The Lawless Surveillance State

The latest revelations of illegal domestic spying highlight what has become increasingly clear about the nature of our government.

By Glenn Greenwald

Published December 16, 2007 9:44AM (EST)

(updated below)

There are several vital points raised by the new revelations in The New York Times that "the N.S.A.'s reliance on telecommunications companies is broader and deeper than ever before" and includes both pre-9/11 efforts to tap without warrants into the nation's domestic communications network as well as the collection of vast telephone records of American citizens in the name of the War on Drugs. The Executive Branch and the largest telecommunications companies work in virtually complete secrecy -- with no oversight and no notion of legal limits -- to spy on Americans, on our own soil, at will.

More than anything else, what these revelations highlight -- yet again -- is that the U.S. has become precisely the kind of surveillance state that we were always told was the hallmark of tyrannical societies, with literally no limits on the government's ability or willingness to spy on its own citizens and to maintain vast dossiers on those activities. The vast bulk of those on whom the Government spies have never been accused, let alone convicted, of having done anything wrong. One can dismiss those observations as hyperbole if one likes -- people want to believe that their own government is basically benevolent and "tyranny" is something that happens somewhere else -- but publicly available facts simply compel the conclusion that, by definition, we live in a lawless surveillance state, and most of our political officials are indifferent to, if not supportive of, that development.

That's precisely why our political class is about to bestow amnesty on telecoms which broke multiple laws in how they enabled the government to spy on us, even though what the telecoms did -- on purpose and for years -- is unquestionably illegal. Our political leaders in both parties plainly want this limitless surveillance to continue, and they don't think that telecoms do anything wrong even when they work with the government in spying on Americans in ways that are against the law.

And they're saying that explicitly. The legislation jointly created and about to be enacted by Jay Rockefeller, Dick Cheney, Congressional Republicans and Harry Reid -- with a vital assist from the Jane-Harman-led "Blue Dogs" in the House -- is all designed to conceal and protect this state of affairs and to enable it to grow.

In mid-October, numerous documents were made publicly available in the strange criminal prosecution of former Qwest CEO Joseph Nacchio, who refused to comply with several government requests to enable warrantless spying, after which he was prosecuted. Those documents detailed the unbelievably extensive and secret cooperation between the federal government and large telecoms in creating domestic spying programs. After reviewing those documents in full, this is what I wrote:

The cooperation between the various military/intelligence branches of the Federal Government -- particularly the Pentagon and the NSA -- and the private telecommunications corporations is extraordinary and endless. They really are, in every respect, virtually indistinguishable. The Federal Government has its hands dug deeply into the entire ostensibly "private" telecommunications infrastructure and, in return, the nation's telecoms are recipients of enormous amounts of revenues by virtue of turning themselves into branches of the Federal Government.

There simply is no separation between these corporations and the military and intelligence agencies of the Federal Government. They meet and plan and agree so frequently, and at such high levels, that they practically form a consortium.

There are literally no limits on the ways in which the Federal Government, working hand-in-hand with the largest private corporations, spies on American citizens and maintains files on what we do, where we go, with whom we communicate. These secret, unchecked spying programs reach into virtually every realm.

And Mike McConnell's mission in life before becoming Bush's DNI was to forge this relationship between his private sector comrades and the federal government, essentially to privatize our nation's domestic spying programs by creating this corporate-government consortium. And that's precisely the same mission he has now as he crusades manipulatively in the name of "national security" for full-scale amnesty for the same telecoms on whose behalf he worked, even when they deliberately break our laws in how they spy on us.

* * * * *

This morning's Times article repeatedly passes on the claim that telecom amnesty is necessary to preserve what it calls "the federal government's extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime." It quotes a pro-amnesty telecom executive (to whom The Times outrageously provides anonymity) as claiming: "It's a very frayed and strained relationship right now, and that's not a good thing for the country in terms of keeping all of us safe." It quotes Michael Mukasey -- who, in just a couple of weeks, has magically become a leading expert on spying issues sufficient to lend his Sterling Independence and Integrity to parrot the administration's line -- as "saying private companies would be reluctant to provide their 'full-hearted help' if they were not given legal protections."

