America's National Surveillance State

Today at American Greatness there's a book review that I highly recommend. It follows on nicely from yesterdays brief post about Big Business as Big Brother, especially in light of what is clearly an alliance between Big Tech and the Deep State intelligence community.

The review, Deep State, Dark Intentions, is of a book by Barton Gellman about the pervasive surveillance state that America has become: Dark Mirror: Edward Snowden and the American Surveillance State.

Gellman was one of the journalists to whom Snowden leaked the NSA files that revealed the full scope of the post 9/11 surveillance state put in place by our Deep State. While the blurb at Amazon describes the book--in the first instance--as "a gripping inside narrative of investigative reporting as it happened", the review spares us that part and instead focuses on the second aspect of the book that will be of most interest: the "deep dive into the machinery of the surveillance state."

As the reviewer, Lucja Cannon, notes, most Americans will be unfamiliar with the history of surveillance in the United States. I suspect that most Americans are under the impression that, until FISA was enacted in 1978, Americans were somehow protected from government surveillance by the 4th Amendment's warrant requirement. In fact, nothing could be further from the truth. Before FISA there were no legal restraints on government surveillance in the national security sphere. Let me repeat that: there were no legal restraints on national security surveillance. The real restraints were technological. And to this day there are no definitive SCOTUS cases on these issues--the existing precedents basically affirm the pre-FISA state of affairs. 

This places FISA on somewhat shaky grounds from a constitutional standpoint. However, nobody has been really interested in challenging the constitutionality of FISA. From the government's practical perspective, FISA allowed the government to get what it needed done, with the added benefit of a legislative imprimatur on its surveillance activities. From the civil liberties standpoint, FISA offered a "warrant" requirement--albeit an anomalous one--and, from a practical standpoint FISA cases weren't going to end up in actual trials. The result was a sort of standoff, but one which was ripe for government abuse--as I've pointed out in citing Robert Bork's views on FISA, expressed at the time of its passage. Bork's view was that, by making national security surveillance an essentially administrative matter--despite all the external trappings of a "FISA court" and "applications" and "warrants"--the result would be that nobody would really be accountable in the sense of facing criminal accountability. I think that's what we're seeing now in the wake of the Russia Hoax. Bork's view appears to have been vindicated.

This standoff changed decisively after 9/11. Cannon describes all the enhancements to government surveillance authority that were ordered by then President Bush, but were later to receive a Congressional imprimatur through various measures connected to amendments to FISA. Bush's actions were justified on traditional (pre-FISA) understandings of national security surveillance law, especially in a time of war--or, if you prefer, during a time of authorized use of military force. Because of judicial precedent, based on traditional constitutional understandings, nobody was inclined to launch a legal challenge in the post 9/11.

As Cannon puts it, 9/11 ushered in a "golden age of surveillance." It's worth reviewing what this entailed. However, bear in mind that all this was justified on pre-FISA understandings of the Constitution and of the powers of the Executive to defend against enemies, foreign and domestic in the national security sphere. It wasn't truly a FISA thing.

"Essentially all restrictions were lifted. President George W. Bush ordered the NSA to disregard the statutory warrant requirement and set up a special unit through Vice President Dick Cheney’s office, which oversaw a mass-surveillance program global in scope. It could legally obtain all account information from Google, Facebook, Yahoo, Microsoft, AOL, Skype, YouTube, Apple, Paltalk, phone companies, and other partners—so-called metadata. It consisted of a listing of calls and emails, their destination, time, and duration.

"NSA analysts not only could review account information but also dial in and record live audio, video, chat and file transfer and instantly read keystrokes. The justification was the search for unknown terrorists, as it turned out that much of the world’s communications flow through the United States as the cheapest route and that foreigners often used U.S. email accounts.

"Another major program established after 9/11 was the location database for virtually all cellphone users in the world. It tracks and stores the location of every device that places mobile telephone calls, logging each phone’s whereabouts over time. The database, Gellman reports, gathered nearly 5 billion records a day pertaining to the movements of millions of individuals. Intelligence agencies could also buy location data information for cellphones commercially.

"The U.S. government also began the bulk collection of electronic address books, which permits contact tracing among large numbers of individuals. The alleged purpose was to find unknown associates of known intelligence targets, especially terrorists.

"The global scope of the mass-surveillance program was made possible by the intelligence cooperation between the United States and the “Five Eyes” partners: Great Britain, Canada, Australia, and New Zealand."

As Cannon explains, Gellman makes the point that much of what goes on with this type of intelligence gathering surveillance is--in today's global communications environment--able to skirt the requirements of FISA, and especially the distinction between domestic and foreign collection. These are very technical matters that I won't get into here, but the implications are clear from the Russia Hoax: there have been repeated reports of the US receiving "intelligence" regarding Trump from foreign sources (especially the UK's GCHQ) in the form of "intelligence sharing." Those reports have all been officially and vehemently denied. Which doesn't mean that it didn't happen.

