Letter from the US: Bad times for Big Brother

Thursday, January 16, 2014

A major rift has developed in the ruling class over the revelations by Edward Snowden of the huge spying by the NSA of every American and hundreds of millions worldwide.

On December 16, Richard Leon, a conservative federal judge appointed by George W. Bush, ruled that the vacuuming up of phone “metadata” of US citizens was most likely a violation of the Fourth Amendment of the US Constitution’s prohibition of unreasonable search and seizure.

Leon described the NSA program as “almost Orwellian”. The judge said James Madison, one of the drafters of the Constitution, would be “aghast” to learn that the government was encroaching on liberty in such a way.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single person for purposes of querying and analyzing it without prior judicial approval,” Leon wrote.

“Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

The judge also noted the government had failed to cite “a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an immanent attack, or otherwise aided the government in achieving any objective that was time-sensitive.”

This destroys the administration’s excuse for the vast spying program.

The judge ordered the NSA to shut down that program, but granted a stay of the order so the Obama administration can appeal it.

Panel criticism

Two days later, an advisory panel appointed by President Barack Obama issued a report that found “the current storage by the government of bulk metadata creates potential risks to public trust, personal privacy and civil liberty”.

This panel was not some left wing or even liberal group. It was composed of Richard Clarke, a former national security official under former presidents Bill Clinton and Bush; Michael Morell, former deputy director of the CIA; Cass Sunstein, who ran the office of Information and Regulatory Affairs in the Obama White House; Peter Swire, a privacy law specialist at the Georgia Institute of Technology; and Geoffrey Stone of the University of Chicago Law School.

The report’s recommendations included stopping the bulk collection and storing of phone data and reforming the structure of the Foreign Intelligence Surveillance Court (FISA), which currently hears only one side — the government’s — before rubber-stamping any requests for spying.

Obama is currently “studying” the report. He initially said some reforms could be introduced, but repeated the blatant lie that there was no evidence that phone surveillance powers were being abused.

The day before the panel’s report was released, Google and other internet companies publicly complained to Obama that the NSA programs were undermining US competiveness in offering cloud services or selling US-made hardware. These are now viewed around the world as tainted.

On December 29, the German publication Der Spiegel revealed new information about another aspect of the program. The NSA, with help from the CIA and the FBI, intercepts physical computers ordered online before they are sent on to their purchasers. The NSA then secretly inserts spyware.

In the words of Glen Greenwald, who has been the conduit for Snowden’s revelations, this enables the NSA “to own the machine”.

“So, no matter how much encryption you use, no matter how much you safeguard your communication with passwords and other things, this malware allows the NSA to watch every keystroke that you make, to get screen pictures of what you are doing.”

Then came the bombshell. The most important capitalist newspaper in the United States, the New York Times, ran an editorial in early January entitled, “Edward Snowden, Whistle-Blower.”

The editorial began: “Seven months ago, the world began to learn the vast scope of the National Security Agency’s reach into the lives of hundreds of millions of people in the United States and around the globe, as it collects information about their phone calls, their messages, their friends and contacts, how they spend their days and where they spend their nights.

“The public learned in great detail how the agency has exceeded its mandate and abused its authority, prompting outrage at kitchen tables and at the desks of Congress, which may finally begin to limit these practices …

“All of this is entirely because of information provided to journalists by Edward Snowden …

“Considering the enormous value of the information he has revealed, and the abuse he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service.

“It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have a hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

“Mr. Snowden is currently charged in a criminal complaint with two violations of the Espionage Act involving unauthorized communication of classified information, and a charge of theft of government property.

“Those three charges carry prison sentences of 10 years each, and when the case is presented to a grand jury for indictment, the government is virtually certain to add more charges, probably adding up to a life sentence that Mr. Snowden is understandably trying to avoid.”

The editorial took up Obama’s assertion last August that Snowden should come home to face those charges in court. “If the concern was that somehow this was the only way to get this information out to the public,” Obama said, “I signed an executive order well before Mr. Snowden leaked this information that provided whistle-blower protection to the intelligence community for the first time”.

The editorial demolished Obama’s claim. Snowden was employed by a contractor, not the NSA directly. “In fact, the executive order did not apply to contractors, only to intelligence employees, rendering its protections useless to Mr. Snowden.

“More important, Mr. Snowden told The Washington Post … that he did report his misgivings to two superiors at the agency, showing the volume of data collected by the NSA, and that they took no action …

“That’s almost certainly because the agency and its leaders don‘t consider these collection programs to be an abuse and would never have acted on Mr. Snowden’s concerns.

“In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not.”

The editorial concluded: “When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government.”

The White House and the Department of Justice rejected the NYT's plea for clemency out of hand.

International spying

Beside the domestic reaction to Snowden’s revelations, there is the international repercussion, which also underlies the rift in the ruling class.

The huge spying on citizens in Germany and France, the bugging of heads of state including of Germany, Brazil and Israel, the stealing of foreign companies’ economic secrets, can hardly be attributed to the need to fight “terrorism”.

As a result Washington’s standing in the world has been diminished and its international relations strained. That also worries more far-sighted sections of the ruling class.

It is no accident that last week the NYT ran a front-page story about another group of whistle-blowers who have just come forward. This concerns the break-in of an FBI headquarters in 1971 by Catholic anti-war activists committed to non-violent civil disobedience. They stole documents and released them to the press.

These were the first documents demonstrating the vast campaign, known as COINTELPRO, that the FBI waged against the Black, Chicano, anti-war and socialist movements. At the time, the FBI and White House launched the same rhetoric they and the NSA now raise against Snowden, that the revelations “endanger American lives” and “national security”.

In spite of a huge hunt by the FBI, these activists got away, melting into the hundreds of thousands of young anti-war people. Now their story is being told in a new book by the Washington Post reporter who broke the original story in 1971.

The statute of limitations on their “crime” has long since passed.

The parallels with Snowden are obvious. No wonder Edward Snowden now says: “I won!”

[Barry Sheppard was a long-time leader of the US Socialist Workers Party and the Fourth International. He recounts his experience in the SWP in a two-volume book, The Party — the Socialist Workers Party 1960-1988, available from Resistance Books. Read more of Sheppard's articles.]


From GLW issue 993