Some of the newly disclosed documents leaked by Snowden to The Washington Post and Britain’s Guardian newspaper describe the safeguards which the National Security Agency is supposed to take to keep Americans from losing their privacy in its massive surveillance net. Provided that it follows the specified safeguards, the NSA is also permitted to keep the data on citizens communications for an extended period of time for later analysis.
The current procedures governing the NSA’s computer surveillance programs were authorized by Congress in 2008 in an amended version of the 1978 Foreign Intelligence Surveillance Act that does away with the need for the NSA to obtain an individual warrant to monitor each suspect. Under Section 702 of the law, added in 2008, the FISA court can and routinely does authorize the NSA to gather all of the e-mails in the US to search for criminal activity and espionage abroad as long as the specified safeguards are followed. Congress authorized the data collection program only after a heated debate about the degree to which the government was expanding its surveillance authority and whether the new law provided sufficient protection for Americans’ privacy.
REVISED LAWS EXTEND THE REACH OF SURVEILLANCE
The FISA court issues a certificate, good for one year, that allows the NSA to order a US Internet or phone company to turn over a staggering amount of customer data which, taken together, reveals what each of us does, thinks and believes. Section 702 removed the need to seek individual court orders for each surveillance because the explosion of new communications technologies required authorities to act much more quickly to get the information they sought. According the current law, a US citizen may not intentionally be targeted, but because of the technologies involved in collecting surveillance, the computer communications of millions of other Americans are also swept up “incidentally” while specific foreigners are being legally targeted for surveillance by the NSA.
The NSA’s separate telephony metadata collection program has also been expanded by changes in the law made under Section 215 of the Patriot Act, passed in response to the 9/11 2001 terrorist attack. It expanded the original FISA law to give the government access to any business or personal phone records as long as it is part of an investigation to protect against terrorism or spying.
However, Republican Congressman James Sensenbrenner, who voted for Section 215 of the Patriot act and section 702 of the Amended FISA law denies that he and his fellow legislators had intended to enable such a wholesale expansion of the NSA’s right to collection our personal information, intentional or not.
SURVEILLANCE HELPING TO PREVENT TERROR
Since Snowden’s unauthorized disclosures, the Obama administration and various counterterrorism and intelligence officials have vigorously defended the critical importance of the NSA surveillance programs to national security. NSA Director Keith Alexander a US Army general who has also has been in charge of the US Cyber Command since 2010, testified before the House Intelligence Committee last week that the surveillance programs were instrumental in foiling more than 50 terrorist plots in the US and abroad since they began five years ago. He also defended the NSA as a “disciplined operation” that “protects the privacy and civil liberties of the American people.”
The White House says that President Obama has recently ordered Director of National Intelligence (DNI) James Clapper to declassify more information related to the NSA’s spy programs to reassure the public that the program is worthwhile. Such disclosures would obviously have been more effective in calming public fears if they had come before Snowden’s information on the NSA was published, rather than afterwards, in a desperate attempt to shore up the government’s damaged credibility on the privacy issue.
HOW THE FEDS BOTCHED THE EFFORT TO CATCH SNOWDEN
Meanwhile, controversy continues to swirl over the clumsy way the administration has gone after Snowden following the publication of his NSA revelations.
After Snowden made good his escape from Hong Kong to Moscow, the administration came under intense criticism for its botched efforts to get Hong Kong to detain him for extradition. Among other things, after filing criminal charges against Snowden, the administration failed to immediately cancel his passport, or to ask Interpol to post a so-called “red notice” to prevent Snowden from travelling to another country.
Harvard law professor Alan Dershowitz said that the Obama administration was also “stupid” to charge Snowden with espionage since that is considered to be a political crime, which would have given Hong Kong officials a legitimate excuse to refuse the US request for his extradition.
Dershowitz said that, “if they had just indicted him for theft and conversion of property – an ordinary crime – the chances of getting him extradited would have increased dramatically.”
Dershowitz noted that espionage is a difficult charge to prove in criminal court. “Espionage requires an intent to hurt the United States to help another country,” Dershowitz said, and it was not clear that Snowden intended harm. “He has the intent probably to help the United States. Whether or not you think he’s misguided or not, that’s probably his true intent,” Dershowitz explained.
“He’s not a hero,” Dershowitz said of Snowden. But “he’s certainly not a traitor under the technical terms of the crime of treason.”
SNOWDEN TAKEN IN BY MOSCOW
But the Obama administration went ahead with filing the espionage charge, and then tried to play diplomatic hard ball with Hong Kong officials, warning them against slow-walking the US extradition request.
