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After Snowden
Privacy, Secrecy, and Security in the Information Age
By Ronald Goldfarb St. Martin's Press
Copyright © 2015 Ronald Goldfarb
All rights reserved.
ISBN: 978-1-4668-7605-7
CHAPTER 1
INTRODUCTION
Ronald Goldfarb
Ronald Goldfarb is a veteran Washington, D.C., attorney, author of thirteen books, and a literary agent. He worked in the Department of Justice prosecuting organized crime cases during the Kennedy administration, and served as trial counsel in the U.S. Air Force, JAG, for three years before that. He was special counsel to a congressional (House of Representatives) investigation, and was appointed to chair a special review committee established by a D.C. federal court dealing with the practices of the Department of Labor. His Web site, http://www.ronaldgoldfarb.com, lists his biography in full detail.
The notorious revelations of Edward Snowden, former U.S. government employee and contractor, who stole and made public a deluge of classified government documents concerning U.S. surveillance practices, have generated passionate reactions worldwide. Most people have strong opinions about whether Snowden is a megalomaniacal traitor or a self-sacrificing patriot, and whether our nation's policies should err on the side of protecting national security or civil liberties. Use of the word "leak" to describe Snowden's disclosures, rather than geyser or waterfall, is as minimalizing of his action as the charge of espionage by the government seems a grandiose exaggeration of his offense.
Mediating the debate over the right judgment of Mr. Snowden's behavior is not the aim of this collection of essays by eminent scholars with expertise in relevant fields affected by the Snowden affair. Whatever the final verdict on Snowden may be—whether he is a public-spirited whistleblower, classic leaker, actor in a proud tradition of civil disobedience, or a vain and reckless vigilante, a treacherous criminal who has hurt his country—his behavior has raised important questions about our nation's dragnet surveillance practices and the proper agencies and manner of its review. These questions are the subject of this book.
What are the proper bounds of secrecy? Are current government surveillance practices justified as necessary measures of national security at a time of extraordinary provocation, or do they go too far, setting a dangerous precedent for our national policies of self-protection that could lead to a security state? And if so, who decides that, and what should be done about it?
A high school dropout and technical wizard, Snowden worked for the CIA, NSA, Defense Intelligence Agency, and recently for a private contractor (first Dell, then Booz Allen Hamilton) commissioned by the NSA, doing what has been described as cyber-counterintelligence. Once an idealistic participant in U.S. national security programs, Snowden became disillusioned by what he perceived as government excesses and abuses in its data gathering. Believing that he had no proper alternatives, Snowden fled from his carefree life in Hawaii, his well-paying job, his girlfriend, and his country, taking along four laptops with encrypted, top secret files. He claims he did so in order to protest what he viewed as major incursions on people's privacy and constitutional rights. "I took an oath to support and defend the Constitution and saw that the Constitution was being violated on a massive scale," he told a Texas teleconference.
The Snowden Files, by The Guardian editor Luke Harding—to be a movie by Oliver Stone—described the exciting, intense behind-the-scenes story of Snowden's dramatic flight to Hong Kong and his secret meetings with lawyer-journalist Glenn Greenwald, author of No Place to Hide. Greenwald's book complements and expands on Harding's story, as does the work of documentary filmmaker Laura Poitras—Snowden's other chosen vehicle for telling his story to the world. Poitras's Academy Award–winning documentary covering that clandestine drama, Citizenfour (Snowden's code name for Poitras), was shown in New York City on October 2014. New Yorker columnist George Packer called it "a political thriller." Poitras considers it a "human drama." The prize-winning reporter Barton Gellman would later join them in telling Snowden's story at The Washington Post.
For ten intense, perilous, around-the-clock days in Hong Kong, the three met secretly in Snowden's room at the Mira Hotel, joined by The Guardian's expert on national security, Ewen MacAskill, to evaluate Snowden's story before they would eventually tell it to the world. Once satisfied with Snowden as a credible source (after forty-eight hours of "speed dating," as MacAskill called it), The Guardian called the White House seeking a quick response before going public with Snowden's material. Getting none, The Guardian broke the story. Snowden hurriedly departed Hong Kong for refuge in South America, but finding his passport canceled by the United States ended up grounded en route at the airport in Russia.
