by Ben Shapiro
The rationalization for an increase in surveillance began with George W. Bush, after the horrific attacks of September 11, 2001. In the days after al-Qaeda terrorists flew passenger airliners into the World Trade Center towers and the Pentagon, and passengers aboard United Airlines flight 93 crashed their airplane into a field in Shanksville, Pennsylvania, President Bush declared a war on terror: “Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated.”1
Six weeks later, President Bush signed into law the so-called Patriot Act, which allowed for increased security measures, including surveillance of Americans under certain conditions. He stated, “With my signature, this law will give intelligence and law enforcement officials important new tools to fight a present danger. . . . As of today, we’re changing the laws governing information-sharing. And as importantly, we’re changing the culture of our various agencies that fight terrorism. Countering and investigating terrorist activity is the number one priority for both law enforcement and intelligence agencies. Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law that I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones.” Bush added that the law “upholds and respects the civil liberties guaranteed by our Constitution.”2
Barack Obama was a lowly state senator from Illinois at the time. But he opposed the essence of the Bush foreign policy. The day before Bush’s speech, Obama stated, “The essence of this tragedy, it seems to me, derives from a fundamental absence of empathy on the part of the attackers: an inability to imagine, or connect with, the humanity and suffering of others. . . . it grows out of a climate of poverty and ignorance, helplessness and despair.”3
Global redistributionism was the answer, not surveillance or force.
As a senator, Obama worried about the use of the Patriot Act to violate civil liberties; he even sent a letter to the Bush administration asking that the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy, as the three-part standard in the Senate bill would mandate. “[T]he government should be required to certify that the person whose records are sought has some connection to a suspected terrorist or spy.”4
Obama’s future vice president, then-senator Joe Biden (D-DE), criticized the Bush White House’s use of the Patriot Act to monitor patterns in phone conversations. “I don’t have to listen to your phone calls to know what you’re doing. If I know every single phone call you made, I’m able to determine every single person you talked to. I can get a pattern about your life that is very, very intrusive. . . . If it’s true that 200 million Americans’ phone calls were monitored—in terms of not listening to what they said, but to whom they spoke and who spoke to them—I don’t know, the Congress should investigative this,” Biden said in the aftermath of reports about the Bush NSA getting warrantless records of phone calls within the United States.5
Once in office, President Obama doubled down on his perspective: American intransigence had created the war on terror. “All too often,” Obama said in his first presidential interview, symbolically granted to Al Arabiya, “the United States starts by dictating . . . and we don’t always know all the factors that are involved. So let’s listen.”6
Fast-forward four years. Obama was listening . . . to American citizens, Bush-style. That despite the fact that according to Obama, the war on terror had ended. In March 2013, at the National Defense University, a triumphant Obama explained that he had brought the war on terror to a victorious close—and in the process, he explained where that dastardly Bush character had gone wrong: “expanded surveillance . . . raised difficult questions about the balance that we strike between our interests in security and our values of privacy. And in some cases, I believe we compromised our basic values—by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law.”
Now that Obama had taken over, however, things had changed. “[W]e have to recognize that the threat has shifted and evolved from the one that came to our shores on 9/11,” Obama stated.7
It was time to go back to the pre-9/11 Clintonian mind-set of antiterror as law enforcement.
So why, exactly, was the Obama National Security Agency ramping up the most intrusive surveillance of American citizens in the history of the country?
THE CHARGES
Historically, the provisions of 18 U.S. Code § 241 were passed as a portion of the Civil Rights Act of 1964 in order to prevent attacks by private citizens on the rights of blacks. In order to enable it to be effectively used, the Supreme Court declared in United States v. Price (1966), “We think that history leaves no doubt that, if we are to give § 241 the scope that its origins dictate, we must accord it a sweep as broad as its language.” The Department of Justice notes that unlike other conspiracy laws, the so-called civil rights conspiracy statute does not require that a conspirator “commit an overt act prior to the conspiracy becoming a crime.” In most conspiracy cases, one predicate act is necessary to establish an underlying crime; in the case of violating civil rights, organizing to do so is enough. And, as the Justice Department states, “The offense is punishable by a range of imprisonment up to a life term or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.”8 As we will see, the Obama administration has repeatedly violated the rights of American citizens in surveilling them in violation of the Fourth Amendment. And unlike prior administrations, the Obama administration cannot even credibly claim that it was doing so for national security purposes, given its public proclamations to the contrary.
Section 1809 of Title 18 of the U.S. Code similarly prohibits violation of privacy rights via electronic surveillance “under color of law”—meaning with the appearance of authority. That section of the code explicitly provides exceptions under which such information can be gathered. Under the Patriot Act, the attorney general or his subordinates can authorize an application to a judge for an order granting the right to surveil citizens to prevent terrorism. However, authority for blanket surveillance is not granted by the Patriot Act, merely specific surveillance. As we will see, it was precisely that sort of blanket surveillance the Obama administration embraced to the fullest extent of the law.
