The Digital Surveillance State: Vast, Secret, and Dangerous

It is unsurprising that the 9/11 attack fostered a massive expansion of America’s already sprawling Surveillance State. But what is surprising, or at least far less understandable, is that this growth shows no signs of abating even as we approach almost a full decade of emotional and temporal distance from that event. The spate of knee-jerk legislative expansions in the immediate aftermath of the 9/11 trauma—the USA PATRIOT Act—has actually been exceeded by the expansions of the last several years—first secretly and lawlessly by the Bush administration, and then legislatively and out in the open once Democrats took over control of the Congress in 2006. Simply put, there is no surveillance power too intrusive or unaccountable for our political class provided the word “terrorism” is invoked to “justify” those powers.

The More-Surveillance-Is-Always-Better Mindset

Illustrating this More-Surveillance-is-Always-Better mindset is what happened after The New York Times revealed in December, 2005 that the Bush administration had ordered the National Security Agency to eavesdrop on American citizens without the warrants required by law and without any external oversight at all. Despite the fact that the 30-year-old FISA law made every such act of warrantless eavesdropping a felony, “punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both,” and despite the fact that all three federal judges who ruled on the program’s legality concluded that it was illegal, there was no accountability of any kind. The opposite is true: the telecom corporations which enabled and participated in this lawbreaking were immunized by a 2008 law supported by Barack Obama and enacted by the Democratic Congress. And that same Congress twice legalized the bulk of the warrantless eavesdropping powers which The New York Times had exposed: first with the 2007 Protect America Act, and then with the 2008 FISA Amendments Act, which, for good measure, even added new warrantless surveillance authorities.

Not even revelations of systematic abuse can retard the growth of the Surveillance State or even bring about some modest accountability. In 2007, the Justice Department’s own Inspector General issued a report documenting continuous abuses by the FBI of a variety of new surveillance powers vested by the Patriot Act, particularly the ability to obtain private, invasive records about Americans without the need for any judicial supervision (via so-called “National Security Letters” (NSLs)). The following year, FBI Director Robert Mueller confirmed ongoing abuses subsequent to the time period covered by the initial IG report.

Again, the reaction of the political class in the face of these revelations was not only to resist any accountability but to further expand the very powers being abused. When then-candidate Obama infuriated many of his supporters in mid-2008 by announcing his support for the warrantless–surveillance expanding FISA Amendments Act, he assured everyone that he did so “with the firm intention—once [he’s] sworn in as President—to have [his] Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.”

Not only has nothing like that occurred, but Congress has twice brushed aside the privacy and abuse concerns about the Patriot Act highlighted by the DOJ’s own report and long raised by Senator Russ Feingold. They did so when voting overwhelmingly to extend the provisions of that law unchanged: first in 2006 by a vote of 89-10, and again this year—with the overt support of the Obama administration—when it once again extended the Patriot Act without even a single added oversight protection. Even after The New York Times in 2009 twice revealed substantial and serious abuses in the very warrantless eavesdropping powers which Obama voted to enact, the administration and the Congress show no interest whatsoever in imposing any added safeguards. The logic of the Surveillance State is that more is always better: not just more powers, but in increasingly unchecked form.

And this is to say nothing of the seemingly more mundane, though still invasive, surveillance powers which receive little attention. When Seung-Hui Cho went on a shooting rampage at Virginia Tech in 2007, this passage appeared buried in an ABC News report on the incident: “Some news accounts have suggested that Cho had a history of antidepressant use, but senior federal officials tell ABC News that they can find no record of such medication in the government’s files.” Such “files” are maintained through a 2005 law which, the Government claims, authorizes it to monitor and record all prescription drug use by all citizens via so-called “Prescription Drug Monitoring Programs.” And there is a slew of other under-discussed surveillance programs whereby the U.S. government stores vast data on our private activities: everything from every domestic telephone call we make to “risk assessment” records based on our travel activities. A bipartisan group of Senators is currently promoting mandated “biometric ID cards” for every American as a purported solution to illegal immigration.

