How Secrecy Stops Debate on Secrecy

Americans got a rare glimpse into the breadth of U.S. government surveillance of their communications with new revelations that phone and Internet providers have been turning over vast amounts of data to be mined for “terrorism” investigations, an issue discussed by human rights attorney Shahid Buttar with Dennis J Bernstein.

By Dennis J Bernstein

Glenn Greenwald, reporting in the U.K. Guardian this week, revealed a secret U.S. court document ordering Verizon, one of America’s biggest telecom providers, to turn over telephone records of millions of U.S. customers. It also seemed clear that other telecom companies had received similarly broad subpoenas.

On Friday, President Barack Obama insisted that the collected data was limited in nature because it did not include the actual content of the calls, and he maintained that this tradeoff of privacy for security was necessary if the American people wanted to be protected from acts of terrorism. Further, he argued that Congress and the Judiciary had oversight of the program.

However, civil liberties advocates challenged the government’s assurances, noting that the secrecy that has enveloped such programs has prevented any serious debate about the tradeoffs. Dennis J Bernstein discussed this issue with human rights attorney Shahid Buttar, executive director of the Bill of Rights Defense Committee.

DB: What exactly happened here. Is this really a big deal?

SB: Sure. This is a big deal particularly because the disclosure of this document and the document is a secret court order issued by the FISA court giving the FBI the authority to monitor and spy on millions of Americans, at once, in a single order, under section 215 of the Patriot Act. This document reveals for the first time in evidence what whistleblowers and even members of Congress have long said — specifically that the government is essentially waging an all out war on the rights of we, the American people.

Senator Ron Wyden, in particular, a Democrat from Oregon, has said that Americans would voice wide spread outrage if we knew what the government was doing, in secret, under the Patriot Act. And while this particular order did not allow for content to be captured by the government, other surveillance programs do, outside the context of this particular order, this is a single order that is the tip of the iceberg. And even the tip is terrifying. The whole iceberg we haven’t even come close to grappling with yet.

DB: I notice that a whistleblower from that agency, Thomas Drake, who I believe was just vindicated. He says he’s been hollering into the deep, dark shadows of these surveillance states since October 2001, and then via the press starting 2006 about this Orwellian threat. He goes on, he says about this today about Verizon: “Now we have an order for all call records for millions, upon millions of Verizon subscribers without probable cause, just because the government wants them. That’s about profiling.”

Talk a little bit about the dangers of this. What do you suppose he means by profiling? And what doors this opens?

SB: So, in terms of the profiling comment, if anything I would say that it’s the inverse of profiling. Profiling is when you select people for arbitrary scrutiny, perhaps on the basis of our race, or our religion, and that is illegitimate. This is equally illegitimate for the opposite direction. People have not been selected, at all. It’s just a blanket dragnet. So dragnet versus profiling. They’re both offensive but for somewhat opposite reasons.

And in particular, what he’s talking about in terms of the potential dangers, simply the possibility that this sort of power could be misused, in the past was sufficient reason for we the people in the United States not to accept these kinds of programs. And I have heard some people suggest that, “Well this program is supposedly helpful for national security.” But that’s not actually the point. Because even if it were helpful for national security, which remains unconfirmed, no one’s actually given anyone the facts in the public to confirm that talking point the government officials have been saying. Even if it were helpful for security, however, there are grave threats to democracy that this kind of power presents.

And it goes like this: in the very recent past the government has already gone after the Associated Press, the Occupy Movement and the Tea Party. Right? So it doesn’t matter where you are coming from on the political spectrum. If you are an activist, you are a target. You don’t even have to be an activist. You can just be a member of the press, and you are target.

And if that’s the case, the ability of the government to conduct pervasive, dragnet surveillance of this sort, enabling agencies like the FBI or the NSA to map social networks, creates the very real, I dare say, inevitable likelihood of these powers being bent to nefarious purposes. That’s why courts are important, to make sure that people in the Executive Branch aren’t just pursuing personal piques or political crackdowns. That they are actually using their authority in the ways that they are supposed to. And it’ is precisely because the secret FISA court is a mere rubber stamp, that we can’t have any confidence of that kind of good-governance practice in these surveillance programs.

