Edward Snowden said that he stepped forward because he came to realize that the US government is engaged in invasions of Americans’ privacy on a vast and unprecedented scale, and was hiding its interpretation of the law from the American people. Given that the NSA is contravening the 4th amendment guarantees against unreasonable search and seizure, some Americans consider him a hero.
The governmental class, however, will attempt to destroy Snowden, with well-practiced tools of propaganda, demonization, and distortion, as a way of taking the focus off their own alleged wrong-doing. This is how it is done (although the points are given in the future tense, most have already been trotted out).
1. Snowden will be called a traitor for revealing to the American people the secret actions of the US government as they affect the American people.
2. Snowden will be called a defector for going to Hong Kong, which is ultimately under Chinese rule.
3. Questions will be raised about Snowden’s mental balance.
4. It will be alleged that Snowden does not understand the secret programs on which he blew the whistle.
5. Government spokesmen will assert without evidence that his allegations are simply untrue.
6. Charges Snowden did not make, such as that the government is engaged in warrantless wiretapping of telephones, will be denied. This is a form of misdirection.
7. It will be alleged that the domestic surveillance is legal, even thought that assertion has never been tested in the courts because the US government won’t reveal the victims of its program, so no one is recognized by the courts as having standing to sue. (Everything the Soviet Union did was legal, too, by Soviet law).
8. A small, uncontroversial part of his charges will be admitted, to take the focus off the iceberg under the sea.
9. It will be alleged that Snowden has aided terrorists in eluding observation (even though we have no evidence that major terrorist plots were defeated by data-mining).
10. It will be alleged that what Snowden did was wrong, since Americans could always just have had a democratic dialogue on the secret programs instead. They are hoping you don’t notice that they had kept it secret from you and prevented a democratic dialogue.
The Second Amendment to the Constitution is interpreted by lawmakers and judges in an absolute manner. Every American, we are constantly told– even mentally ill ones like the shooter at Santa Monica College who killed 6 persons on Friday, hunting our children as though they were wild game– has the right to stockpile semi-automatic weapons and thousands of rounds of ammunition. This bizarre attitude toward high-powered firearms is unexampled in the rest of the world outside perhaps Yemen.
A majority of Americans would like a less fundamentalist interpretation of the 2nd Amendment. But the arms manufacturers that pour millions into the coffers of Congress and of the National Rifle Association get a veto on gun legislation. At stake are billions of dollars in profits (the assault weapons that can be freely bought at Walmart sell like hotcakes).
In contrast, the Fourth Amendment is never interpreted in a fundamentalist manner. It says,
“Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Now, who you telephone, for how long and when, is a personal “effect” by any common sense definition. But the National Security Agency has requisitioned that information from Verizon, according to The Guardian’s Glenn Greenwald. And your email is also the 21st century equivalent of “papers.”
Note that you can go to the Post Office and put a first class letter in an envelope in the hands of the government itself to deliver for you, and the government cannot open that letter without a warrant. I mean, it is actually in their custody, and they don’t have access to its contents. Because the Fourth Amendment is held by the judges to apply to first class land mail. Getting a warrant would require the government agents to be very specific about the letter they wanted to open, and to give pretty good evidence that a law is being broken.
But since the misnamed PATRIOT USA Act, the government is asserting that it can look at your email, telephone records, etc., without a warrant and at will. No precise specification. No evidence of wrong-doing. This scatter-shot snooping can take place even though your email has nothing to do with the government– you haven’t given it to them, you are typically a private person using a private company with an expectation of privacy.
If US Federal agents swooped into Google’s headquarters in SWAT gear and raided Google’s file cabinets without a warrant, the Republicans in Congress and the anchors at Fox would all have brain aneurysms. But if Federal agents swoop into Google’s servers and read the email of ordinary people, that seems to be all right. Our Constitutional rights increasingly only extend to Corporate citizens; the rest of us are second class.