But this "argument" illustrates the core corruption of the telecom amnesty effort. The telecom industry reaps untold profit as a result of its vast and expanding government contracts. While they -- like everyone else in the world -- would prefer to be immune from consequences when they break the law, the idea that they are going to terminate this relationship if they do not receive amnesty is insultingly false on its face. These are just the same toxic scare tactics that our government and Congress use continuously to justify every decision they make, every expansion of power they seize: "if you don't allow us to do what we want, you will be slaughtered by the Terrorists or your kids will be destroyed by Drug Lords." It's rank, transparent fear-mongering with no end and with very little opposition among our political class.

But more significantly still, there is a very clear and easy way for telecoms to avoid lawsuits in the absence of amnesty: do not break the law. As the surveillance state becomes more invasive and sprawling, it becomes more vital -- not less so -- that we insist on compliance with the laws which we democratically enact in order to regulate this spying and prevent abuse. It's precisely because this spying ring is now so vast that it is incomparably important to demand that our oversight laws are obeyed and to incentivize telcoms and government officials to comply with those laws.

The argument which Cheney and Rockefeller and Mukasey and telecom lobbyists and their servant-pundits in the establishment press are making to justify telecom amnesty is Orwellian and deceitful to its core. They're now stating outright that we need to provide amnesty when telecoms break the law, otherwise they won't continue to do so in the future -- as though that's a bad thing. But that's not a bad thing. It's vital that telecoms know that they cannot break our laws with impunity. Without that, we have no safeguards of any kind against how we are spied on and how those spying powers are abused. And if our largest private corporations with the most expensive lobbyists are free to break our laws, then we literally -- not rhetorically, but literally -- cease to be a country that lives under the rule of law.

* * * * *

Yet look at the array of interests unanimously and obediently aligned in favor of this profoundly corrupt amnesty proposal. The leaders of both parties -- including, especially, those on the Senate Intelligence Committees whose core function is to "assure that [intelligence] activities are in conformity with the Constitution and laws of the United States" -- are working to conceal and reward this lawbreaking. To the extent they're even aware of any of this, our media stars almost unanimously propagandize for protecting telecom lawbreaking. And most strikingly of all, the political movement that spent decades telling Americans that they stood for limited government and the rule of law and against federal incursions into our lives -- the right-wing "conservative" movement -- has boisterously cheered on every one of these lawless expansions of the surveillance state, all because, for now, they are at its helm.

All of this -- the complete suppression of any investigation or accountability for this lawbreaking and the ongoing strengthening of this lawless surveillance state -- is about to happen with Democrats nominally in "control" of both houses of Congress, none of the presidential candidates (other than Chris Dodd and Ron Paul) demonstrating the slightest concern over any of it, and all as a result of telecom lobbyists -- led by Mike McConnell -- controlling how our government functions, what laws we have, and most amazingly, what laws we allow corporations to break with impunity. It's the same process that led our political class to decide astoundingly that it would do nothing upon learning that the President also broke the law for years in how he ordered spying on American citizens. The Washington Post's Congressional reporter Jonathan Weisman recognized on Friday the indispensable role the Senate Majority Leader is playing in all of this:

San Francisco: Why is Harry Reid ignoring the Judiciary Committee's FISA bill and bringing up the SSCI bill? Is telecom amnesty that important to Sen. Reid? If so, why?

Jonathan Weisman: A very good question. Reid has said he will bring up the Intel Committee bill, then allow advocates of the Judiciary Committee bill to bring up theirs as a substitute. That's a big blow, since it will take 60 votes even to consider a vote on the Judiciary version.

Reid says he opposes retroactive immunity for the telecommunications companies, but he seems to be stacking the decks for it.

As Dan Froomkin observed this week: "Historians looking back on the Bush presidency may well wonder if Congress actually existed." In actuality, Congress exists -- as a vital enabling arm of the most extreme abuses of the Bush administration. Could anyone wishing to dispute that depressing fact muster any evidence at all in service of their argument? I don't believe so.