Nevertheless, the initial US request for the extradition was rejected by Hong Kong officials on the vague grounds that it was “legally insufficient.” The issue then quickly became moot, when Snowden was allowed to board a Russian airliner to fly to Moscow Sunday, taking the whole matter out of Hong Kong’s jurisdiction.
Analysts believed that Hong Kong officials and the Chinese government were happy that Moscow took Snowden off their hands. He had already provided the Chinese with a public relations victory by accusing the NSA of hacking into Chinese computer networks. They did not want his continued presence to in Hong Kong to create more tension in their relations with the US.
In response to the charges by Snowden that the US has been conducting cyber warfare against several foreign nations, including China, General Alexander of the NSA said that any aggressive action by members of his cyber command would have to be authorized first by the Secretary of Defense and the President.
Until Snowden made his charge that the US was conducting cyber warfare against China, the US government had been accusing China of launching massive attacks on all kinds of US computer networks.
Asked whether he thought that the US is losing the cyber war to China, Alexander said, “I think our nation has been significantly impacted with the theft of intellectual property by China and others. That is the most significant transfer of wealth in history.”
Once it became clear that Snowden had escaped from Hong Kong and fled to Moscow, US elected officials began accusing Russian Vladimir Putin of deliberately manipulating the situation.
Senator Charles Schumer charged that Russian President Vladimir Putin “almost certain knew of, and likely approved,” Snowden’s ticket to Moscow. He said that the incident will further strain the US-Russian relationship.
“Putin always seems almost eager to stick a finger in the eye of the United States – whether it is Syria, Iran and now of course with Snowden,” Schumer said in a Sunday interview, and added that China also had a hand in the plot to hide Snowden’s whereabouts and ultimate destination.
Senator Dianne Feinstein, the Democrat chair of the Senate Intelligence Committee, said Snowden needed to be caught and brought back for to the US because the secrets he was carrying could do a lot of damage to US interests. “I think we need to know exactly what he has. He could have a lot more that may really put people in jeopardy.”
Republican House Intelligence Committee Chairman Mike Rogers said that Snowden’s efforts to seek asylum in totalitarian nations hostile to the US undermined his claim to be a fighter for freedom of information.
Rogers added that if Snowden “really believes he did something good, he should get on a plane, come back [to the US] and face the consequences of his actions.”
SNOWDEN STAYS IN MOSCOW
Snowden did not take Aeroflot Flight 150 from Moscow’s Sheremetyevo airport to Havana Monday, even though he had a ticket and a reserved coach seat. This further deepened the mystery about his ultimate destination and the role the Russians were playing to help him remain free.
It had been believed that, with the help of the WikiLeaks organization, he would change planes again in Havana to seek asylum in the anti-US nations of Ecuador or Venezuela. Ecuador has confirmed that it received an asylum request from Snowden and provided him with travel documents that would allow him to travel there even though his American passport has been revoked.
But Snowden never boarded the plane in Moscow, to the disappointment of reporters who had booked tickets on the same flight. Russian officials initially denied that they had any idea about where Snowden was, which was hard to believe, but later, they confirmed reports that he was in a transit area for international passengers changing planes in the Moscow airport.
RUSSIAN OFFICIALS REJECT US DEMANDS
On Tuesday, the Russians pushed back at US criticism for allowing Snowden to stay there temporary sanctuary. Russian foreign minister Sergey Lavrov said of Snowden, “he didn’t cross the Russian border, and we consider the accusations that Russia had violated US law [by giving him sanctuary] as completely ungrounded and unacceptable.” Lavrov complained about a US conspiracy accompanied by threats against Russia, and concluded, “there are no legal grounds for this kind of behavior from American officials toward us. We have no connection with Mr. Snowden, nor with his relation toward the American justice system, nor with his movement around the world. He chose his own route and we, like most of those here, found out about this from the press.”
President Putin was more specific about Russia’s position towards Snowden. Noting that he had not broken any laws while on Russian soil, Putin said that, “Mr. Snowden is a free man. The faster he chooses his ultimate destination, the better for us and for him.”
With regard to US demands that Russia turn him over through extradition, Putin said, “we can only send back some foreign nationals to the countries with which we have the relevant international agreements on extradition. With the United States we have no such agreement.”
Putin also denied that Russian security services had interrogated Snowden about the secrets he took, or intended to do so.
