Is It Already Too Late to Stop the NSA?

The revelations about the scope of National Security Agency surveillance from the documents released to the public by Edward Snowden have been so numerous and so extraordinary that I fear we may be becoming numb to them. That's partly because there's just been so much, one revelation after another to the point where the latest one doesn't surprise us anymore. It's also partly because mixed in with the genuinely distressing surveillance programs are some things that seem almost ridiculous, like the idea of NSA agents trying to unearth terrorist plots in World of Warcraft. But there are some basic facts about this whole affair that should make us all frightened. We can sum it up as follows:

1. The scope of the NSA's surveillance is far greater than almost anyone imagined.

2. Barack Obama is not only perfectly fine with that surveillance, he was perfectly fine with it being kept secret from the American public.

3. As much discussion and consternation as Snowden's revelations produced, there has been no restraint on those surveillance powers, nor is there likely to be any time soon.

4. As new technologies and techniques of surveillance are developed, the NSA will incorporate them into its arsenal, continually expanding its reach.

5. Before long, there will be a Republican president who will appoint hundreds of other Republicans to high-ranking positions within the intelligence apparatus. Many of these will be former Bush administration officials and/or people who would like nothing more than to expand the NSA's surveillance of both foreigners and Americans as much as is technologically feasible.

We may have no more than three years to do something about it. Or it may be too late already.

Most of this you don't need to be reminded of. Every day, the NSA gathers information on who we call and who we email. They're exploiting browser cookies and the location-tracking information in smartphones to monitor people's movements online and in the real world. They're using social media to reconstruct Americans' social networks, to keep tabs on who they're associating with. They track text messages and credit-card purchases. They tap into phone and data lines.

President Obama responded to these revelations by appointing an advisory panel to assess the situation; that panel's findings will be released soon. They're going to recommend some modest oversight, but they're not going to recommend that the NSA stop any of the surveillance it's currently doing. The administration will probably take one or two of the recommendations they find least inconvenient, then throw the rest of it in the trash. The NSA will continue to use every kind of surveillance it was using before the Snowden revelations.

That brings us to the future. Imagine it's five years from now, and some new technology (or advancement in an existing technology) allows a whole new kind of data collection. For instance, let's say that face-recognition software takes a dramatic leap forward. Let's also say that new kinds of data-sorting algorithms allow the huge amount of face-recognition data available from the millions of security cameras spread throughout the country to be gathered, arranged, and analyzed, to the point where the government can assemble a comprehensive record of where much of the population of the United States is at any given time, so long as they're outside. If and when that becomes possible, do you think the NSA will say, "We really shouldn't gather this information; the privacy concerns are too great"? Not on your life. They'll say, "Just think of how valuable this will be in stopping the next terrorist attack!"

We don't know how long it will be before the government can do that, but we can be all but certain that they will be able to do it eventually. Now I want you to imagine one more thing. As disappointed as many liberals are with how aggressive the Obama administration has been in conducting surveillance, what do you think will happen when the next Republican administration comes into office and finds itself in possession of all these wonderful toys?

In case you've forgotten what the last Republican administration was like, you can get a nice refresher from Ryan Lizza's recent article in the New Yorker on the development of our surveillance state. I want to point to just one extraordinary excerpt:

The Vice-President's lawyer, David Addington, drafted language authorizing the N.S.A. to collect four streams of data without the FISA court's permission: the content of Internet and phone communications, and Internet and phone metadata. The White House secretly argued that Bush was allowed to circumvent the FISA law governing domestic surveillance thanks to the extraordinary power granted by Congress's resolution, on September 14th, declaring war against Al Qaeda. On October 4th, Bush signed the surveillance authorization. It became known inside the government as the P.S.P., the President's Surveillance Program. Tenet authorized an initial twenty-five million dollars to fund it. Hayden stored the document in his office safe.

Over the weekend of October 6, 2001, the three major telephone companies—A. T. & T., Verizon, and BellSouth, which for decades have had classified relationships with the N.S.A.—began providing wiretap recordings of N.S.A. targets. The content of e-mails followed shortly afterward. By November, a couple of weeks after the secret computer servers were delivered, phone and Internet metadata from the three phone companies began flowing to the N.S.A. servers over classified lines or on compact disks. Twenty N.S.A. employees, working around the clock in a new Metadata Analysis Center, at the agency's headquarters, conducted the kind of sophisticated contact chaining of terrorist networks that the Clinton Justice Department had disallowed. On October 31st, the cover term for the program was changed to STELLARWIND.

Nearly everyone involved wondered whether the program was legal. Hayden didn't ask his own general counsel, Robert Deitz, for his opinion until after Bush signed the order. (Deitz told Hayden he believed that it was legal.) John Yoo, a Justice Department lawyer, wrote a legal opinion, the full text of which has never been disclosed, arguing that the plan was legal. When Deitz tried to obtain the text, Addington refused his request but read him some excerpts over the phone. Hayden never asked for the official legal opinion and never saw it, according to the inspector general's report. In May, 2002, the N.S.A. briefed Judge Colleen Kollar-Kotelly, the incoming chief of the Foreign Intelligence Surveillance Court, about the program. She was shown a short memo from the Department of Justice defending its legality, but wasn't allowed to keep a copy. The N.S.A.'s inspector general later said he found it "strange that N.S.A. was told to execute a secret program that everyone knew presented legal questions, without being told the underpinning legal theory."

Think for a moment about the part I've bolded. The White House orders the NSA to begin tapping people's phones and reading their emails without warrants. Not only is the NSA quite willing to do this, its chief (Hayden) doesn't even want to see the legal opinion justifying the policy. The NSA's top lawyer asks to see it, but the White House, in the person of Dick Cheney's majordomo Addington (widely known as a man of spectacular arrogance even in a city and a workplace full of arrogant people), tells him he can't. To repeat, the NSA's chief lawyer is not allowed to see the legal justification for the NSA's surveillance program. The chief judge of the court ostensibly overseeing the policy is told she can't see it either; they'll let her glance at a memo summarizing it, and that's all. And all these people go along with it.

The important lesson here isn't just that the Bush White House was brimming with people like Addington and Yoo who saw the September 11 attacks as a wonderful excuse to indulge their darkest fantasies of torture and crypto-totalitarian monitoring of the populace, true though that is. The lesson comes in what happened after they left. Barack Obama, a former constitutional lawyer who had spoken eloquently about the need to restrain the government's national security powers, came into office and, with a couple of exceptions (like formally abandoning the sanctioned use of torture, which had been put aside in the last couple of years of the Bush administration), availed himself of the full panoply of those powers.

Maybe he feels guilty about it, and maybe the people he appointed to carry out his policies do, too; I have no idea, and it doesn't much matter. Either way, you can bet that the officials of the next GOP administration are going to have no qualms at all. When that Republican is in the White House, there will be no legislation to restrain the NSA's ballooning power, because he'd veto it even if it passed. And so, in all likelihood, would Obama. Not that Congress is inclined to pass such legislation in the first place, because it isn't. But if you think that what's going on now is bad, just wait until President Liz Cheney takes office. She'll probably even bring back Addington, Yoo, and the rest of the gang, and who knows what invasive new technologies they'll have at their disposal.

If Edward Snowden's goal was to show the public what is being done in our name, he succeeded. If his goal was to arrest the expansion of the surveillance state, it's becoming apparent that he failed. Perhaps there will be some scandal in the future that's so horrifying it will make change impossible to stop—let's say it turns out that NSA chief Keith Alexander is running a covert black ops squad that goes rogue and starts assassinating mayors and governors who get in its way. But short of that, it looks like it's going to be full speed ahead.

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