Friday, June 13, 2014

Making America Safe Again for Spying


As not much has changed over the years in how the Federal government carries out its responsibilities to watch out for threats to the security of the US, its territories, and its citizens, some people might wonder why the recent (and continuing) revelations of Edward Snowden and WikiLeaks have triggered such a vehement reaction on both sides of the political spectrum. I propose that what has changed isn't what we know the government is doing, but how confident we are that the government's behavior will not harm us.


Spying is an ugly word. It implies secrecy and dishonesty. A soldier in civvies or caught wearing the other side's uniform was typically accused of spying. Foreigners caught trespassing within the borders of certain countries are often accused of spying. The punishment for spying tends to be far more harsh than the damage done. In the past the punishment was death. These days the punishment is typically a lengthy prison sentence. Our current laws on spying (1917 Espionage Act with many amendments) were established during the First World War, in response to anti-war activists in the USA. The only people ever executed under the Act were the Rosenbergs, in 1953.

So we're definitely against spying. At the same time we do it ourselves. The CIA was established in 1947. Each of the military branches (yes, even the Coast Guard) has their own military intelligence divisions. Lincoln didn't like spying, but General Hooker established the Army Military Intelligence Division in 1863. The NSA grew out of the AFSA, established in 1949. It wasn't as famous as the CIA at first, but at least right now it is the single largest intelligence operation we've got.

Evidently then spying is an area where a decided double standard exists. We don't like others to spy on us, but we will expend a considerable amount of resources to spy on others. This post is not about the moral quandary created by the double standard, though.

Americans value their privacy. The history goes back to colonial times, when collecting evidence against persons suspected of wrongdoing involved practices that ranged from bursting into someone's home unannounced and without any sort of warrant, to torture. The legacy of this time consists of the Fourth and Fifth Amendments to the Constitution. Among other things the Fourth Amendment prohibits warrantless searches. As a result, law enforcement personnel must submit to court supervision, and evidence that is collected in violation of the law usually cannot be used in the prosecution of suspects.

In practice this looks a little bit different, in that SCOTUS's decisions in search cases seem to be based on if they like the petitioner rather than any consistent rule, but this post is not about SCOTUS's inability to formulate a unifying principle on the Fourth Amendment's search clause.

To date when Americans have faced the prospect of being searched, their reactions have been fairly equanimous. While the feds were hunting for contraband alcohol during prohibition, folks knew there was the possibility of having your mail opened or your telegrams read, but didn't seem to mind too terribly. During the Red Scare everyone knew the FBI were infiltrating trade unions and gun clubs, but there was little outrage. People found that their cars could get searched for drugs starting with Nixon's War on Drugs, and the Justice Department's efforts to crack down on internet child porn mean that laptops, phones, and memory sticks carried over the border are subject to searches without needing a warrant.

Essentially, Americans expect law enforcement to search, and as long as the search doesn't cross certain boundaries, we seem to be willing to endure it, knowing that the purpose was to catch evil doers, and we knew that would not be us.

The FISA Era

The Foreign Intelligence Surveillance Act (FISA) was a response to Nixon's administration, in an effort to make the government once again accountable to its citizens, and make that accountability believable.

Nixon's offenses were many, but his abuse of his powers of office to spy on his opponents is the one that caused Congress to write a number of laws that were supposed to protect American civil society from the unsupervised use of the powers of surveillance. FBI and CIA operatives had to go through channels to talk to each other. The CIA's prohibition against operating in the USA or against US citizens was reinforced. And, as one might expect, the administrations following Nixon (first Ford, then Carter) complained mightily that they could no longer perform essential functions of intelligence collection under these new laws.

So the FISA law was enacted in 1978. It established a way for intelligence agencies, particularly the NSA, to continue to collect information, with court supervision, but in an environment that maintained the secrecy that is essential to spying - you don't want the people you're spying on to know you're doing it, and not just because spying is an ugly word that makes you look dishonest.

Still, few complained. Ostensibly the Feds were only checking up on foreigners, and the secret court established by FISA would make sure that in the event US citizens got involved the surveillance would not be warrantless. And then 9/11 happened.

Post 9/11 Surveillance

The terror attacks of 9/11/2001 were hugely embarrassing to the US intelligence community. On hindsight it was clear that they should have seen this coming, and that they had ample opportunity to stop it before it happened. But instead of correcting the bureaucratic disfunction that hindered their correct operation, the administration of G.W. Bush applied to Congress to liberalize some of the rules that supposedly had prevented the CIA and FBI from doing their jobs. As the conservative American Enterprise Institute wrote, the Patriot Act was "a modest retrenchment from an overcautious interpretation of FISA."