Apparently, the Russians are willing to keep Snowden safe and out of sight, as long as it serves their purpose of further embarrassing the American government. In reaction to Russian complaints about the US demands, Secretary of State Kerry told reporters, “We are not looking for a confrontation.”
PRESSURE ON THE WHITE HOUSE
White House spokesman Jay Carney jumped into the extradition controversy Monday after he was peppered by questions from reporters at the daily press briefing over the failure of the US government to prevent Snowden from escaping Hong Kong Sunday.
Carney said that Hong Kong’s refusal to detain Snowden will result in “a setback in terms of efforts to build mutual trust” with the US. He added that “it is our understanding that Mr. Snowden remains in Russia” and that “we have asked the Russians to look at the options available to them to expel Mr. Snowden back to the United States.”
Carney then launched into an attack on Snowden’s credibility, saying, “Mr. Snowden’s claim that he is focused on supporting transparency, freedom of the press and protection of individual rights and democracy is belied by the protectors he has potentially chosen: China, Russia and Ecuador. His failure to criticize these regimes suggests that his true motive throughout has been to injure the national security of the United States not to advance Internet freedom and free speech.”
Earlier Monday, Secretary of State John Kerry demanded that Russia immediately send Snowden back to the US to stand trial out of respect “for the standards of law.” Kerry noted that the US had agreed to extradite seven individuals wanted by the Russian government and demanded Russian now reciprocate with the extradition of Snowden on criminal charges.
President Obama has been noticeably uninvolved personally in the government’s efforts to apprehend Snowden, even after he escaped from Hong Kong. This had led Republican Congressman Peter King of New York to ask why Obama didn’t take a harder line with the Chinese authorities who ultimately control the semi-autonomous region of Hong Kong. “I hate to be in the middle of a crisis second guessing the president, but where is the president? Why is he not speaking to the American people? Why is he not more forceful in dealing with foreign leaders?” King asked on Monday.
US BECOMING A HELPLESS GIANT
The rejection of US demands for Snowden’s extradition by both Hong Kong and Russia, and the bungling of the effort by the administration on both the legal and diplomatic fronts only adds to the administration’s embarrassment. More than ever, the US seems to be playing the role of the helpless giant which had lost the respect of the other nations of the world. They are obviously unafraid to thumb their noses at US attempts to bully them into turning over the fugitive to face justice for his crime in an American court of law.
For all of its massive surveillance capabilities, the US has proven helpless to stop Snowden from eluding its grasp, stealing and then releasing its valuable secret information to the press, or even figuring out where in the world he is likely to turn up next.
Meanwhile, civil rights and privacy advocates remained deeply concerned with the disclosures by Snowden about the extent to which the government, through the NSA has invaded the privacy of American citizens.
“These documents confirm what we have feared all along, that the NSA believes it can collect Americans’ international communications with little, if any, restriction,” said Alex Abdo, a lawyer with the American Civil Liberties Union. “Its procedures allow it to target for surveillance essentially any foreigner located abroad – whether or not they’re suspected of any wrongdoing, let alone terrorism.”
Laura K. Donahue, a professor on national security and the law at Georgetown University claims that the way that the revised FISA law has been applied by the NSA violates the Fourth Amendment’s guarantee against unreasonable search and seizure, and increases the danger of abuse of power by the executive branch of government.
UNINTENDED CONSEQUENCES OF CORRECTING OLD ABUSES
She notes that the intelligence community has a long history of overreaching in the name of national security. In the 1940s, the NSA began collecting large amounts of international telegraph traffic that was unrelated to specific foreign espionage targets. From 1940 to 1973, the CIA and the FBI operated a covert mail-opening program that violated federal laws protecting the privacy of the US Mail. They also routinely conducted warrantless surreptitious break-ins of offices and private homes to photocopy or steal business records and personal documents. An Army intelligence program placed more than 100,000 people under surveillance, including legislators and civil rights leaders.
Congress passed the original 1978 FISA legislation to bring these intelligence collection activities under rigorous legal oversight. But 35 years later, the NSA is using an amended version of the law to justify more invasive and far reaching surveillance programs than the authors of the original FISA law had ever dreamed of.
VIOLATING THE EXPECTATION OF PRIVACY
The US Supreme Court has long held that wherever an individual has a reasonable expectation of privacy, government may conduct a search and seizure only after obtaining a warrant, supported by probable cause and issued by a judge. The warrant must also specify the places to be searched and items to be seized.