DB: Now, again, it’s important to point out that this happens under a so-called liberal administration, under a Democrat. But it does appear that this Democrat, that this president is hell bent on an intensive program to suppress any open flow of information and seriously punish whistleblowers who try and break this seal, break this open.

SB: Absolutely. And it’s a whole other reason to be concerned about this in the context of this disclosure that most news outlets, quite frankly, haven’t picked up on. And, I’m glad that you seized upon it. We know about this document because some whistleblower somewhere is risking their career so that we, the public, can know what is happening.

And at the moment, the Obama administration is already our nation’s far-and-away most aggressive anti-press administration. Right? There are more national security whistleblowers who have faced prosecution in the last five years than in the entire preceding 225-year history of the Republic. And in that context, I think it is fairly predictable that whoever leaked this document to Glenn Greenwald at the U.K. Guardian may themselves become an object of prosecution. I think it was just two weeks ago, that the President spoke in a very welcome speech, with some great rhetoric, about the need for transparency and checks and balances, to keep the government honest.

That rhetoric flew in very sharp contrast with the reality, and while the President, very appropriately suggested, though ironically given the FBI’s assault on the Associated Press, while he suggested support for a reporter’s shield law, what he did not discuss — and what this document makes very clear we need — is a robust protection for whistleblowers as well as members of the press to insure that Congress, the courts, and the public have the vital information we need to explore and have an opportunity to investigate whether or not these kinds of powers are being misused.

DB: Just to read a little bit more about what’s going on, Glenn Greenwald writes: “Under the Bush administration, officials and security agencies had disclosed to reporters the large-scale collection of call records data by the NSA but this is the first time significant and top secret documents have revealed the continuation of the practice on a massive scale under President Obama.”

Which supports what you were just saying, Shahid Buttar. I know, as an attorney, and somebody who works with the Bill of Rights Defense Committee that this really is a battlefield of free speech. Now, you were talking about whistleblowers, and this kind of security that we are seeing here, and this kind of attempt to shut down any independent information coming from whistleblowers and government officials, well, obviously the Bradley Manning trial is show-cased here in how the administration has acted here to suppress information that is clearly, has clearly been shown to be in the public interest. Do you want to talk about that connection?

SB: Absolutely. Bradley Manning, I think, is exhibit A, in the government crackdown on whistleblowers. And let’s not forget, not only was he detained, and is now facing prosecution, he was tortured, despite having done nothing wrong. He simply, unlike most people in the intelligence apparatus actually complied with his responsibility under international law, to reveal evidence of war crimes.

The first thing that WikiLeaks released from Bradley Manning’s disclosures was a video of U.S. service members gunning down journalists. That’s absolutely something we need to know about. That is not an appropriate secret. And it’s interesting, anytime you see claims of government secrecy, the first thing that pops into my head is that someone is trying to cover something up. Right? Secrets are not secrets for no particular reason and most of the time we see blatant over-classification, where most of the classified documents aren’t classified for any legitimate purpose. And we see this time and time again.

The Reynolds case before the Supreme Court which established the States Secrets Privilege, the first time the courts basically came up with this notion that they would defer to executive claims of secrecy. That case itself, ended up being a cover-up. And many of the cases, at least since then, are similar. We’ve seen the States Secrets Privilege used to suppress evidence of corporate complicity in torture. We’ve seen the States Secrets Privilege used to suppress evidence of mass NSA warrantless wiretapping of the sort not unlike revealed in this document this week to the U.K. Guardian. We’ve seen the States Secrets Privilege used to hide evidence of FBI infiltration of mosques around the country.