However, the account of how this data gathering is used is very important to Gellman's account, and for us--we who live in this surveillance state. All this was justified in the context of the Global War on Terror, but as with so many similar measures, there's always a reason to continue these programs. When was the last time government voluntarily relinquished highly intrusive authorities? So I'll quote again:

"Intelligence agencies do much more than gather global data on almost all who use electronic devices. They constantly collect it, store it, analyze it, and update it. They use artificial intelligence to find patterns to build up profiles on everyone in their database. They could conduct contact chaining to draw a map of social networks for all their contacts, an analysis of links among friends, friends of friends, acquaintances, and so on. They could track individuals in fine detail by extracting a timeline from the index of individual calls. This info is enriched by metadata and content drawn from other NSA repositories like intercepted emails. Patterns gleaned from call records would identify targets in email and location databases.

"Rules for mathematical analysis of data sets were supposed to be the same as for surveillance: U.S. records were supposed to be kept segregated with special permission required for access. This restriction all but disappeared in November 2010 when Attorney General Michael Mukasey approved new and more permissive rules, which allowed NSA staff to calculate social graphs from and through any selector, irrespective of nationality or location.

"Thus, U.S. data is not only collected but also analyzed mathematically in the same way all data is. The software builds a profile on everybody in the database." 

The distinction that is made between data on US Persons and non-US Persons is that in the case of US Persons the intelligence agencies have to have a "need" in order to access this information. What "need" means in practice can be a very flexible concept. Again, it's not likely to end up in a court. We'll return to this.

Having reviewed all this--and I do urge you to read it all--Cannon assembles five conclusions that Gellman draws:

1. The global surveillance state is about global control and the technology that makes it possible but actually it is not effective in finding unknown terrorists, which is its primary purpose. It concentrates on ordinary people.

2. Protections of U.S. residents’ rights under the Fourth Amendment are very weak and subject to numerous conditions. It is a question of policy that can be changed at any time. Often rules are bypassed or rewritten with or without notice.

3. Considering the current state of technology, a lot of intelligence collection is conducted from abroad and is aimed at global hubs, thus effectively erasing a difference between U.S. residents and foreigners. In practice, American constitutional rights are not respected.

4. Gellman points out that national security officials often made misleading statements on these subjects in public and deliberately concealed information from courts and Congress.

5. In view of these findings, he concludes the global surveillance state is inherently abusive. Further, any discussion of this issue seems forbidden. Only discussion of domestic surveillance is deemed legitimate but its global reach seems to be beyond questioning, even though Gellman shows this distinction hardly exists.

In conclusion, Cannon draws out the implications of what Gellman has described--the existence of an all pervasive surveillance state that systematically collects data on all persons--essentially, all digital data. Cannon looks at a number of areas, but of most concern is the possibility that these government capabilities could be used for political purposes. 

We mentioned above how flexible the idea of "need" can be in justifying intelligence agencies--to include the FBI--in accessing these vast databases. That is the meaning of the Steele dossier. Is their a bare allegation that a political candidate is a "foreign agent"? That could be good enough. As Cannon says:

"we know Trump was the political target of the surveillance state. Whether it was spying on his political campaign, unfounded claims of Russian collusion, or leaking the Russian intelligence-derived Steele dossier, the surveillance state tried to destroy the duly elected president of the United States. Therefore, there is a threat in the future of such actions against other political candidates."

 

These actions all were supposed to have a justification, but we've seen that where there's a will there's a way--it's not that hard to satisfy the very flexible "need" requirement. And, as Bork presciently saw, the likelihood of real world accountability is just about zero. Cf. Kevin Clinesmith.

Has anything changed since 2016? Well, it's hard to say, isn't it? We might know, if there'd been more actual declassification, right? But that, in the end, never happened. Which gets us to the "going forward" part. The constant drumbeat of references to "insurrection" and "sedition" certainly sounds like an invocation of serious national security concerns--concerns that, in Cannon's words, are expressly "designed to legitimize the use of this vast surveillance system against domestic dissidents." 

We now have in place a pervasive national security surveillance state within the state--a Deep State, you might call it--that, while justified under traditional Constitutional principles, is ripe for judicial review in light of the exponential changes in technology between 1789 and the present. But does the SCOTUS dare do that? One may well doubt that. There's also the matter of the ongoing authorizations for the use of military force, which places the US in a permanent state of war. And that means that our surveillance state will be a permanent feature of American life, barring drastic measures that nobody seems inclined to take. Again, does the SCOTUS dare address that?

And in the meantime, what's going on in Congress? A bipartisan (barely, but it is) effort to cancel the one President who attempted to pull back the curtain on all this. One thing we know, while this charade continues: The Deep State in its current form of an all pervading surveillance state will remain with us as long as we allow it. It will use its powers. The Deep State plays by use 'em or lose 'em rules.