I don’t think you have to be a fourth amendment fundamentalist to find this government intrusion unconstitutional and creepy
I am genuinely puzzled as to why the Fourth Amendment is no longer taken seriously, much less literally, by any significant faction in American politics. My hypothesis is that whereas the gun manufacturers clearly make big bucks off their weird absolutist interpretation of the 2nd Amendment, there is no set of corporations that would lose billions of dollars if the government snoops into your phone records or email traffic. Oh, Google might suffer versus Yahoo among consumers if the former let the NSA have access to its servers but the latter did not, but the government has neutralized that issue by dragooning both of them. (They deny it, but they are forced to deny it by the terms of the PATRIOT Act, which disallows victims’ disclosure of government bullying).
Since what counts in American politics is campaign dollars, there’s no real pressure for the Fourth Amendment. There are no corporate coffers at stake, only harm done to everyday citizens like you and me, and the system no longer serves us.
So we have to allow mentally ill people to have high-powered weaponry and to go on safaris hunting our children in our schools. But we can’t push back against Big Brother in our private communications.
Some will argue that fear of terrorism is at play here. But over the past 12 years about 300 Americans a year on average were killed by terrorism (in the past *ten* years it would be less than 10 a year on average). Between murders and suicides, 30,000 a year die of gunshot wounds. We’re told nothing can be done about the 30,000 dead a year. But the much less deadly terrorism means we have to trash the constitution. If there were a corporate sector that made billions off the fourth amendment, we’d be told that a little terrorism is the price of living in a free society. It is the amendments that affect the first class citizens that are important.
Edward Snowden, the whistleblower in the PRISM case of government snooping into our emails at will, may face extradition from Hong Kong and prosecution and a lengthy prison term. Yet he was not a government employee, working instead for Booz, Allen, and merely reneged on a pledge he had signed.
But the agents of the NSA and other security agencies, the Congressmen, the judges, and Barack Obama, who are all complicit in PRISM and other such programs, are contravening the constitution itself. That is a fundamental form of law-breaking, going beyond contravening an employment oath or even breaking a statute. They are held harmless but Snowden is in danger.
Snowden upheld the Constitution and our basic Fourth Amendment rights. But there’s no corporation in his corner, so he is up the creek. Meanwhile the Santa Monica Massacre has already faded from the news cycle.
A four-month hunger strike, mass force-feedings, and widespread media coverage have at last brought Guantanamo, the notorious offshore prison set up by the Bush administration early in 2002, back into American consciousness. Prominent voices are finally calling on President Obama to close it down and send home scores of prisoners who, years ago, were cleared of wrongdoing.
Still unnoticed and out of the news, however, is a comparable situation in the U.S. itself, involving a pattern of controversial terrorism trials that result in devastating prison sentences involving the harshest forms of solitary confinement. This growing body of prisoners is made up of Muslim men, including some formerly well-known and respected American citizens.
At the heart of these cases is a statute from the time of the Clinton presidency making it a crime to provide “material support” to any foreign organization the government has designated as “terrorist.” This material support provision was broadened in the USA PATRIOT Act, passed by Congress just after the 9/11 attacks, and has been upheld by a 2010 Supreme Court ruling in the case of Holder v. Humanitarian Law Project. Today, almost any kind of support, including humanitarian aid, training, expert advice, “services” of all sorts, or “political advocacy” undertaken in “coordination” with any group on the State Department’s terrorist list, can lead to such a terror trial. The Court has never defined what “coordination” actually means.
In that Supreme Court ruling, Justice Stephen Breyer was joined in dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Breyer proposed a narrower interpretation of material support: individuals should not be subject to prosecution unless they knowingly provided a service they had reason to believe would be used to further violence. At the time, the position of the dissenting judges was backed by key editorials in major newspapers. In the three years since, however, more material support cases have resulted in long sentences with very little public notice or critical comment.
