Diary: The Snowden Case
by David Bromwich
The London Review of Books
Most Americans who know anything about the National Security Agency probably got their mental picture of it from a 1998 thriller called Enemy of the State. A lawyer (Will Smith), swept up by mistake into the system of total surveillance, suddenly finds his life turned upside down, his family watched and harassed, his livelihood taken from him and the records of his conduct altered and criminalised. He is saved by a retired NSA analyst (Gene Hackman) who knows the organisation from innards to brains and hates every cog and gear that drives it. This ally is a loner. He has pulled back his way of life and associations to a minimum, and lives now in a desolate building called The Jar, which he has proofed against spying and tricked out with anti-listening armour, decoy-signal devices and advanced encryption-ware. From his one-man fortress, he leads the hero to turn the tables on the agency and to expose one of its larger malignant operations. Michael Hayden, who became the director of the NSA in 1999, saw the movie and told his workers they had an image problem: the agency had to change its ways and inspire the trust of citizens. But in 2001 Hayden, like many other Americans, underwent a galvanic change of consciousness and broke through to the other side. In the new era, in order to fight a new enemy, he saw that the United States must be equipped with a secret police as inquisitive and capable as the police of a totalitarian state, though of course more scrupulous. Gripped by the same fever and an appetite for power all his own, Dick Cheney floated the idea of Total Information Awareness (soliciting Americans to spy on their neighbours to fight terrorism), but found the country not yet ready for it. So he took the project underground and executed it in secret. Cheney issued the orders, his lawyer David Addington drew up the rationale, and Hayden at NSA made the practical arrangements. Eventually Cheney would appoint Hayden director of the CIA.
Americans caught our first glimpse of the possible scope of NSA operations in December 2005 when the New York Times ran a story by James Risen and Eric Lichtblau on massive warrantless surveillance: ‘Bush Lets US Spy on Callers without Courts’. The government was demanding and getting from the telecoms all the records it wanted of calls both to and from their customers. But the feed had been deliberately routed around the court set up by the Foreign Intelligence Surveillance Act to issue warrants for searches of this kind. The Times, at the urging of the Bush White House, had held back the story for a year, across the significant divide of the 2004 presidential election. Even so, James Risen, who protected the source for his leak, was threatened with prosecution by the Bush justice department, and under Obama that threat has not been lifted. As a candidate in 2007 and early 2008, Obama took an unconditional stand against data mining and warrantless spying, which he softened, well before the election, into a broad commitment to oversight of the existing programmes by the inspectors general of the relevant departments and agencies. Over the past five years, Obama’s reduction of the pledge to a practice had largely been taken on trust.
Such was the background of almost forgotten anxiety and suspended expectation when, on 6 and 7 June, the Guardian struck with its stories on US data mining and internet surveillance. The collection of ‘to’ and ‘from’ numbers and the duration of phone calls had, it turned out, not only continued but expanded under Obama. The government reserves in storage and taps (on occasion) the emails and internet activity of the customers of nine major companies including Google, Apple and Microsoft. The major difference from the Cheney machinery seems to be that general warrants are now dealt out, rather than no warrants at all, but general warrants don’t meet the requirement of ‘probable cause’ and the specification of the place to be searched and items to be seized. The Bill of Rights wanted not to make things too easy for the police. Now, on the contrary, the government gets the data wholesale, secure in the knowledge that a gag order prevents the corporate channels from speaking about the encroachment, and individual targets are sealed off from any knowledge of how they are watched. A lawlike complexion is given to the enterprise by the fact that the government doesn’t itself go into personal records without the consent of the citizenry; the records, instead, are held by private companies and then siphoned off by the government under legal compulsion.
Our communicative doings may be likened to a fishpond stocked with both actual and conjectural fish. The new protocol allows the government to vacuum up the entire pond, while preserving a posture quite innocent of trespass, since it means to do nothing with the contents just then. The test comes when a discovery elsewhere calls up an answering glimmer of terror or a terror-link from somewhere in your pond; at which point the already indexed contents may be legally poured out, dissected and analysed, with effects on the owner to be determined.
Edward Snowden made these discoveries, among others, while working as an analyst for the CIA, the NSA and the security outfit Booz Allen Hamilton (whose present vice chairman, Mike McConnell, is a former director of the NSA). Imperialism has been defined as doing abroad what you would like to do at home but can’t. Snowden, from the nature of his work, was made to recognise with growing dismay that what American intelligence was doing to terrorist suspects abroad it was also doing to 280 million unsuspecting Americans. The surveillance-industrial complex has brought home the intrusive techniques of a militarised empire, with its thousand bases and special-ops forces garrisoned in scores of countries. It has enlarged itself at home, obedient to the controlling appetite of an organism that believes it must keep growing or die. Of course, the US government cannot do to Americans what it does routinely to non-Americans. The key word in that proposition, however, is government. In fact, the same government can do all it likes with the data on American citizens, so long as it obtains a follow-up warrant from the FISA court. This court is always in session but its proceedings are secret; and qualified observers say it grants well over 99 per cent of the warrants requested. There is therefore no point at which the move by government from data collection to actual spying on citizens can come under genuine oversight or be held accountable.
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