Part 1 – Status of U.S. National Surveillance State

The concept of a Democratic National Surveillance State brings to mind a number of oxymoronic statements.(103) For example: A cuddly porcupine, clear as mud, definitely maybe, etc. Perhaps we would all be better off just dismantling the surveillance state entirely and throw it in the waste bin.(104) In addition, we would also be required to remove all the laws associated with the surveillance state.(105)  It is pleasant to dream of those visions of the future, however the reality is that will never be more than a dream, thus we find national security states operating on a spectrum somewhere in between Democratic and Authoritarian.

“Democracy is a device that ensures we shall be governed no better than we deserve.”

-George Bernard Shaw

On June 6th, 2013 top-secret NSA documents depicting an expansive and powerful surveillance program that included the help and legally required collaboration of U.S. telecommunications and technology companies, were publicly leaked.(106)  The program exposed, “Prism”, while by itself may not be very surprising to many people because it seems to be a common belief that government should have reasonable ability to look into records for security purposes when it has probable cause.(107) In essence, an operational program like “Prism” in of itself is about as expansive as one can get.

Part 1 - Prism Slide

The “Prism” program, according to the leaked document seen above, included name brand technology companies such as Microsoft, Yahoo, Google, Facebook, PalTalk, Youtube, Skype, AOL, and Apple. The U.S. Department of Justice utilized current legal instruments in the form of FISA Warrants and National Security letters to compel and extract this information. Without going into too much detail essentially these instruments enabled the government to secretly request information of which the receiver of the request could not publicly disclose nor could they deny.(108) It was also done through a court system set up by the government that nobody but the government could present a case, and this was done in secrecy from the public.(109)

The U.S. Government also used these same legal instruments and system to request comprehensive and ongoing meta-data phone records on all Verizon customers.(110) Meta-Data in laymen terms is simply the transactional data that is captured through the process of making a call. It is not the contents of the call. Meta-Data in of its self is rather harmless, however when analyzed with other identification databases could illuminate a wealth of intelligence.(111) Although only the Verizon FISA warrants and the national security letters were leaked, it is reasonable to assume given the scope of the “Prism” program that almost every U.S. telecommunications provider has been served with one.(112)

During the same period these programs were disclosed, it was also leaked that the current U.S. administration was tapping phone lines and capturing emails of members of the associated press.(113) It was doing this under the suspicion the reporters being placed under surveillance were corroborating with governmental insiders to leak classified national security information.(114) The reason this is significant is because there are processes the Department of Justice is required to follow when potentially investigating members of the press.(115) These procedures are in place to protect the notion of freedom of speech and the press in the United States.(116) The implication of the leaked information disclosing the U.S. governments secret collection of phone calls and emails of specific press personnel has allegedly had a significant dampening effect on members of the Associated Press from being able to privately confirm information with government officials.(117) Jill Abramson was the most recent Executive Editor of the New York Times and in January 2014 said the Obama administration is the most secretive administration she has ever covered in her long career in journalism.(118)  The effect of this dampening effect would be that whatever the government is saying publicly by proxy becomes truth because there is no check on the validity of the information due to fear of retribution to participating government insiders.

The reasoning behind these investigations is the manifestation of a multitude of “whistle blowing” national security and intelligence leaks occurring under the current administration.(119) More than under any previous administration combined. The current administration under the guise of national security is doing everything it can to keep insiders and the press from disclosing damaging and perhaps illegal actions taken by our government.(120)

To quickly summarize, its has been confirmed the current U.S. administration has been doing the following:

  1. Exercising the use of a secret subset rule of law under the guise of National Security to fight terrorism, while also saying the war on terror is subsiding.
  2. Investigating the Associated Press to suppress leaks through new and broad interpretations of the law.
  3. Collecting data of all types against all foreign people and U.S. domestic citizens.

There is a probable fourth notable action the current U.S administration is taking. That action is using government agencies to suppress and intimidate political enemies, such as the IRS targeting conservative groups for audits and tax-exempt status, while scrutinizing liberal leaning groups much less if at all for the same issues. While the investigation into this fourth action is still ongoing, in the context of the other validated and corroborated dubious actions it is hard to imagine that senior White House staff, or even the President himself, if not directly order these actions, simply did nothing to stop them, most likely by “accident”. The irony being that nothing happens by accident in politics.  In July 2014 over half of all Inspector Generals in charge of governmental oversight signed a letter and sent it to the Senate Oversight committee.(121)  The main thrust of the letter was to inform the Senate Oversight Committee that a meaningful amount of critical government agencies are withholding information from oversight inspectors.(122) Government agencies are claiming “privileged information” status from oversight based on a new interpretation of the rules.(123)

While each one of those actions above by itself would probably not constitute a strong argument the U.S. Government is far into Authoritarian Surveillance State territory. But all of the corroborated actions together create an overly compelling case for that argument to ring true. Noam Chomsky would probably say this is the perfect storm for the U.S. administration to meaningfully “manufacture the consent” of domestic and foreign people.(124) Let’s look at what one of the leading thinkers, Jack Balkin from Yale Law School, on the National Surveillance State as it relates to the Constitution thinks about potential threats to our freedoms in my next post.

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