiant shrieks: "people's right to know should be subordinated to people's right to be secure," said Senator John Tower. It would "adversely affect our intelligence-gathering capability," said Barry Goldwater. Church replied that this didn't matter if the government was breaking the law. He called the NSA's director to testify before Congress for the first time in history. Appearing in uniform, Lieutenant General Lew Allen Jr., obediently disclosed that the agency's sprung on Americans was far vaster than what had ever been revealed to the Rockefller Commission. He admitted that it was, technically, illegal, and had been carried out without specific approval from any president. But he declined to explain how it worked. He added that thanks to such surveillance, "We are aware that a major terrorist attack in the United States was prevented." He refused to give further details on that, either-- as if daring the senators to object.

...As for the president, he followed the recommendation of Donald Rumsfeld and Dick Cheney and closed down further NSA inquiry by extending executive privilege to the officials and telecommunications executives involved. This institutionalization of what had been a novel, and exceptionally controversial, legal doctrine into a brand-new presidential administration got no coverage either.

A little over a year ago, Grayson did an OpEd for The Guardian, Congressional oversight of the NSA is a joke, I should know, I'm in Congress.

In the 1970s, Congressman Otis Pike of New York chaired a special congressional committee to investigate abuses by the American so-called "intelligence community"-- the spies. After the investigation, Pike commented:

It took this investigation to convince me that I had always been told lies, to make me realize that I was tired of being told lies.

I'm tired of the spies telling lies, too.

Pike's investigation initiated one of the first congressional oversight debates for the vast and hidden collective of espionage agencies, including the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and the National Security Agency (NSA). Before the Pike Commission, Congress was kept in the dark about them – a tactic designed to thwart congressional deterrence of the sometimes illegal and often shocking activities carried out by the "intelligence community." Today, we are seeing a repeat of this professional voyeurism by our nation's spies, on an unprecedented and pervasive scale.

Recently, the US House of Representatives voted on an amendment-- offered by Representatives Justin Amash and John Conyers-- that would have curbed the NSA's omnipresent and inescapable tactics. Despite furious lobbying by the intelligence industrial complex and its allies, and four hours of frantic and overwrought briefings by the NSA's General Keith Alexander, 205 of 422 Representatives voted for the amendment.

Though the amendment barely failed, the vote signaled a clear message to the NSA: we do not trust you. The vote also conveyed another, more subtle message: members of Congress do not trust that the House Intelligence Committee is providing the necessary oversight. On the contrary, "oversight" has become "overlook."

Despite being a member of Congress possessing security clearance, I've learned far more about government spying on me and my fellow citizens from reading media reports than I have from "intelligence" briefings. If the vote on the Amash-Conyers amendment is any indication, my colleagues feel the same way. In fact, one long-serving conservative Republican told me that he doesn't attend such briefings anymore, because, "they always lie."

Many of us worry that Congressional Intelligence Committees are more loyal to the "intelligence community" that they are tasked with policing, than to the Constitution. And the House Intelligence Committee isn't doing anything to assuage our concerns.

I've requested classified information, and further meetings with NSA officials. The House Intelligence Committee has refused to provide either. Supporters of the NSA's vast ubiquitous domestic spying operation assure the public that members of Congress can be briefed on these activities whenever they want. Senator Saxby Chambliss says all a member of Congress needs to do is ask for information, and he'll get it. Well I did ask, and the House Intelligence Committee said "no," repeatedly. And virtually every other member not on the Intelligence Committee gets the same treatment.

Recently, a member of the House Intelligence Committee was asked at a town hall meeting, by his constituents, why my requests for more information about these programs were being denied. This member argued that I don't have the necessary level of clearance to obtain access for classified information. That doesn't make any sense; every member is given the same level of clearance.

There is no legal justification for imparting secret knowledge about the NSA's domestic surveillance activities only to the 20 members of the House Intelligence Committee. Moreover, how can the remaining 415 of us do our job properly, when we're kept in the dark-- or worse, misinformed?

Edward Snowden's revelations demonstrate that the members of Congress, who are asked to authorize these programs, are not privy to the same information provided to junior analysts at the NSA, and even private contractors who sell services to foreign governments. The only time that these intelligence committees disclose classified information to us, your elected representatives, is when it serves the purposes of the "intelligence community."

As the country continues to debate the supposed benefits of wall-to-wall spying programs on each and every American, without probable cause, the spies, "intelligence community" and Congressional Intelligence Committees have a choice: will they begin sharing comprehensive information about these activities, so that elected public officials have the opportunity to make informed decisions about whether such universal snooping is necessary, or constitutional?

Or will they continue to obstruct our efforts to understand these programs, and force us to rely on information provided by whistleblowers who undertake substantial risks to disseminate this information about violations of our freedom in an increasingly hostile environment? And why do Generals Alexander and Clapper remain in office, when all the evidence points to them committing the felony of lying to Congress and the American people?

Representative Pike would probably say that rank-and-file representatives will never get the information we need from the House Intelligence Committee, because the spying industrial complex answers only to itself. After all, Pike, and many of the members of his special congressional committee, voted against forming it. As it is now constituted, the House Intelligence Committee will never decry, deny, or defy any spy. They see eye-to-eye, so they turn a blind eye. Which means that if we rely on them, we can kiss our liberty good-bye.