Sacrificing Liberty for Security
With the slew of information leaked by individuals like Edward Snowden, the secret workings of the NSA are becoming less secret, and the reality of intelligence gathering under President Obama isn’t anything to be proud of.
Do you ever have that feeling that you’re being watched? Do you find yourself increasingly looking over your shoulder, or maybe you’re just one of the many seniors convinced that changing their name on Facebook will somehow secure their chances of getting in to the college of their dreams. Under most circumstances, I would tell you that the idea of someone, or something, actively spying on you is crazy. But crazy, in a world turned obsessed over a fear and desire to destroy terrorism and all other perceived threats , is increasingly becoming reality. Since the hurried passage of the PATRIOT Act (and honestly, who wouldn’t vote for something called the “Patriot” act) the Federal government has struggled to define the line between an individual’s constitutionally guaranteed civil liberties, and their obligation to defend this country. Yet that line, between protecting the people and inadvertently denying them of their rights, has become increasingly blurred under the Obama Administration.
One of the major issues Obama was going to have to face upon taking office back in 2009 was the issue of national security, and how the federal government conducts operations concerning domestic security. Since 2001 the government’s capabilities to collect information and spy on certain groups had been growing, yet Americans understanding of what the federal government was doing, and just what it was legally permitted to do, was still very limited. Most information on government intelligence capabilities were kept secret, and because of the way the PATRIOT Act was written, whenever it was used to collect intelligence or information it’s use was kept secret. Yet this past May all that would change, when little known computer specialist Edward Snowden leaked scores of classified documents to the media detailing the actions of the National Security Agency (NSA). It showed that in the past four years, a lot has changed.
The major issue that the leaked information provided was one that looked at who the NSA, and the Central Intelligence Agency (CIA), could effectively spy on. The information that Snowden released claimed that the NSA was now spying on Americans, something that was previously off limits. The 2008 Amendment of the Foreign Intelligence Surveillance Act, detailing the bounds of the NSA’s spying programs made it clear that, for both the NSA and the CIA, intelligence could only be gathered on foreign, non-American targets. To specifically and knowingly target an American citizen would not only be against this particular law, but would break the constitutionally implied right of privacy. In an attempt to get ahead of the issue, President Obama called a rare press conference in which he agreed that the released information was revealing, however he explained that even if the NSA did have the capabilities to spy on Americans, he doubted it was ever used. “What you’re hearing about is the prospect that these (intelligence gathering capabilities) could be used,” the president explained. Obama then furthered that, “part of the reason they’re not being abused is because they’re… these checks are in place.” President Obama was sure that his NSA had followed the law, and that if they hadn’t, there was a system in place to stop them. Unfortunately, he was wrong.
Just days after the President gave this press conference, the Washington Post broke a story detailing another piece of leaked information from Edward Snowden. This time, it was an audit of compliance from the NSA, meaning it was essentially a list of times that the NSA failed to comply with the laws limiting them from spying on Americans. It showed that between May of 2011 to May of 2012, the NSA had committed 2,776 incidents of, “unauthorized collection of legally protected communications.” In one year alone, the National Security Agency has “incidentally,” collected information that was legally protected, nearly all of which was from domestic targets, over 2,700 times. And more shocking is that the audit doesn’t even look at the entire NSA organization, simply the offices in the D.C. area. So when President Obama gave this press conference a few weeks ago, it wasn’t that he had simply overlooked maybe one, two, or even three small incidents of the NSA spying on Americans. Rather, he had neglected to mention that this so-called system of powerful, “checks,” against the NSA’s power had failed over 2000 times. So it’s no longer the prospect of the NSA abusing their power, they’re certainly abusing, and they’re certainly not being stopped.
Now for the President to be left in the dark about over 2000 incidents of government failures seems particularly odd, especially when you consider that he is leading this government. But the question as to whether or not the president fully understood this massive and overwhelming display of spying on Americans becomes all the more clear when we understand that he authorized it. Just this week, the judicial opinion of US District Judge John D Bates, then chief judge of the Foreign Intelligence Surveillance court, detailed how President Obama requested an extension of the NSA’s power. In 2008, the court instituted a specific ban against reviewing the phone logs or emails or American citizens, yet by 2011, President Obama had ordered a reversal of this decision. The judicial opinion states that based on his explicit orders, the National Security Agency was permitted to search deliberately for American’s communications in it’s massive database of information. So not only did President Obama, considering he is the president, know about these 2000 plus infringements. It was his decision, back in 2011, that even allowed the NSA to have the authority to spy on Americans.