Pre-Trial Punishment
In the U.S. these days, the very word “terror,” no less the charge of material support for it, invariably shuts down rather than opens any conversation. Nonetheless, a decade of researching a number of serious alleged terrorism cases on both side of the Atlantic, working alongside some extraordinary human rights lawyers, and listening to Muslim women in Great Britain and the U.S. whose lives were transformed by the imprisonment of a husband, father, or brother has given me a different perspective on such cases.
Perhaps most illuminating in them is the repeated use of what’s called “special administrative measures” to create a particularly isolating and punitive atmosphere for many of those charged with such crimes, those convicted of them, and even for their relatives. While these efforts have come fully into their own in the post-9/11 era, they were drawn from a pre-9/11 paradigm. Between the material support statute and those special administrative measures, it has become possible for the government to pre-convict and in many cases pre-punish a small set of Muslim men.
Take the case of Ahmed Abu Ali, a young Palestinian-American who is now serving life in the Administrative Maximum Facility, a supermax prison in Florence, Colorado, and is currently under special administrative measures that restrict his communications with the outside world. A university student in Saudi Arabia, he was arrested in 2003 by the Saudi government and held for 20 months without charges or access to a lawyer. The Washington Postreported that the U.S. government finally asked for his return just as his family filed a lawsuit in Washington.
At the time, it seemed like a victory for the family and the various human rights organizations that had supported them, but on arrival Ahmed was charged with material support for al-Qaeda and plotting to assassinate President George W. Bush. The evidence to convict him came from an anonymous alleged co-conspirator and from taped confessions he made, evidently after being tortured in Saudi Arabia, a common practice there. The evidence of his torture was contested at his trial. The case was described by a staff member of Amnesty International USA as “unusual in the annals of U.S. outsourcing of torture.” An appeal of Ahmed’s 30-year sentence actually resulted in the imposition of an even more severe sentence: life without parole.
In addition, special administrative measures have been applied to him. These were originally established in 1996 to stop communications from prison inmates who could “pose a substantial risk of death or serious risk of injury.” The targets then were gang leaders. Each special administrative measure was theoretically to be designed to fit the precise dangers posed by a specific prisoner. Since 9/11, however, numerous virtually identical measures have been applied to Muslim men, often like Ahmed Abu Ali with no history of violence.
Apparently Obama only meant that he would pass laws and issue presidential decrees that allowed the government to violate civil liberties, so that the vast domestic surveillance was legal, in contrast to its illicit character under Bush. It isn’t the surveillance that he was promising to curtail.
That’s what I take away from his defense of the surveillance on Friday. He also was being dishonest in saying that no one is listening to our phone calls. He wasn’t accused of listening to our phone calls. He was accused of monitoring who we call, without a warrant, which is private information as he well knows. When you deny the charge that hasn’t been made and ignore the one that was, you are in Donald Rumsfeld territory. It is a sad thing to see this happen to Barry.
Senator Ron Wyden (D-OR) warned two years ago that when the US public discovered how the Patriot Act is actually interpreted by the FBI and NSA with regard to domestic surveillance, they will be stunned and angry:
He had to talk analogically about the issue, however, since PRISM was classified. So he told about a CIA program to keep 10,000 files on domestic surveillance targets, in contravention of the agency’s charter and US law.
What was Wyden trying to tell us? Do we yet know the extent of the abuses?
Bradley Manning, who spilled the beans on the US blowing away of unarmed Iraqi journalists and overlooking war crimes by the US military and allied Iraqi troops, released thousands of low-level cable messages. He has been charged by the US government with thereby being a traitor, giving aid and comfort to the enemy. It is not clear which enemy benefited from the catty remarks in some embassy cables, or how exactly their revelation harmed national security. What did happen was that millions of people in the US and around the world discovered some of the more egregious sins of commission and omission of the US government, especially with regard to Iraq. The treason charge against Manning is outrageous, and has been pursued because otherwise what he did is not obviously very serious and even a military judge might not return a severe sentence. While the scatter shot character of his revelations may be troubling, some of what he revealed was government crimes, for which Americans should thank him.