At this time, Snowden, a thirty-one-year-old man without a country, remains in Russia under temporary asylum, recently joined by his girlfriend, regularly interviewed by visiting reporters, and broadcasting his story and viewpoints to audiences worldwide over the Internet. His residence permit recently was extended for three more years, as he negotiates safe harbor in other countries, evading extradition and facing an indictment in the United States for espionage and theft of government property for which he faces thirty years in prison. Reviled for recklessness and praised for self-sacrifice, his actions already have generated the beginnings of reforms.
Through his trusted journalistic confederates, he continues to expose the government's questionable surveillance practices. He certainly has generated a national debate about this subject in the United States, and engaged other countries in an international conversation by raising the public's consciousness about the practices of surveillance in the borderless world of cyberspace. In October 2014, the UN's top counterterrorism and human rights official formally reported to the General Assembly that questionable electronic surveillance by member states unjustifiably violated core privacy rights in violation of multiple treaties and conventions. Reformative bills are pending before the U.S. Congress. Reevaluation of House and Senate oversight practices are underway. Lawsuits have been filed. A high-level White House review panel already has proposed forty-six reform measures.
The Snowden affair raises a classic, fundamental question about how our three branches of government should synchronize their work, yet check and balance each other's powers. Is the executive branch's work on national security—arguably no more important role exists as part of its constitutional powers—properly overseen by the Congress and the courts? And how does the press monitor all three branches when national security is the question? Have surveillance technologies "outpaced democratic controls," as one of Snowden's attorneys claimed? A recent Foreign Affairs article concluded that "Snowden's revelations demonstrated how the implicit bargain that has governed the U.S. intelligence community since the 1970's has broken down." Has it? How so? What to do about it?
This book aspires to inform the debates generated by the Snowden disclosures about critical policies: the role of the press in reporting about national security; the value of leaks and the need for whistleblowers; the proper bounds and treatment of civil disobedience; the roles of courts and Congress in overseeing executive practices taken in the defense of our nation; and the appropriate balance between privacy and government investigation and secrecy in this evolving era of invasive technology and metadata gathering.
How do we protect our nation's security without creating, in the words of Cato Institute official Julian Sanchez, "a nigh-omniscient, planet-spanning, electronic panopticon"? And how do we deal with the conundrum described by James Clapper, Director of National Intelligence?: "We are supposed to keep the country safe, predict anticipatory intelligence, with no risk and no embarrassment if revealed, and without a scintilla of jeopardy to privacy of any domestic person or foreign person. We call that 'immaculate collection.'"
* * *
In the history of the United States—it could be said so about most, if not all, places—when national security, domestic terror, and personal provocation clash with people's civil liberties, the former prevail. That is human nature. The Constitution is not a suicide pact, the late Supreme Court Justice Robert Jackson said, capturing the human dilemma of this conundrum. As Professor Jon L. Mills points out in his chapter, "The Future of Privacy in the Surveillance Age," the first words of the Constitution pronounce the need for national security. Over a century later judges declared that privacy, not a word that appears in the Constitution, is constitutionally protected by implication from other protections in the Constitution.
There is both wisdom and cynicism in the manner in which national security is enforced. A book, America's War Machine, by the late James McCartney and his wife, Molly, both experienced reporters, quoted a remarkable conversation that took place in 1946 after World War II that echoes today in the wake of 9/11 and this country's attempts to prevent its recurrence.
" ... it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship ...," the speaker said.
But in a democracy, his questioner argued, "... the people have some say ... through their elected representatives, and in the U.S. only Congress can declare wars."
The challenged interviewer responded: "Oh, that is all well and good, but voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."
Ironically, the commentator quoted by the McCartneys was Hermann Goering, then a Nuremberg prisoner in an interview just before his execution. Some moral tutor to instruct on realpolitik!
History provides comparisons to current dilemmas—the internment of Japanese American citizens after the treacherous attack on Pearl Harbor, Hawaii, on December 7, 1941, was not one of this country's finest hours, and the infamous attack on America on 9/11 gave rise to draconian measures of extreme rendition, rationalized by some as necessary for national security, but condemned by others as excessive torture. In both instances, the provocation was clear, but the methods of response were questionable.
Materials provided by Snowden to Glenn Greenwald (reported in The Daily Beast and The Intercept) reported that the NSA and the FBI were monitoring e-mails of prominent Muslim Americans under secret procedures for targeting terrorists and foreign spies. Should ethnic profiling of American Muslim citizens today be condoned as a rational necessity, or compared with the excessive intelligence gathering of civil rights and antiwar activists of the 1960s and 1970s, and alleged Communist movie figures in Hollywood in the McCarthy era?