Not only has Obama, in the wake of this massive expansion, blocked any reforms, he has taken multiple steps to further expand unaccountable and unchecked surveillance power. For the last year, the Obama Justice Department has been trying to convince federal courts to extend its warrantless surveillance powers beyond even what the Patriot Act provides to encompass private email and Internet browsing records, a position which would allow the FBI and other federal agencies to acquire email and browsing records of American citizens—including those who are not suspected of any wrongdoing—without any warrants or judicial supervision of any kind. With defeat in the courts appearing likely, it was recently revealed by The Washington Post that the administration is agitating for Congressional action to amend the Patriot Act to include such Internet and browsing data among the records obtainable by NSLs.

Blocking Even Modest Safeguards

Worse still, Obama has all but single-handedly prevented additional oversight mechanisms on the intelligence community by threatening to veto even the modest oversight proposals favored by the House Democratic leadership. That veto threat just resulted in the removal of such mechanisms by the Senate Intelligence Committee from the latest rendition of the Intelligence Authorization Act. As Time’s Massimo Calebresi recently reported, these reforms would merely have required the Executive Branch to notify the full House and Senate Intelligence Committees “when they launch any covert action or other controversial program,” as well as vest those Committees with “the power to task the Government Accountability Office (GAO) with auditing any intelligence program” to ensure compliance with the law.

What makes Obama’s vehement opposition even to these mild safeguards so striking is that this lack of oversight was one of the principal weapons used by the Bush administration to engage in illegal intelligence activities. The Bush administration, at best, would confine its briefings to extremely vague information disseminated only to the so-called “Gang of Eight”—comprised of 8 top-ranking members of the House and Senate—who were impeded by law and other constraints from taking any action even if they learned of blatantly criminal acts.

That’s what makes the current oversight regime a sham process: it allows the administration to claim that it “briefed” selected Congressional leaders on illegal surveillance programs, but do so in a way that ensures there could be no meaningful action or oversight, because those individuals are barred from taking notes or even consulting their staff and, worse, because the full Intelligence Committees are kept in the dark and thus could do nothing even in the face of clear abuses. The process even allows the members who were briefed on illegal surveillance activities to claim they were powerless to stop illegal programs—which is exactly the excuse Democratic Senators who were briefed on the illegal NSA program invoked to justify their inaction.

Here’s how Richard Clarke explained the current “oversight” regime in July, 2009, on The Rachel Maddow Show:

MADDOW: Do you think that the current system, the gang of eight briefing system, allows the CIA to be good at spying and to be doing their work legally?

CLARKE: I think briefings of the gang of eight, those very sensitive briefings, as opposed to the broader briefings—the gang of eight briefings are usually often a farce. They catch them alone, one at the time usually. They run some briefing by them.

The congressman can’t keep the briefing. They can’t take notes. They can’t consult their staff. They don’t know what the briefings are about in advance. It’s a box check so that the CIA can say it complied with the law. It’s not oversight. It doesn’t work.

And yet, the more surveillance abuse and even lawbreaking is revealed, the more emphatic is Executive Branch opposition to additional safeguards and oversights, let alone to scaling back some of those powers.

Thus, even when our National Security State gets caught red-handed breaking the law or blatantly abusing its powers, the reaction is to legalize their behavior and thus further increase their domestic spying authority. Apparently, eight years of the Bush assault on basic liberties was insufficient; there are still many remaining rights in need of severe abridgment in the name of terrorism. It never moves in the other direction: toward a reeling in of those post 9/11 surveillance authorities or at least the imposition of greater checks and transparency. The Surveillance State not only grows inexorably, but so does the secrecy and unaccountability behind which it functions.

The results of this mindset are as clear as they are disturbing. Last month’s three-part Washington Post series, entitled “Top Secret America,” provided a detailed picture of what has long been clear: we live under a surveillance system so vast and secretive that nobody—not even those within the system—knows what it does or how it functions. Among the Post’s more illustrative revelations: “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.” To call that an out-of-control, privacy-destroying Surveillance State is to understate the case.

