Picture by Wikimedia
While the ability of government to obtain information about individuals has been greatly expanded, it is becoming increasingly difficult for individuals to obtain information about their government. Individual privacy is being eroded, while governmental secrecy is growing. Both trends are highlighted by the dramatic action of Edward Snowden to make public, in some detail, how various secret government agencies have been using modern technology to eavesdrop on people all over the world, including American citizens on US soil. One consequence of the eavesdropping is to make many pubic figures vulnerable to blackmail by the NSA, FBI, etc. The intense assault being mounted on whistleblowers is weakening a vitally important check on the abuse of governmental power.
It is becoming increasingly clear that the US government is simultaneously assaulting both the openness of government that is an essential pillar of democracy, and the privacy of citizens. Since the end of WW II, governmental secrecy has been rapidly growing, as measured by the continued expansion of the amount of information classified as secret, and the number of people in and out of government “cleared” to access secret material [Unger]. (A parallel trend is the increasing tendency for private corporations to keep secret such information as the ingredients and origins of their products.) At the same time that citizen knowledge of what the government is doing is being greatly reduced, government access to information about the affairs of individual citizens is being significantly expanded.
An important part of the process of snooping on communications is the mechanism used to give legal cover to various forms of governmental eavesdropping. This consists of warrants issued by an unusual kind of court.
FISA: Foreign Intelligence Surveillance Court
The ostensible function of the FISA court [Wikipedia-FISA] (established in 1978) is to issue warrants requested, usually by the National Security Agency (NSA) or the FBI, to surveil suspected foreign agents within the US. In practice today, as will be made evident below, the subjects of FISA approved surveillance operations consist mainly of US citizens. Foreigners outside of the US are also often included.
The FISA court consists of 11 judges, appointed for 7 year terms, by the chief justice of the US Supreme Court. Unlike every other judicial appointment process that I am aware of, there is no ratification process. A warrant is issued by a single judge on the basis of an agency request. If a request is denied, the agency can appeal to the Intelligence Surveillance Court of Review, a 3-judge court whose members are also appointed, without ratification, by the Chief Justice. Unlike conventional warrants, a single FISA warrant can cover large numbers, sometimes millions, of people [Katikala]. The Fourth Amendment concepts of probable cause and particularity have been scrapped.
The FISA court behaves as a rubber stamp. Since its inception it has denied only 11 out of more than 33,900 requests for warrants. None of the over 5100 requests made since 2009 have been denied.
There is no mechanism, adversarial or otherwise, for ensuring that requests for such warrants have been properly made, and that they are used as specified. The entire process is enshrouded in secrecy. The chief judge of the court, Reggie B. Walton, recently stated that the court has no way to verify that the information given to them by the executive branch is accurate, or that the government is complying with their rulings [Leonnig]. Since only the executive branch has knowledge of and access to the FISA court, the principle of checks and balances that we learned in school is fundamental to American government is ignored in this realm, as is the concept of open government.
What about congressional oversight?
Did I overlook the claim that NSA and other surveillance activity is being monitored by congress? Not really. Ordinary members of congress are told no more about what is going on than what is known to the general public. When they try to get more information, they are stonewalled [Greenwald].
Even members of the House and Senate Intelligence committees are unable to rein in the intelligence agencies. They are prohibited from speaking out publicly when they learn about, or suspect, abuses. Referring to the Patriot Act as it pertains to surveillance, Intelligence Committee members, Senators Ron Wyden and Mark Udall complained to Attorney General Holder that, “…there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows.” [Holan]
In effect, there is no check on the executive branch’s claims that its surveillance operations are justified by considerations of national security. All efforts to contest such claims in specific court cases have been blocked by arguments that litigation on such matters would jeopardize national security by exposing vital state secrets.
Are whistleblowers good or bad?
A principal means by which excessive governmental secrecy can be countered is action by government employees or contractors at various levels to make public important material that it unjustifiably being kept secret. Such so-called whistleblowers have always been an important check on abuse of power, corruption, and incompetence.
During the 2008 presidential campaign, the Obama-Biden team pledged to protect whistleblowers [Obama-08]. Their campaign statement on this topic said:
Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled as they have been during the Bush administration. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.
A more recent statement by the Obama Administration on this topic [Ellman] (February 22, 2013) reads:
With the passage of the Whistleblower Protection Enhancement Act, and President Obama’s landmark directive extending whistleblower protections to the intelligence and national security communities for the first time, Federal workers who expose waste, fraud, and abuse of authority in government will receive the protection they deserve.
But the actions of the Obama administration have been rather different from what one might have expected in the light of the above quotations, which are not unique. During the 2012 election campaign an Obama campaign statement [Obama-12] dealing with this subject proudly (and accurately) proclaimed:
President Obama has done more than any other administration to forcefully pursue and address leaks of classified national security information. Here are the facts:
- The Obama administration has prosecuted twice as many cases under the Espionage Act as all other administrations combined.
- Under the President, the Justice Department has prosecuted six cases regarding national security leaks.
- Before he took office, federal prosecutors had used the Espionage Act in only three cases.
The gap between the rhetoric and actions of the administration is astounding–and dismaying. Those who performed what were characterized rhetorically as “acts of courage and patriotism” are, in practice, treated as “leakers”, and blowing the whistle by revealing “secret” information to journalists (and thereby, to the public) is equated with espionage–the passing of significant national security information to enemies of the country [Masnick-leakers]. Along the same lines, the government has also attacked journalists who are receptive to information from whistleblowers [Todd].
In this schizophrenic context, it is interesting that, altho frequently praising whistleblowers in general (as in the first two of the above quotes), Obama, as president, has never found good words for an actual person who has blown the whistle [Sledge]. ….