And when it came time to come clean with the American people, the Obama administration involved itself in a conspiracy of silence that forced some its most prominent members into perjury.
“THEY QUITE LITERALLY CAN WATCH YOUR IDEAS FORM AS YOU TYPE”
On March 12, 2013, Director of National Intelligence James Clapper appeared before the Senate Intelligence Committee. Senator Ron Wyden (D-OR) asked Clapper about the nature of American intelligence gathering on fellow Americans. “This is for you, Director Clapper, again on the surveillance front,” he asked. “Last summer, the NSA director was at a conference, and he was asked a question about the NSA surveillance of Americans. He replied, and I quote here, ‘The story that we have millions or hundreds of millions of dossiers on people is completely false.’ . . . [D]oes the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
Clapper answered: “No, sir.” Then he added, “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”9
There was only one problem. That was a lie. But he wasn’t the only one twisting the truth. That same week, NSA director general Keith Alexander appeared before the House Emerging Threats and Capabilities Subcommittee of the Armed Services Committee. There, no less than fourteen times, he denied that the NSA had the ability to check Americans’ communications.10 At the Aspen Institute conference just a few months later, Alexander said, “To think we’re collecting on every U.S. person . . . that would be against the
law. . . . The fact is we’re a foreign intelligence agency.”11
Oops.
On June 5, 2013, leftist journalist Glenn Greenwald at the Guardian broke news of a deeply disturbing NSA program designed to collect records of millions of U.S. customers. The court order allowing such “ongoing, daily basis” surveillance suggested, as Greenwald wrote, that “under the Obama administration the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk—regardless of whether they are suspected of any wrongdoing.” The numbers of the parties, location data, call duration, and time all calls ended up in the hands of the government. Overall, Greenwald reported, the surveillance represented a massive increase from the Bush years. Two Democratic senators, Wyden and Mark Udall (D-UT), actually wrote the Obama administration to complain that “most Americans would be stunned to learn the details of how these secret court opinions have interpreted” the relevant provisions of the Patriot Act authorized in the aftermath of 9/11.12
The Obama administration immediately responded by saying it needed the information for national security reasons—even though Obama had recently declared the war on terror largely over. Leaker and liar par excellence James Clapper told the media, “information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats.” He blasted the “unauthorized disclosure of information about this important and entirely legal program,” which he called “reprehensible,” and he suggested that Americans had been put at risk by being made aware that the government was watching them.
The very next day, the Washington Post had a similarly shocking scoop. The NSA and FBI were “tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs.” The program, apparently created in the Bureau of Scary-Sounding Code Names, was called PRISM. The PRISM program bragged in internal documents that it had access directly to “servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.”13 The NSA covered millions of dollars’ worth of costs to help grease the skids for the Internet providers. That revelation broke wide open the companies’ widespread denials of involvement in surveillance.14
And just as Greenwald reported, although the program had started under Bush, it expanded exponentially under Obama. In 2008, the court handling requests for warrants under the Foreign Intelligence Surveillance Act (FISA) banned certain searches of U.S. communications by the NSA; in 2011, the Obama administration even asked the FISA court to throw out limits of NSA spying on phone calls and emails, requesting permission for deliberate searches of such communications. The court complied, allowing the NSA to keep U.S. communications for six years.15
The PRISM program, according to the Post, made it possible for the NSA to grab virtually “anything it likes.” “They quite literally can watch your ideas form as you type,” said a career intelligence officer, who leaked the information to the Post.16 A forty-one-slide PowerPoint presentation about PRISM stated openly that the program cost $20 million per year. The slide show further recommended that NSA employees use both Upstream, a collection of communications on fiber cables and infrastructure allowing government employees to grab data as it “flows past,” and PRISM. The information, once gathered, is passed on to one of myriad different agencies, including the FBI, CIA, or NSA. As of April 5, 2013, there were 117,675 active surveillance targets in the counterterrorism database.17
Later reports revealed that the NSA didn’t restrict its information gathering to computers and phone calls—the NSA could tap data held on smartphones, including contact lists, SMS traffic, and locations of cell phone users. The NSA could hack iPhones and BlackBerrys.18
The supposed legal basis for all of this information gathering was Patriot Act Section 215, which states that the government can push businesses to turn over information to it based on national security need. But the information sought “must be ‘relevant’ to an authorized preliminary or full investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities.” The section also required congressional monitoring of such activities.19 How this information was “relevant” was never explained. And most members of Congress had no knowledge of these programs. So much for congressional monitoring.