The Supreme Court has also said that Section 702 of the FISA law does not violate constitutional Fourth Amendment rights as long as those under surveillance are foreigners abroad. But privacy experts like Donahue argue that the Supreme Court has never approved the collection of vast amounts of information on US citizens, without a warrant and then allowed its use in a criminal case.
That is why federal prosecutors have been reluctant to use information gathered on US citizens through Section 702 surveillance against US citizens in criminal trials. They fear that a defendant’s lawyer might challenge the constitutionality of using such evidence in a trial, and that the challenge might be upheld by the Supreme Court.
The FISA court is supposed to act as a check against unreasonable surveillance, but privacy experts point out that in practice, it has served as a rubber stamp for prosecutors. Over the past five years, out of nearly 8,600 applications for warrants for secret surveillance, only two have been denied by the FISA court.
That is why civil rights advocates like Donahue want Congress to revise Section 215 of the Patriot Act and Section 702 of FISA to establish more responsible limits on secret government surveillance.
WHAT DO THE NSA’S FILES SAY ABOUT YOU?
The NSA insists that it follows elaborate procedures to make sure that its surveillance is not targeting US citizens and legal residents. It says it always checks a database of phone numbers and e-mail addresses of everyone believed to be living in the United States to avoid conducting and illegal domestic surveillance. The full list of limitations on NSA surveillance is spelled out in what is called a minimization document, and some of it is still secret.
But once it meets those limitations, the NSA is free to keep the data and communications it has scooped up from Americans for up to five years.
These disclosures make it clear that President Obama misled the American people when he reassured them after the Snowden documents were first published that the NSA could not listen in on their phone calls or read their emails. In fact, the NSA can and does incidentally routinely sweep up all domestic communications while looking to target foreigners.
The NSA’s justification for collecting all this electronic data is its limited ability to “filter communications” that it gathers from networks. The NSA claims that while it may not be looking for information on specific US citizens, once that data is in its possession, the NSA is free to keep it on the chance that it may prove useful in a later investigation. Therefore, every American should be on notice that somewhere in the NSA data banks there is a file with all of their personal computer data and phone records in it which the government can easily access whenever it finds a suitable legal excuse.
THE PRIVACY BOARD THAT NOBODY EVER HEARD OF
While admitting that NSA surveillance is more intrusive than he had initially indicated, President Obama is still reassuring Americans not to worry about the government invading their privacy.
Last week, the White House announced that Obama held his first ever meeting with the Privacy and Civil Liberties Oversight Board (PCLOB) – a five member panel charged with ensuring that the executive branch of government balances privacy and civil liberties needs with its national security efforts.
At the meeting, the members of the board promised Obama that they would thoroughly review how the secret NSA surveillance programs monitor Americans’ phone and e-mail traffic to come up with new recommendations for protecting the privacy rights of citizens and national security.
After the meeting, the board’s chairman, David Medine, a former associate director of the Federal Trade Commission, said he had been promised a full classified briefing by DNI Clapper on the NSA surveillance programs. He expects the board to hold its first public meeting on July 9, and then to issue a report with specific “conclusions and recommendations,” which, however, will not be legally binding on the Obama administration. The board’s other four members include a technology expert, two former US assistant attorney generals, and a former chief judge on the US Court of Appeals. None of them is a prominent public figure.
Even though the board was created at the recommendation of the 9/11 commission, and was further strengthened by an act of Congress in 2007 making it independent of the executive branch of government and providing it with subpoena power, it is only now becoming active. First President Bush and then President Obama allowed the board to languish in limbo for years, with nobody to fulfill its oversight function over this country’s surveillance program. Nobody was nominated to sit on the board until Obama finally offered a slate of nominees in December 2011, and it did not actually begin to function until this past May.
HOW IMPORTANT IS PRIVACY TO OBAMA?
While it is now in the spotlight because of the Obama administration’s embarrassment over Snowden’s disclosures, the neglect of the board by Obama for so long reveals the low priority he has assigned to its watchdog role of protecting citizens against excessive government surveillance.
While Georgetown University professor David Cole, an expert in civil liberties and constitutional law welcomes the long overdue activation of the board, he notes that its function is solely advisory, and that it has no independent powers of their own. He cautions that the influence of its members is limited “to the extent they are able to make their conclusions known in a robust, public way. Their power is to persuade. Their power is to inform the public debate.”
Sharon Bradkin Franklin, senior counsel for the Constitution Project, a bipartisan civil liberties group, said that the true test of the board will come when it makes its first recommendations to the White House. “Then this board is going to show the public how seriously Obama’s administration takes civil liberties.”