The Obama passport snooping and the unchecked surveillance state

Whatever the outcome is of the Obama passport investigation, the severe dangers of allowing warrantless domestic spying should be obvious.

By Glenn Greenwald
Published March 21, 2008 11:06AM (EDT)

(updated below - Update II)

There are far too many unanswered questions to enable rational conclusions to be drawn regarding the parties responsible for the multiple breaches of Barack Obama's passport file and/or what motivated those breaches. Obsessive Clinton-haters who are instantaneously insinuating that Hillary is to blame are as grossly irresponsible as those blind Hillary supporters mindlessly dismissing the significance of what happened due to hostility towards Obama or out of some petty concern that it might help him politically. The potential that there was serious wrongdoing here is self-evident, and Time's Karen Tumulty raises all the right questions that require a genuine, independent and expedited investigation.

But there are some conclusions that one can immediately reach. This disturbing episode provides yet more vivid proof of how dangerous and misguided it is to continue to vest the Federal Government with the power to spy and collect data on the activities of its citizens, and, particularly, to do so without any oversight or real safeguards.

The domestic spying arm of the U.S. Government has grown steadily over the last several decades but has exploded since 9/11. Virtually all imaginable categories of invasive information about the private lives of innocent Americans -- from telephone calls and email correspondence to health and prescription records and even the most innocuous incidents -- are now collected and stored in digital dossiers by the U.S. Government and are accessible to untold numbers of public and private employees. This explosion in domestic surveillance has been accompanied by the patently foolish assumption that government officials are so well-intentioned, honorable and interested in using this data only for our own Good that we can trust them to compile and use it without external checks -- such as judicial warrants -- because the danger of abuse is so low.

As Julian Sanchez noted in a recent Los Angeles Times Op-Ed, incidents like the snooping into Obama's passport file are not the exception, and are not even merely the rule, but are the pervasive and inevitable outcome of allowing government officials to spy on Americans without real oversight:

Without meaningful oversight, presidents and intelligence agencies can -- and repeatedly have -- abused their surveillance authority to spy on political enemies and dissenters. . . .

Harvard University legal scholar William Stuntz has argued that the framers of the Constitution viewed the 4th Amendment as a mechanism for protecting political dissent. In England, agents of the crown had ransacked the homes of pamphleteers critical of the king -- something the founders resolved that the American system would not countenance.

After recounting the decades of systematic abuses of unchecked spying power by every President since Warren Harding -- abuses which were curbed only with the 1978 enactment of FISA's requirement of judicial warrants for eavesdropping -- Sanchez explained:

Your personal phone calls and e-mails may be of limited interest to the spymasters of Langley and Ft. Meade. But if you think an executive branch unchecked by courts won't turn its "national security" surveillance powers to political ends -- well, it would be a first.

I had my own relatively inconsequential but still creepy and disturbing experience with precisely this sort of abuse. In July, 2006, six months or so after I began blogging, scores of right-wing blogs were were in one of their trademark feeding frenzies, obsessively investigating my personal life, including where I spend my time. In the midst of that, a long-time, regular commenter on multiple right-wing blogs, "Baggi" -- who had long claimed to be a Customs and Immigration officer with the U.S. Government -- posted this comment at the widely-read right-wing blog, Wizbang, addressed to Wizbang's Kevin Aylward:

The "and more" was a nice, creepy touch. The information he posted was entirely accurate and unknowable in the absence of access to government passport or customs records. And there is nothing unusual about any of that. As Wired's Ryan Singel documented with multiple examples in writing about that "Baggi" incident: "That would hardly be the first time a government employee misused a surveillance database."

This happens all the time. It's an inevitable outcome of allowing government spying with no oversight. Just two weeks ago, the DOJ acknowledged again that its own FBI, for years, has been severely abusing the Patriot Act's "national security letters," which allow the FBI to obtain personal information on Americans with no warrants and no oversight. Extremely invasive information has been obtained far beyond what the law allows, regarding tens of thousands of American citizens accused of no wrongdoing whatsoever, and without there even being a pending criminal investigation.

And yet what is Congress doing about all of this? Until the House refused last week to pass the new Draconian FISA bill demanded by the White House, what they've been doing is vesting greater and ever more invasive spying powers in the Bush administration and subsequent administrations with no oversight whatsoever and no warrant requirements.

The "Protect America Act" passed and signed into law last August, as well as the Rockefeller/Cheney bill passed by the Senate in January, authorize inconceivably broad domestic spying powers -- to listen in on all of our international calls and read all of our international emails -- with no requirement to obtain a warrant and no oversight of any kind. Just listen to Sen. Russ Feingold's extremely succinct and accurate description of what the Senate FISA bill allows:

And in one of the most under-discussed stories of the year, The Wall St. Journal reported two weeks ago that the NSA -- unbeknownst even to most members of Congress and with no judicial oversight at all -- "now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records."

Why would anyone trust the current administration and subsequent administrations -- not just their political officials but the thousands and thousands of permanent government and private employees -- to spy on Americans, and store and collect extremely invasive information about Americans' private lives, with no oversight or requirement to demonstrate probable cause to a court -- as the Founders required -- to believe that the citizen being spied on has actually done something wrong? Whatever the outcome of the Obama passport investigation is, whoever the parties responsible are and whatever their motives, shouldn't this rather conclusively demonstrate the complete folly, the serious dangers, of continuing to vest in the government powers to spy on and collect data about Americans with no oversight?

UPDATE: There are now reports that Hillary Clinton's passport file was also breached -- last year -- and that Condoleezza Rice told her about this only today. No other details -- who did the breaching, whether they were fired, why this is being revealed only now -- are yet available. I wonder if this revelation will cause those blaming the Clintons for the Obama incident to re-consider, or whether those Clinton supporters dismissing the importance of the Obama incident will continue to claim this is all totally unimportant.

UPDATE II: There are now also reports, with no details, that McCain's passport file was breached as well. Clearly, though, we can all rest easy that this abuse is confined only to passport files and would never extend to things like warrantless eavesdropping on telephone conversations and reading of emails or unchecked acquisition of personal documents such as health and drug records. In those cases, we can trust political officials to exercise those powers without oversight. Clearly.

Glenn Greenwald

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