* * * * *

Ultimately, what is most significant about all of this is how the most consequential steps our government takes -- such as endless expansion of its domestic spying programs with literally no oversight and constraints of law -- occur with virtually no public debate or awareness. By contrast, the pettiest of matters -- every sneeze of a campaign aide and every trite, catty gossip item from our moronic travelling press corps -- receives endless, mindless herd-like attention.

The very nature of our country and our government fundamentally transforms step by step, with little opposition. We all were inculcated with the notion that what distinguished our free country from those horrendous authoritarian tyrannies, both right and left, of the Soviet bloc, Latin America and the Middle East were things like executive detentions, torture, secret prisons, spying on their own citizens, unprovoked invasions of sovereign countries, and exemptions from the law for the most powerful -- precisely the abuses which increasingly characterize our government and shape our political values. As but the latest example, read Mark Benjamin's superb though now-numbingly-familiar account of how we tortured Mohamed Farag Ahmad Bashmilah for 19 months and then just let him go once we realized that -- like so many others we've detained and tortured -- he was guilty of nothing.

This doesn't mean there is a complete erosion of freedom equal to all of those societies. Free speech still basically thrives; we elect our leaders; and individuals retain a fair amount of autonomy in their personal choices. But it is simply undeniable that many of the political attributes that were always used to define the oppressive societies against which we were supposedly fighting are now explicitly vested in our own government. By itself, the scope and breadth of domestic spying is just staggering, and much of it is illegal.

No speculation or inferences or rhetorical flourishes are necessary to reach these conclusions. Just go read what has been disclosed about what our government is doing in the dark, with no oversight and in violation of our laws -- and the ways in which our political and media class work feverishly to defend and enable it all -- and there really is no other conclusion which a rational person can reach. In a country that lived under minimal notions of the rule of law, the very idea of having Congress pass a special law to immunize retroactively an entire industry which illegally spied on us, on our own soil, for years would be inconceivable. Yet even in the face of these latest revelations of just how broad and brazen this lawbreaking is, that is, in the absence of unexpected developments, quite likely what is about to happen.

* * * * *

At 5:00 p.m. EST today, I'll be on Sam Seder's Air America Sunday Show, along with Digby and Atrios, to discuss several matters, presumably including this one. It's Sam's last live Sunday show of the year and should be interesting. Those interested can obtain local listings and/or listen to the live feed here.

UPDATE: Chris Dodd is leaving the campaign trail in Iowa to travel to Washington tomorrow to lead an old-fashioned filibuster on the Senate floor against the telecom amnesty bill, an action necessitated by Harry Reid's reprehensible refusal to honor his "hold" and also by Reid's conniving to maximize the prospects that the Senate bill will contain both amnesty and vast new warrantless surveillance powers. Two other Senators at least -- Feingold and Kennedy -- have committed to being on the floor to enable Dodd to take periodic breaks by asking questions. Despite issuing prior statements claiming they would support Dodd's filibuster, none of the other presidential candidates in the Senate -- Clinton, Obama or Biden -- have indicated that they will do so tomorrow.

Dodd is interested in obtaining as much relevant material as he can to read during his filibuster. His office will read comments on various blogs and select numerous comments for Dodd to read. If you're interested in submitting a comment supporting Dodd's filibuster and expressing opposition to the rule-of-law-destroying amnesty bill which Dodd is attempting to derail, you can leave your comment here, on this FDL post, and Dodd's office will review them and choose many for Dodd to read on the Senate floor tomorrow.

Given the imminent Iowa vote, Dodd's presidential campaign may not last that much longer. But it is worthwhile to enable him over the next several weeks to continue to bring attention to these issues, about which he is quite obviously genuinely passionate (and is thus willing to alienate many of his own Senate colleagues by doing this). If you're so inclined, you can also express your support for Dodd's actions -- one of the few inspirational acts of this year by any national political figure -- by donating to his campaign as well.

Glenn Greenwald

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