The leaker of the information, it turned out, was one Edward Snowden, a former employee of Booz Allen Hamilton, a government contractor with the NSA. Snowden considered himself a whistle-blower. “Everyone everywhere now understands how bad things have gotten—and they’re talking about it,” Snowden said. “They have the power to decide for themselves whether they are willing to sacrifice their privacy to the surveillance state. . . . My sole motive is to inform the public as to that which is done in their name and that which is done against them.”20
But the revelations did not end there. Just days later, Greenwald broke the story that the NSA had a datamining tool called Boundless Informant, which had gathered some three billion pieces of intelligence from U.S. computer networks in just one month.21
“WE DON’T HAVE A DOMESTIC SPYING PROGRAM”
On June 7, President Obama—the great civil libertarian and victorious luminary in the war on terror—finally spoke up. But instead of taking credit for the program, he blamed Congress and the judiciary. “If people don’t trust Congress and the judiciary then I think we are going to have some problems here,” he intoned, suggesting that Congress had been fully briefed and that the secret courts making determinations about surveillance were totally trustworthy. In an odd mixture of bellicosity and timidity, Obama said, “I don’t welcome leaks, because there’s a reason why these programs are classified. . . . I think it’s healthy for democracy. I think it’s a sign of maturity.” He added that he didn’t think Americans should buy into the “hype” about surveillance activities.22 He concluded, “Nobody is listening to your phone calls. . . . They are not looking at people’s names, and they’re not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism.” In other words they had access to names, calls, and content. But trust Big Brother.
That same day, Obama said that it wasn’t his fault that the NSA could spy on anything Americans did: Congress knew about it. “The programs that have been discussed over the last couple days in the press are secret in the sense that they’re 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,” Obama stated. “[I]t’s important to understand that your duly elected representatives have been consistently informed on exactly what we’re doing.”23 On August 9, Obama reiterated that Americans should have felt comfortable about NSA surveillance, since Congress knew about it.24
But Congress didn’t know about all of the Obama administration’s activities. Shortly after Greenwald’s revelations, the Obama administration granted a hasty briefing to Congress. Afterward, Representative Loretta Sanchez (D-CA) said, “I can’t speak to what we learned in there, and I don’t know if there are other leaks, if there’s more information somewhere, if somebody else is going to step up, but I will tell you that I believe it’s the tip of the iceberg. . . . I think it’s just broader than most people even realize, and I think that’s, in one way, what astounded most of us, too.” She wasn’t the only one admitting she hadn’t been made fully aware of what went on at the NSA. Senator Jon Tester (D-MT) said that he didn’t understand how the Snowden leak “compromises the security of this country whatsoever . . . quite frankly, it helps people like me become aware of a situation that I wasn’t aware of because I don’t sit on that Intelligence Committee.”25
Obama later claimed that no innocent American needed to worry about being spied on at all
. Appearing on Jay Leno’s Tonight show on NBC—a safe forum for the president, and the first place Obama took questions about the NSA scandal—Obama blathered, “We don’t have a domestic spying program. What we do have is some mechanisms that can track a phone number of an email address that is connected to a terrorist attack. . . . That information is useful.” Obama said that the program was “critical.”26
A few days later, Obama finally confronted the press on the NSA. He opened with a bizarre statement acknowledging the legitimacy of Americans’ worries, but simultaneously pooh-poohing them. He said it was “right to ask questions about surveillance . . . it’s not enough for me, as president, to have confidence in these programs.” As usual, he announced a review board, appointed by him, to review surveillance methods. He called those who “lawfully raised their voices on behalf of privacy and civil liberties . . . patriots who love our country and want it to live up to our highest ideals.” But then, swerving, he stated that there was truly no problem at all: “As I’ve said, this program is an important tool in our effort to disrupt terrorist plots. And it does not allow the government to listen to any phone calls without a warrant.” When questioned, Obama said, “the fact that I said that the programs are operating in a way that prevents abuse, that continues to be true, without the reforms. . . . I am comfortable that the program currently is not being abused.”27
Except, of course, that it was being abused. Repeatedly. In a wide variety of ways.
An internal audit of the NSA done in May 2012 showed 2,776 violations of rules and court orders for surveillance within the United States from April 2011 to March 2012. That number covered only one headquarters and a couple of local units. The actual number is far higher. Some incidents included thousands of files. Infractions largely centered around unauthorized surveillance of Americans or foreign citizens, and included significant legal violations. Furthermore, documents showed that the NSA told employees to use generic language and scrub details of violations before reporting to the Justice Department and the director of national intelligence. In one case, the Foreign Intelligence Surveillance Court wasn’t informed of a massive operation with a new collection method for months. When it found out, the court struck it down. The Obama administration covered up the ruling. Even though oversight staff increased dramatically under Obama, so did violations.28