And then the last thing just to complete the equation is that Congress has laid down on the job and is not conducting the assertive, aggressive oversight that is necessary to bring these issues into the public view. The Senate Intelligence Committee was founded because in the 1970’s there was a several-year investigation lead by Senator Frank Church that uncovered decades of constitutional abuses by the FBI, the CIA and the Pentagon, spying on the American people.

The Senate Intelligence Committee — today chaired by Senator Dianne Feinstein from California — like the secret FISA court is basically a rubber stamp. And that is not its job. Its job is supposed to be to check and balance the Executive. But there’s never been even an attempt at even uncovering the facts in this context. Even when drone strikes were in the headlines and Senator Rand Paul was filibustering the nomination of the CIA director, even then the Intelligence Committee was settling for just getting memos. You know, I’m passed the point of being interested in memos, like let’s see some facts.

The reason this document is such a big deal is that this is the first time anyone has seen any facts about the government actually monitoring millions of us, in mass, without any pretext of justification. And I think it is a clarion call for all three branches of the government, and the media, and, most importantly, we the people of the United States to raise our voices and demand that our rights be restored, and that these illegitimate surveillance operations either be ended, or at least finally subjected to transparency and oversight.

DB: I mentioned Thomas Drake earlier. He was a senior executive of the U.S. National Security Agency. He essentially faced espionage [charges], was threatened and prosecuted, almost on espionage charges, for what? For revealing this information…

SB: Fraud and waste … by the Pentagon. I mean not even misinformation. What he revealed was true and what he revealed related to fraud and waste. What he revealed had in no way any operational benefit to our nation’s enemies and yet, exactly, he was prosecuted…

DB: …to the full extent of the law. Unbelievable!

SB: Even beyond it. I mean beyond the full extent of the law. He was prosecuted so viciously that at his sentencing hearing the federal judge who was sentencing him was scolding, not Thomas Drake, but the Justice Department for wasting taxpayer funds and years of everyone’s lives chasing someone who had done nothing wrong and merely performed his public duty. And that was a federal judge talking back to the prosecutors basically saying this is ridiculous why are we wasting our time chasing this man around? You know, he’s a national hero, not a criminal.

And the criminals unfortunately are the agencies, and I dare say, the administration and Congress and the courts that have all failed to mind the oaths of office to defend the Constitution against all enemies, foreign and domestic. The biggest enemies of the Constitution are, unfortunately, the FBI, the NSA, Congress, and apparently, the Obama administration. And I should add the secret FISA court in there too.

DB: First, say a little bit more about the FISA court because we hear that a court gets a chance to be a part of these secret proceedings and they are supposed to mitigate our concerns in terms of the secrecy, and then say something about where you think this might be going, and what you’re watching very closely.

SB: So the secret FISA court is not a court, at all. And there is this notion, this trope, people are talking about, “Oh, this is reviewed by the courts.” It’s not a court if it’s secret, right? Courts are premised on the idea that a decision is transparent, and that it can be reviewed subsequently by a later court that would be able to compare the facts before it, to the facts before the other court.

But when the decisions are secret, right? That can’t happen. It’s not jurisprudential legal decision-making. It’s political rubber-stamping. And we see that confirmed by the particular order that was released to the U.K. Guardian. There’s no conceivable way in which millions of Verizon customers are appropriately just up for grabs for the government to look at.

And let’s be clear here, it’s not just Verizon. Verizon happens to be the one company from which we’ve gotten the leaked document. Right? All of the telecom companies are up to their necks in this. I mean, to our knowledge, there is one company that has resisted a national security letter, separate tool, same kind of abuse. No one knows who it is, because if they reveal themselves, they would be prosecuted. There’s a lot of speculation that it’s Credo Mobile, what used to be Working Assets. But neither the company nor anyone else can confirm that.

So it’s not just Verizon, it’s pretty much the entire industry, is in bed with the FBI and the NSA. And remember in 2008 when the Foreign Intelligence Surveillance Act was amended, these are the 2008 FISA amendments one of the central issues then “Would Telecom companies get immunity?” And Congress, at the time, gave corporations a massive subsidy in the form of a legal amnesty for all of their abuses against the American public. Just the light … the tiniest bit of which we’ve seen in this document, disclosed to Glenn Greenwald.

