By Doug Porter
It’s a one topic day for this news roundup.
The Guardian newspaper has a major scoop on its hands. Reporter Glen Greenwald yesterday published a leaked copy of a Patriot Act Section 215 order. The order itself is the scoop, since Section 215 orders are secretly authorized by a secret court to tell individuals to take actions in secret.
Revealing the existence of one of these secret orders is against the law. So we can expect a Federal investigation with its own set of secret court orders into who leaked this document.
And, sorry conservatives, this isn’t anything unique to the Obama administration. Members of both parties have been playing this hush-hush sport for way too long. Before 9/11 even.
As California Senator Diane Feinstein, who led efforts to defeat language requiring specific ties to terrorists with Section 215 orders, put it this morning, “It’s called protecting America.” She and Georgia Senator Chambliss told the media, “monitoring of phone records… has been going on for years, Congress is regularly briefed about it.”
So the content of the leaked document, which ordered a single telecommunications provider to share transactional information about every transaction made through its system, is… Not. Really. News. To anybody who’s been paying attention.
An expert interviewed by the Washington Post today said the Section 216 order appeared to be a routine renewal of a standing order that’s been more or less in place since 2006. And while the leaked document refers to Verizon, other telecommunications providers almost certainly are under similar orders.
Here’s what the government wants, from the Guardian story:
The information is classed as “metadata”, or transactional information, rather than communications, and so does not require individual warrants to access. The document also specifies that such “metadata” is not limited to the aforementioned items. A 2005 court ruling judged that cell site location data – the nearest cell tower a phone was connected to – was also transactional data, and so could potentially fall under the scope of the order.
While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively.
So it’s totally legal for the federal government to collect such data on phone calls without any specific basis for suspicion. The Supreme Court has already ruled that such data has no Fourth Amendment protection, on the theory that sharing information with a third party gives no “reasonable expectation of privacy” with respect to the government obtaining information from that party.
As David Cole at The Nation puts it:
Congress has placed some limits on the gathering of such data, but as this order reveals, they are largely meaningless. A controversial provision of the USA PATRIOT Act, Section 215, allows the government to demand “business records” from any business, so long as they are “relevant to an authorized investigation … to obtain foreign intelligence information … or to protect against international terrorism.” Section 215 orders are granted in secret, as this one was, and until now little was known about how extensively the government relied upon them, or how “relevant” was interpreted. By this single order, however, the NSA has been given access to records on literally millions of customers, without suspicion about any of them. We don’t know the government’s theory, but it appears that it may be arguing that in order to protect against international terrorism, it is “relevant” to sweep up phone call data about all of us all of the time.
Last year, Senators Ron Wyden and Mark Udall warned, in a letter to Attorney General Eric Holder, “We believe most Americans would be stunned to learn the details of….these secret court opinions. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows.” Count me as one of those stunned. The leak of this secret court opinion certainly narrows the gap in our knowledge that secrecy permitted. But it does so by confirming that those most paranoid about government spying were right after all.
Is all this data collection necessary to keep us ‘safe’ from terrorists? Or is this just a part of the every day routine of 21st century governance?
Columnist Richard Seymour at The Guardian weighs in:
Technically, one could argue that there is no need for this surveillance. The inspector general of five federal intelligence bureaucracies published a report in 2009 indicating that FISA’s requirements had in no way hindered intelligence-gathering efforts. That may be missing the point, however. Expanding the state’s ability to gather information on citizens, no matter what the justification, always increases its options – be they repressive or productive. Further, the convergence of spying on the one hand and secrecy on the other is just characteristic of the state’s tendency to monopolise information.
The conventional liberal critique of such practices is prudential. As the liberal writer Stephen Holmes argued, secrecy undermines security by allowing the state to conceal and perpetuate errors. It removes the necessity to have plausible reasons for one’s policies, so that eventually one stops having plausible reasons. These strictures apply even more in the case of emergencies. Holmes evoked the image of an emergency room, in which medical staff are having to cope with life-threatening situations; unless their behaviour is governed by certain rules, medical staff will be prone to error.
This metaphor may work, if we assume the patient is a crisis-stricken American capitalism and its global authority. Obama’s hoarding of executive power can only be understood in the context of his mission to restore American global power, rationalise its productive base, and expand the state’s capacity to process dysfunctions. In this respect, his agenda is not fundamentally dissimilar from that of his predecessor, which is why he needs many of the same means.
I would like to error on the side of the freedoms that George Bush told us the ‘terrorists hate us so much for’ on this issue. I think this leak is a good thing…IF it provokes a non-hysterical discussion about what government does in the name of national security. I know the chances of that are small, because the chickenhawks squawking about such dialogue revealing our (military) weaknesses have traditionally triumphed. But I’d like to hope for it anyway.
As Conor Friedersdorf at The Atlantic says:
There would be fewer leaks if the Bush and Obama administrations hadn’t improperly hid so much of consequence from the American people, including policies that made federal employees uncomfortable or ashamed, usually because they’re illegal, immoral, or at odds with American values.
As a first-term Illinois senator turned president-elect once put it, “often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance.”
Just as we celebrate Daniel Ellsberg of Pentagon Papers fame, recognizing that his leak made America stronger rather than weaker, I hope and trust we’ll one day celebrate the War on Terror leakers who kept reminding Americans that their national security state is out of control.
On This Day: 1944 – The D-Day invasion of Europe took place on the beaches of Normandy, France. 400,000 Allied American, British and Canadian troops were involved. 1968 – Senator Robert F. Kennedy died at 1:44am in Los Angeles after being shot by Sirhan Sirhan. Kennedy was shot the evening before while campaigning for the Democratic presidential nomination. 1972 – David Bowie’s “Ziggy Stardust and the Spiders From Mars” was released.
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