There will be inevitable victims of investigative abuses in trying times, to be sure. No one questioned the deceptions and spying we and our allies performed during World War II in the war against fascism; indeed we romanticize what the OSS accomplished at Bletchley and elsewhere to bring down our fascist enemies by any means or tactics. The government's specific rationale for the particular practices Snowden has questioned is classified, and therefore impossible to assess. Presumably the rationale is that after 9/11 extreme precautions were prudent, necessary.
The policing of government at its highest precincts is a tricky but vital assignment. The late New York University law professor Edmond Cahn argued, in The Predicament of Democratic Man (1961), that misconduct by the government is more pernicious than that of individuals. We are all morally involved in the wrongs of government. Undermining the rule of law, which is the bedrock of democracy, is the ultimate crime, Professor Cahn posited, because it leads to anarchy and the police state.
That notion is the premise of Snowden defenders, that whatever his offense may have been, the official misconduct he revealed is worse. When James Clapper, our Director of National Intelligence, was asked at a Senate inquiry—pre-Snowden disclosures—if NSA collected data on Americans, he said under oath, "No, not wittingly," a perjury in the view of some critics, though no one has called for his indictment. Nor has there been criminal action taken against CIA employees who reportedly improperly surveilled U.S. Senate personnel and records. Senator Ron Wyden reportedly knew Clapper's remarks were false, but prevailing confidentiality rules forbade his challenging them publicly. "If the American people knew what I knew," he was quoted as saying, "they would be angry and they would be shocked."
The efficacy of congressional oversight of the executive actions of seventeen separate agencies in national security matters became a matter of heightened public interest in the wake of Snowden's actions. How effective can congressional oversight be? For there to be synchronicity between branches of government, there needs to be trust between the congressional committees performing oversight and the executive agencies they oversee. Legislators have full plates of responsibilities. They rely on special committees and on their staffs and experts, some with more expertise and longevity and time than the members they serve. But they can probe only so far without the risk of spoiling the relations they depend on. Trust, but verify, works only insofar as one can verify.
Dealings are not always collegial between the overseers and the overseen. The CIA inspector general reported that, in July 2014, CIA Director John Brennan apologized to Senator Dianne Feinstein for "spying on the senator's activities," in regards to her investigation of the CIA's torture practices in this instance. No surprise, Senator Feinstein, a chief senatorial watchdog of executive surveillance practices, expressed pique at the interference with her committee staff by agents of those executive officials her committee was authorized to oversee.
Historically, some managers of congressional oversight didn't want to know what was going on and gave security agencies carte blanche. When he was Armed Services Committee Chairman, the late Senator John Stennis told CIA Director James Schlesinger in 1973 concerning the CIA's activities abroad, "No, no, my boy, don't tell me, just go ahead and do it but I don't want to know," according to Loch Johnson's history of intelligence oversight.
In the 1970s, this attitude changed, but after 9/11 the national security apparatus ramped up, understandably. In the follow-up of the Snowden affair, congressional experts and critics are reexamining the effectiveness of Congress acting as proxies for the American public in overseeing the intelligence community, and legislation is pending to rein in NSA's surveillance practices.
If there was greater professionalism by Congress in exercising its oversight responsibility—for example, a joint select committee and super staff for national security matters—as the 9/11 Commission recommended, would that improve the status quo? The 9/11 Commission stated:
Of all our recommendations, strengthening congressional oversight may be among the most difficult and important. So long as oversight is governed by current congressional rules and resolutions, we believe the American people will not get the security they want and need. The United States needs a strong, stable, and capable congressional committee structure to give America's national intelligence agencies oversight, support, and leadership.
A 2006 report by the Center for American Progress, No Mere Oversight, prepared by national security veterans, concluded that congressional oversight has been dysfunctional: "Congress has all of the tools it needs; it is simply not using them." The process has become "paralyzingly partisan," needs to be prodded by the press to deal with abuses, and is hampered by lack of cooperation "all but non-existent today" between congressional committees with different responsibilities. Congress largely defers to the executive, the report states. Congress is in an awkward position because there is a difference between what its members can say in public and in classified briefings.
(Continues...)
Excerpted from After Snowden by Ronald Goldfarb. Copyright © 2015 Ronald Goldfarb. Excerpted by permission of St. Martin's Press.
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