But to be fair, let’s look at the system in place that President Obama mentioned in his press release as the group checking the power of the NSA. The Foreign Intelligence Surveillance Court (FISC) is the main governing body with the jurisdiction to either accept or deny a request from the NSA for a warrant or for other intelligence gathering permissions. However FISC doesn’t work like a normal court. It consists of secret judges, that give secret rulings, based off of secret interpretations of the constitution. So while the court may have chosen, in one instance, to allow the NSA to spy on Americans within the bounds of the constitution, no one will ever know why, or whether or not it was truly of legal credibility. William C Banks, national security law expert at Syracuse University, explains how even one secret course can produce rulings with enormous consequences. A recent decision made by FISC was one in which they expanded the principle of “special need,” previously applied to businesses in a 1989 Supreme Court ruling that said a business owner could compel one their employees to take a drug test. The same principle, the court rules, can be applied to the government’s right to gather intelligence from Americans. “It seems like a legal stretch,” Banks argues, “it’s another way of tilting the scales toward the government in it’s access to all this data.” Not only do court rulings like this have powerful implications, but the secrecy they veil themselves in means that people like Banks and other concerned Americans will only ever get to hear about these rulings through unintended leaks, not because of an open and transparent government.
More frightening, however, is what happens when the court tells the NSA they’re not allowed to spy on Americans, yet they refuse to listen. The current chief of the court told the Wall Street Journal this past August that, “FISC does not have the capacity to investigate issues of noncompliance.” He went on to say that rather than seeking permission to spy on individual targets, they seek approval for broad surveillance schemes that become increasingly difficult to manage. So not only are their rulings kept secret from the American people, they also have no power to enforce these rulings when the government doesn’t like them, and the over 2700 incidents of noncompliance are a testament to the failure of the court’s ability to provide a strong check against the government.
It’s not simply spying on individuals that has changed since Obama took office, but also the way in which the government retrieves information from media and other news publications. Since 2001 the government has been more concerned with information that specific reporters have uncovered, and whether or not this information could be used to avert a national security disaster. Naturally, because of this fear, the government’s desire to attain more information and a reporters determination to keep their source anonymous and their information private have begun to rub up against each other. But the Bush administration, keen to get their hands on more information, decided to use the legal channels already set up to attain this information. Legal channels not developed by Bush, but that have been in place since 1972. They allow the government to ask for narrow access to information, and gives the newspaper the chance to accept, rather than simply being spied on without their prior knowledge. If a newspaper refuses the request, which the New York Times did famously in 2005, the paper is given a chance for their refusal to be heard in front of a judge before the decision to grant a subpoena for the information is made.
Yet President Obama destroyed what was essentially 40 years of government consistency when his administration was caught spying on the Associated Press in April of this year. Not only did the Associated Press have no idea the government wanted any information, something the Bush administration always made upfront and transparent, but the Obama administration wasn’t even looking for this narrow scope of information permitted under the law. Rather, the NSA had retrieved the phone logs, and performed phone tapping, on over 100 Associated Press reporters, analysts, and editors. The attack was so atrocious, and such a blatant disregard for the freedoms of privacy and the press, that both the traditionally liberal New York Times and the Reporters Committee for Freedom of the Press came out against the government, saying that the spying, “calls into question the very integrity,” of the Obama administration.
In 2006, then Senator Barack Obama told a committee hearing that, “Americans fought a revolution in part to be free from unreasonable searches, to ensure that our government couldn’t come knocking in the night for no reason,” but unfortunately in becoming President, Obama has traded this principle for the practicality and ease that comes with increasing government power. Through the authorization given to intelligence services to spy on Americans, through the overwhelming and obvious failure of the so-called system of checks against the National Security Agency, and through the destruction of 40 years of legal precedent and understanding between the White House and the media, President Obama has gone at lengths to deliberately make it all the easier for government to come, “knocking at your door for no reason.” I’ve never fully bought into the belief that, “our Founding Fathers know best,” considering that men born in the 18th century certainly don’t have all the answers to 21st century problems. However, there is one man in particular, Benjamin Franklin, whose words come to mind. “Those who sacrifice liberty for security deserve neither.” Under President Obama, Americans have been forced to sacrifice more of their constitutional liberties than ever before, under the hopeful assumption that we are becoming safer in the process. With the least amount of oversight, and the greatest amount of secrecy, President Obama has surpassed his predecessors in his willingness to retrieve personal information from Americans and American organizations. Senator Obama seemed to have believed in Franklin’s warning, but unfortunately, President Obama has spent the last 5 years ignoring it in every way he can.