It turns out that Manning, in making government correspondence available for us to read, was just turning the tables on the US government, which The Guardian and the Washington Post today reveal has a back door called PRISM into all our internet communications (emails, over-the-internet phone calls, browser search history, etc.) with 9 major companies, including Microsoft, Google and Yahoo! (but not, interestingly, Twitter). The program is detailed in a Powerpoint slide presentation for initiating new NSA employees into its workings.
The sordid police states that have a paltry few tens of thousands of domestic spies monitoring the activities of ordinary citizens turn out to be minor players in this game compared to the home of the brave and the land of the free. Eat your hearts out, North Korean secret police and Baathist mukhabarat in Syria!
The NSA is supposed to use the back door only for communications going abroad or originating abroad, but it only has to be 51% certain that there is a foreign component. That is a low bar. But anyway nowadays how many of us have no email or social media communication with people living overseas? In practice, domestic communications will inevitably be swept up in this program. And, someone should explain to me why Americans’ correspondence going abroad is suddenly without Fourth Amendment protections? The FBI appears to be deeply involved in the operation, and how likely is it that, say, Occupy Wall Street activists or environmentalists haven’t been subject to surveillance? Apparently, unlike with the case of the Verizon phone call records, the NSA has access to the content of emails, not just records of to whom they were sent. In any case, meta data like who you are talking to is in most cases *more* important than content, as Jane Mayer explains.
Apparently the back door was installed under the provisions of the misnamed USA PATRIOT Act of 2001 that allow for requisition of “business records,” and the FBI and National Security Agency interpreted that language to allow installation of the equipment allowing direct access to the companies’ servers. The large internet companies’ spokespeople are puzzled by the news and denying it, but there is every reason to think that the CEOs and other authorities at these companies were strictly enjoined against revealing what had been done, and so the rest of the company and the world hadn’t known about it. One of the ways the anti-PATRIOTic Act subverted American norms of public life is that it allows the FBI to not only request your records without a warrant but to forbid the provider of the records from ever revealing that the request was made. In other words, it turned librarians and internet company officials into liars and stool pigeons and mafiosi, under a goonish seal of silence.
Oregon Senator Ron Wyden has known about PRISM for some time and been appalled, but could not speak openly about it because it is classified, and has pleas to fellow senators to do something about it were shamefully deep-sixed by his colleagues. Me, I have dark suspicions that PRISM and telephone record surveillance has allowed the FBI, NSA and other agencies to accumulate damaging information on our representatives’ private lives so as to be able to blackmail them into not rocking the boat. At least, these programs make such a way of proceeding entirely possible at any time.
It isn’t just the government. PRISM is only using the resources of private companies, and we cannot depend on them always being upright. We know that billionaire Rupert Murdoch has deployed his “news” organizations to hack into people’s voice messages and has attempted to use his known surveillance capacity to intimidate high-level politicians into accepting his policy diktats.
The Electronic Frontier Foundation has made a timeline of NSA domestic spying and the EFF’s own so far fruitless attempts to get the courts to enforce the Constitution.
One reason Eric Holder should be fired is that his likely response to the revelation of PRISM will be to pull out all the stops to find and punish the NSA employee that turned the Powerpoint slides over to the Guardian and WaPo. Stepping back from this massive incursion against the Constitution? On past evidence, that won’t be on his agenda.
In any case, the US Government has been gleefully getting access to your private correspondence and that gave the Government Class an inherent superiority over ordinary Americans. Manning announced that turnabout is fair play, and we should be able to see their correspondence, too, especially given the war crimes in Iraq. That’s why they’re trying to execute him.
Welcome to Informed Comment, where I do my best to provide an independent and informed perspective on Middle Eastern and American politics.
Informed Comment is made possible by your support. If you value the information and essays, I make available and write here, please take a moment to contribute what you can.
Google+