You also asked what may be coming next, and what we’re paying attention to. You know, at the very least the Senate and House, intelligence and judiciary committees should all conduct investigations. We’ve seen that the intelligence committees are basically captured by the agencies, and we can’t expect meaningful review from them. The judiciary committees are nominally more independent. Even if they don’t have oversight over the NSA, they do have oversight over the FBI. And they certainly have oversight of any government agency that systematically violates the constitutional rights of the American people. And there must be wide-ranging, long overdue, furious, fact based — not just legal analysis — investigations by these committees.

In addition, there has to be some long overdue transparency at the FISA court. You know, the latest issue with secret courts was Senator Feinstein, to her vast discredit, suggesting more secret courts, particularly to evaluate the uses of drones to kill Americans abroad. But we see confirmed by this document, that secret courts aren’t actually a check and balance on Executive abuses. They are political rubber stamp.

And so, reform to that process, to bring those court opinions into the public would be nice to see. I don’t have any hope of that happening. I would, quite frankly, like to see some people get fired from the NSA and the FBI. And the statutes empowering those agencies to be revisited. Every time Congress gets to look at this stuff, you know, the Patriot Act, and then re-authorize, and extended at least three times since the Obama administration came into office. The last time Congress looked at the Foreign Intelligence Surveillance Act, it extended it for five years.

Now there has got to be some meaningful process on these bills, instead of just Congress, like the FISA court, rubber-stamping them. Right? Nobody wants to actually force the government to justify these surveillance measures because the intelligence officials say “They’re necessary to protect the country against terrorism.”

We don’t need these kinds of measures. They don’t actually help provide security and they do, in fact, lay waste to the constitutional rights that have long made our country great. I mean the reason we have transparency at the root of democratic accountability, the reason that democracy and transparency are so tied together, is because secret government is inevitably a pathway to oppression. And the more secrecy that emerges in the counter-terrorism regime, the greater, and greater risk we have of slipping into an authoritarian situation.

And the fact of the matter is that none of this should surprise us. President Eisenhower warned of this, 60 years ago. Right? I mean, this is what a military-industrial complex looks like. And we’re seeing it now turn its fangs on the American people. The Defense Department has already, for instance, tortured people around the world; the CIA as well. And, you know, what is the result of that? Changes to the law to give the agencies the authority to hide evidence of their criminal trail.

When the NSA started violating the Foreign Intelligence Surveillance Act to spy on Americans in the years following 9/11, what happened? Congress bent over backwards to change the law, to give the agency the opportunity to continue those abuses. And the idea that we’re going to change the law to accommodate the agencies, instead of reining in the government programs to comply with the law … that’s a fundamental issue here, that we, unfortunately, see reoccur.

And I do think that what’s at stake here is, quite literally, whether we will live in a free country or not. And we can think we live in a free country, but when the Associated Press is essentially invaded in the dead of night by the Justice Department and its sources identified through covert espionage tactics, essentially, we’re not free. When we see millions of Americans monitored by our own government, using our own taxpayer dollars without any individualized suspicion required by the Constitution. We’re not free when we see activists groups infiltrated by the FBI, and local police, around the country. We’re not free.

And we can sing all the anthems at baseball games that we want. But the idea that America leads the free world … I think it’s getting harder and harder to sustain. Even the claim that we are part of the free world, I think, is a stretch, and this document that was released to the U.K. Guardian, again, is just the initial case in point. And, unfortunately, I think there’s a lot more there, to be found, should we ever have an opportunity to examine the rest of the iceberg.

Dennis J Bernstein is a host of “Flashpoints” on the Pacifica radio network and the author of Special Ed: Voices from a Hidden Classroom. You can access the audio archives at www.flashpoints.net.