More Surveillance, Less Safety

What makes this leviathan particularly odious is that it does not even supply the security which is endlessly invoked to justify it. It actually does the opposite. As many surveillance experts have repeatedly argued, including House Intelligence Committee member Rush Holt, the more secret surveillance powers we vest in the government, the more unsafe we become. Cato’s Julian Sanchez put it this way: “We’ve gotten so used to the ‘privacy/security tradeoff’ that it’s worth reminding ourselves, every now and again, that surrendering privacy does not automatically make us more secure—that systems of surveillance can themselves be a major source of insecurity.”

That’s because the Surveillance State already collects so much information about us, our activities and our communications—so indiscriminately and on such a vast scale—that it is increasingly difficult for it to detect any actual national security threats. NSA whistle blower Adrienne Kinne, when exposing NSA eavesdropping abuses, warned of what ABC News described as “the waste of time spent listening to innocent Americans, instead of looking for the terrorist needle in the haystack.” As Kinne explained:

By casting the net so wide and continuing to collect on Americans and aid organizations, it’s almost like they’re making the haystack bigger and it’s harder to find that piece of information that might actually be useful to somebody. You’re actually hurting our ability to effectively protect our national security.

As the Post put it in its “Top Secret America” series:

The NSA sorts a fraction of those [1.7 billion e-mails, phone calls and other types of daily collected communications] into 70 separate databases. The same problem bedevils every other intelligence agency, none of which have enough analysts and translators for all this work.

That article details how ample information regarding alleged Ft. Hood shooter Nidal Hassan and attempted Christmas Day bomber Umar Abdulmutallab was collected but simply went unrecognized. Similarly, The Washington Post’s David Ignatius previously reported that Abdulmutallab was not placed on a no-fly list despite ample evidence of his terrorism connections because information overload “clogged” the surveillance system and prevented its being processed. Identically, Newsweek’s Mike Isikoff and Mark Hosenball documented that U.S. intelligence agencies intercept, gather and store so many emails, recorded telephone calls, and other communications that it’s simply impossible to sort through or understand what they have, quite possibly causing them to have missed crucial evidence in their possession about both the Fort Hood and Abdulmutallab plots:

This deluge of Internet traffic—involving e-mailers whose true identity often is not apparent—is one indication of the volume of raw intelligence U.S. spy agencies have had to sort through … . The large volume of messages also may help to explain how agencies can become so overwhelmed with data that sometimes it is difficult, if not impossible, to connect potentially important dots.

As a result, our vaunted Surveillance State failed to stop the former attack and it was only an alert airplane passenger who thwarted the latter. So it isn’t that we keep sacrificing our privacy to an always-growing National Security State in exchange for greater security. The opposite is true: we keep sacrificing our privacy to the always-growing National Security State in exchange for less security.

The Privatization of the Surveillance State

Perhaps the most disturbing aspect of our mammoth Surveillance State is that the bulk of its actions are carried out not by shadowy government agencies, but by large private corporations which are beyond the reach of democratic accountability. At this point, perhaps it’s more accurate to view the U.S. Government and these huge industry interests as one gigantic, amalgamated, inseparable entity—with a public division and a private one. In every way that matters, the separation between government and corporations is nonexistent, especially (though not only) when it comes to the Surveillance State. Indeed, so extreme is this overlap that when Michael McConnell was nominated to be Bush’s Director of National Intelligence after serving for a decade as Vice President of Booz Allen (prior to which he was head of the NSA under Bush 41 and Clinton), he told The New York Times that his ten years of working “outside the government,” for Booz Allen, would not impede his ability to run the nation’s intelligence functions. That’s because his Booz Allen work was indistinguishable from working for the government, and therefore—as he put it—being at Booz Allen “has allowed me to stay focused on national security and intelligence communities as a strategist and as a consultant. Therefore, in many respects, I never left.

