In his vehement defense of NSA surveillance dragnets Friday, President Obama entirely failed to present a good argument as to why the top-secret, all-encompassing spying programs are not a gross evisceration of Fourth Amendment protected privacy assumptions.
Let's start with straw men. First, Obama reassured the press that Congress has been informed for some years of the surveillance programs, which enable the NSA to collect metadata on pretty much every call, email and instant message made and sent in and from the U.S. He said:
[The programs are] classified but they're not secret in the sense that, when it comes to telephone calls, every member of Congress has been briefed on this program... With respect to all these programs, the releveant intelligence committees are fully briefed on these programs. These are programs that have have been authorized by broad bipartisan majorities repeatedly since 2006. And so, I think at the outset, it's important to understand that your duly elected representatives have been consistently informed on exactly what we're doing.
Congress also passed and extended the Patriot Act, which set the ground for far-reaching privacy breaches in the name of national security. Congress extended the FISA Amendments Act to enable unconstitutional surveillance. Congress also passed the Authorization For the Use of Military Force (AUMF) legislation that handed the executive limitless war-waging powers. Congress' knowledge and participation in entrenching the sprawling surveillance state provides little solace.
Second, the FISA court, which technically rendered legal the NSA's phone and online communications surveillance programs, is hardly an assurance either. FISA court approval is pretty much a given, a rubber stamp on federal agency plans: The court approved each of the 1,856 surveillance requests it received from law enforcement agencies in 2012.
Straw swept aside, let's look at Obama's comment -- intended above all to reassure Americans that their privacy remains intact -- that "nobody is listening to your telephone calls." His point, that what the NSA is tracing is not the content of communications, but their metadata, is true but unreassuring. Least of all because, as Thomas Drake told me, the capabilities for vast communications content monitoring are very much in place too. But beyond that, metadata alone provides the government with huge amounts of personal information and, more chilling still, the ability to track associations and networks. As NSA whistle-blower William Binney told New York's Daily Intel:
"When you take all those records of who's communicating with who, you can build social networks and communities for everyone in the world," mathematician and NSA whistle-blower William Binney — "one of the best analysts in history," who left the agency in 2001 amid privacy concerns — told Daily Intelligencer. "And when you marry it up with the content," which he is convinced the NSA is collecting as well, "you have leverage against everybody in the country."
"You are unique in the world," Binney explained, based on the identifying attributes of the machines you use. "If I want to know who's in the tea party, I can put together the metadata and see who's communicating with who. I can construct the network of the tea party. If I want to pass that data to the IRS, then I can do that. That's the danger here."
The government's hoarding of metadata aligns with the very ideology underpinning U.S. law enforcement nationally and internationally (which I have noted here before with regards to drone strike and stop-and-frisk targeting): a reliance on patterns of behaviors and "signatures," as opposed to targeting specific individuals and content for known criminal or terrorist acts. The government hoards information -- as a drone might hover over tribal lands in Pakistan -- waiting and watching for signature patterns and behaviors deemed unusual or dangerous.
This preemptive and prefiguring policing underpins national security policy. Under it, as NSA whistle-blower Thomas Drake told me on Thursday, "everyone is a person of interest." The NSA's metadata hoarding is not only chilling because communications metadata actually provides a hell of a lot of information, but also because tracking metadata is part of a dangerous and increasingly entrenched government tendency to prefigure threats in the name of national security -- and as such opens the door to wide-ranging civil liberties and human rights abuses.
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