Even so, G.W. Bush authorized wiretapping in excess of that authorized by the Patriot Act. That particular program was retroactively authorized by Congress in 2006, and the Patriot Act itself was largely re-authorized in 2008. When Obama came to office he mostly continued the surveillance programs established by his predecessor.

In principle, Edward Snowden's leaks five years later were nothing new. The Feds have always been allowed to record address information from mail sent by post. We already knew that the administration was able to and did request telephone usage records from telephone companies - SCOTUS had ruled years earlier that this required no warrant. We already knew that the 2006 FISA amendment had significantly liberalized the provisions of FISA that were ostensibly supposed to limit the amount of warrantless surveillance that US citizens could be subjected to. We already knew the Feds had ways of intercepting network traffic, and that courts had ruled that source and destination addresses and other associated information (as opposed to content) was not subject to Fourth Amendment limits on searches. We already knew the FBI was making a liberal use of the National Security Letter to gain access to information.


But if nothing new had been revealed, why is Snowden being pursued by the Feds for spying? Why are so many Americans upset about Snowdens' revelations? Why are US IT service providers losing customers over the prospect of having their data examined by the NSA?

One thing has changed. That is the perception that the Federal government is accountable to its citizens. This perception received its first blow under Nixon, when it was revealed repeatedly that Washington often did things that violated the principle of accountability. There were the Pentagon Papers, Tuskegee, and then there was Watergate. Congress reacted by passing various laws that were meant to reestablish our confidence that the Feds were working for us, not against us.

And then came the burgeoning use of no-knock warrants, Reagan, who started the program of extraordinary rendition (kidnapping people to send them to places where they could be tortured and detained without the benefit of constitutional protections), and an increasing rate of BATF, DEA, and ICE raids in the dark of night with occasional tragic consequences, all practices that were only escalated by later administrations. Under Reagan and succeeding administrations the state secrets privilege was invoked repeatedly in court to prevent the victims of the Federal government's actions from gaining relief, and to prevent citizens from examining what the government was doing, or stopping the government from doing it, to the point where under G.W. Bush as well as Obama petitioners now cannot even prevail by referring to practices that are generally known, but that the Feds don't want to talk about.

This is not to suggest that the Feds have become a dictatorship beyond the reach of the law - these terrible acts - kidnapping, torture, even summary execution - are committed, at least most of the time, with the intent to protect Americans from terrorist acts at home and abroad. (Well, and to protect the jobs of the politicians who might otherwise get yelled at if anything bad happens.)

But the lack of transparency prevents citizens from having confidence that the Feds are in fact doing this for good reasons. Under G.W. Bush already a considerable amount of resistance mounted. The FISA amendments of 2006 passed, but not without a lot of controversy. The Patriot Act was renewed in 2008, but, again, not without resistance. And while Obama was portrayed by opponents as a liberal his administration has continued and even escalated most of the surveillance programs that G.W. Bush started.


Over the past two administrations it would seem that if citizens should oppose surveillance, they should have started in 2002. But, while there was some resistance at the beginning, it was always perceived as partisan opposition. People didn't pay attention to complaints about surveillance under G.W. Bush, because those were just the liberals and Democrats. And people didn't pay attention to complaints under Obama because those were just the conservatives and Republicans. And racists, of course.

But now both liberal civil libertarians as well as law and order conservatives suddenly find themselves on the same side of this issue. The first group had initially believed that Obama's campaign promises of "Change" would end what they perceived as the previous administration's intrusions and abuses. The second group found that with a black Democratic president they were much more concerned about how the Feds would use their powers than they had been under a white Republican president.


So that's where we stand now. The administration believes it is doing nothing wrong, mostly because it is doing nothing wrong, as far as the laws Congress has passed are concerned, and as far as SCOTUS decisions over the past thirty years go.

But at the same time the administration continues to cloak its activities in secrecy. There is no law and no court precedent that might make Americans confident that surveillance activities would not catch them up in the Feds' anti-terrorism efforts, innocent, but with no way to defend themselves against prosecutorial overreach and a stack of laws that seem to make just about everything we do potentially illegal.

No matter how prettily Obama explains himself, trust would seem to be impossible under these circumstances. There might be ways out of this impasse, but it's doubtful that this administration can find such a way. Congress might find a way to act, but that, too, seems to be a long shot. It seems unavoidable that we'll enter the 2016 election season with an unprecedented level of distrust between Americans and their government.

And that can't be good.