As the NSA scandal revealed, private telecom giants and other corporations now occupy the central role in carrying out the government’s domestic surveillance and intelligence activities—almost always in the dark, beyond the reach of oversight or the law. As Tim Shorrock explained in his definitive 2007 Salon piece on the relationship between McConnell, Booz Allen, and the intelligence community, in which (to no avail) he urged Senate Democrats to examine these relationships before confirming McConnell as Bush’s DNI: “[Booz Allen’s] website states that the Booz Allen team ‘employs more than 10,000 TS/SCI cleared personnel.’ TS/SCI stands for top secret-sensitive compartmentalized intelligence, the highest possible security ratings. This would make Booz Allen one of the largest employers of cleared personnel in the United States.”

As the Post series documented, private contractors in America’s Surveillance State are so numerous and unaccountably embedded in secret government functions that they are literally “countless”:

Making it more difficult to replace contractors with federal employees: The government doesn’t know how many are on the federal payroll. Gates said he wants to reduce the number of defense contractors by about 13 percent, to pre-9/11 levels, but he’s having a hard time even getting a basic head count.

“This is a terrible confession,” he said. “I can’t get a number on how many contractors work for the Office of the Secretary of Defense,” referring to the department’s civilian leadership.

In sum, the picture that emerges from the Post series is that we have a Secret Government of 854,000 people, so vast and so secret that nobody knows what it does or what it is. That there is a virtually complete government/corporate merger when it comes to the National Security and Surveillance State is indisputable: “Private firms have become so thoroughly entwined with the government’s most sensitive activities that without them important military and intelligence missions would have to cease or would be jeopardized.”

As little oversight as Surveillance State officials have, corporate officials engaged in these activities have even less. Relying upon profit-driven industry for the intelligence community’s “core mission” is to ensure that we have Endless War and an always-expanding Surveillance State. After all, the very people providing us with the “intelligence” that we use to make decisions are the ones who are duty-bound to keep this Endless War and Surveillance Machine alive and expanding because, as the Post put it, they are “obligated to shareholders rather than the public interest.” The Surveillance State thus provides its own fuel and own rationale to ensure its endless expansion, all while resisting any efforts to impose transparency or accountability on it.

And as we acquiesce to more and more sacrifices of our privacy to the omnipotent Surveillance State, it builds the wall of secrecy behind which it operates higher and more impenetrable, which means it constantly knows more about the actions of citizens, while citizens constantly know less about it. We chirp endlessly about the Congress, the White House, the Supreme Court, the Democrats and Republicans, but this is the Real U.S. Government: a massive Surveillance State functioning in darkness, beyond elections and parties, so secret, vast and powerful that it evades the control or knowledge of any one person or even any organization.

Also from this issue

Lead Essay

  • In his lead essay, Glenn Greenwald argues that the digital surveillance state is out of control. It intercepts our phone calls, keeps track of our prescription drug use, monitors our email, and keeps tabs on us wherever we go. For all that, it doesn’t appear to be making us safer. Accountability has been lost, civil liberties are disappearing, and the public-private partnerships in this area of government action raise serious questions about the democratic process itself. It’s time we stood up to do something about it.

Response Essays

  • John Eastman argues that the U.S. Constitution grants the President the authority to conduct surveillance of national enemies during wartime, including electronic surveillance. The Foreign Intelligence Surveillance Act cannot properly encroach on this power, and in fact it does no such thing. Warrantless wiretaps are therefore both strategically appropriate and constitutional. The nation remains at war, and such measures will remain appropriate at least until the end of hostilities.

  • Paul Rosenzweig argues that Glenn Greenwald has underestimated the continued oversight function of Congress, the media, and public-interest watchdog groups. He adds that effectiveness — while difficult to measure — appears to have been reasonably good. He concludes that privacy and civil liberties advocates need to save their fire for genuinely abusive programs, not mere threats or possibilities of abuse

  • Julian Sanchez draws our attention to the wider picture: The surveillance state extends beyond one or another potentially objectionable program. Its roots are structural, in the ease with which data can be collected and analyzed today. It is and will continue to be very important to get the legal and technological architecture of surveillance right. Creating mechanisms and institutions that safeguard the innocent and prevent abuses of power is an enormous challenge. Even building an abuse-free surveillance state would not do, because we cannot guarantee that it will be managed only by benign administrators.