by Ben Shapiro
Overall, the NSA admitted, staffers could have illegally grabbed 56,000 emails of innocent Americans each year between 2008 and 2011 under the program the FISA court struck down. Each year, in total, the NSA collects 250 million emails, as well as millions of phone calls.29 In response, Obama remarked on CNN that the government had to “do a better job” of creating confidence in the NSA.30
Staffers didn’t just make mistakes—a few purposefully violated surveillance law. “Very rare instances of willful violations of the NSA’s authorities have been found,” the NSA admitted, without giving numbers. One NSA official used the government tools to track an ex-spouse. Senator Dianne Feinstein (D-CA) put the number of such violations at “roughly one case per year,” and said that the NSA took disciplinary action.31
And all of this represented just the “tip of a larger iceberg,” according to Senators Wyden and Udall. “In particular, we believe the public deserves to know more about the violations of the secret court orders that have authorized the bulk collection of Americans’ phone and email records under the USA PATRIOT Act. The public should also be told more about why the Foreign Intelligence Surveillance Court has said that the executive branch’s implementation of Section 702 of the Foreign Intelligence Surveillance Act has circumvented the spirit of the law, particularly since the executive branch has declined to address this concern,” Wyden and Udall wrote.32
What of the vaunted FISA court ensuring that Americans’ rights were not violated? U.S. District Judge Reggie B. Walton said that the courts are “forced to rely upon the accuracy of the information that is provided to the court. . . . [The court] does not have the capacity to investigate issues of noncompliance, and in that respect the [court] is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”33 Even when the government goes to the FISA courts, it doesn’t always tell the truth. In one ruling, Judge John Bates of the FISA court wrote, “The court is troubled that the government’s revelations regarding the NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.”34 Jameel Jaffer, deputy legal director of the American Civil Liberties Union, blasted the NSA over the revealed Bates opinion: “the NSA misrepresented its activities to the court just as it misrepresented them to Congress and the public, and they provide further evidence that current oversight mechanisms are far too feeble.”35
The NSA didn’t just keep the information it gathered in-house, either. It sent out information to other agencies that requested it, including the Drug Enforcement Administration—a law enforcement body designed solely to police domestic crime. According to the New York Times, “Smaller intelligence units within the Drug Enforcement Administration, the Secret Service, the Pentagon and the Department of Homeland Security have sometimes been given access to the security agency’s surveillance tools for particular cases, intelligence officials say.”36 Actually, the DEA had its own version of blanket surveillance: it paid AT&T to put DEA employees in supervisor positions to request information going all the way back to 1987. Four billion call records enter the database each and every day. Training slides on that program contain the logo of the White House Office of National Drug Control Policy.37
Good thing that President Obama pledged to create a panel of “outside experts” to get to the bottom of all of this NSA hubbub. Except that like all of Obama’s other scandal panels, this one was stacked with Obama insiders: Richard Clarke and Michael Morell. Clarke served as counterterrorism czar for President Bush, where he approved such surveillance; Morell was a career CIA officer. The “outside experts” were actually insiders par excellence. Cass Sunstein, Obama’s onetime regulatory czar, also joined the panel. The only true outsider on the panel was one Peter Swire of the Georgia Institute of Technology.38
THE TRAITOR
The Obama administration’s response to the NSA revelations wasn’t to come clean, or to fire those responsible for the massive overreach that allowed Americans’ Gchats to be accessed by any one of the thousands of federal employees with clearance. It was to attack Edward Snowden. The administration immediately moved to try Snowden under the Espionage Act—even though the administration itself routinely leaked national security information to the press, and engaged in illegal espionage in the Middle East. Glenn Greenwald said, “I think it’s very surprising to accuse somebody of espionage who hasn’t worked for a foreign government, who didn’t covertly pass information to an adversary-enemy of the United States, who didn’t sell any top secret information, who simply went to newspapers, asked newspapers to very carefully vet the information to make sure that the only thing being published are things that inform his fellow citizens but doesn’t harm national security. That is not espionage in any real sense of the word.”39
Meanwhile, the Justice Department revoked Snowden’s passport, with Secretary of State John Kerry explaining, “What I see is an individual who threatened his country and put Americans at risk through the acts that he took. People may die as a consequence of what this man did. It is possible the United States will be attacked because terrorists may now know how to protect themselves in some way or another that they didn’t know before.” He also assured the public that the government didn’t “look at people’s emails and we don’t go inside and just do a random scoop like that.”40 Kerry called Snowden’s leaks “despicable and beyond description.”41
The NSA was a bipartisan scandal, so it made sense that the attacks on Snowden came from both sides of the political aisle. House Speaker John Boehner (R-OH) said Snowden was a “traitor,” and explained, “The disclosure of this information puts Americans at risk. It shows our adversaries what our capabilities are. And it’s a giant violation of the law.”42 Former vice president Dick Cheney also called Snowden a “traitor” who had done “enormous damage” to American counterterrorism efforts.43 Senator Feinstein added that she thought Snowden had committed “an act of treason.”44
Finally, Obama sounded off on Snowden directly. At the same August 9 press conference in which Obama called those concerned about civil liberties violations “patriots,” he declined to label Snowden a patriot. “I don’t think Mr. Snowden was a patriot,” Obama stated. “My preference—and I think the American people’s preference—would have been for a lawful, orderly examination of these laws; a thoughtful, fact-based debate that would then lead us to a better place.” Presumably, a debate behind closed doors, without the involvement of the public.45
The media jumped on the “Snowden: Traitor or Hero?” bandwagon, turning the entire NSA fiasco into a referendum on whether Snowden was a civil libertarian or a traitor looking to harm America’s national security. David Brooks of the New York Times wrote, “He betrayed the Constitution. The founders did not create the United States so that some solitary 29-year-old could make unilateral decisions about what should be exposed.” On the other side of the political aisle, Jeffrey Toobin of CNN said that Snowden “wasn’t blowing the whistle on anything illegal; he was exposing something that failed to meet his own standards of propriety.”46
The attempt to shift the narrative from NSA malfeasance to Snowden didn’t stop there. Politicians began targeting Greenwald, the reporter who worked with Snowden on his leaks. Representative Peter King (R-NY) suggested that journalists who printed the leaks should be prosecuted. “[I]f they willingly knew that this was classified information,” he said, “I think action should be taken, especially on something of this magnitude.” He said there was “an obligation both moral but also legal, I believe, against a reporter disclosing something that would so severely compromise national security.”47 Representative Mike Rogers (R-MI) added that Greenwald “doesn’t have a clue” about how the NSA actually worked.48
On August 18, 2013, David Miranda, Greenwald’s gay partner, found himself detained at Heathrow Airport for nine hours. The authorities questioned him
under the Terrorism Act of 2000, which grants officers the right to stop, search, and detain people for questioning. Officers grabbed Miranda’s cell phone, laptop, camera, memory stick, and DVDs. “This is a profound attack on press freedoms and the news gathering process,” Greenwald lamented. “To detain my partner for a full nine hours while denying him a lawyer, and then seize large amounts of his possessions, is clearly intended to send a message of intimidation to those of us who have been reporting on the NSA and GCHQ [Britain’s Government Communications Headquarters]. The actions of the UK pose a serious threat to journalists everywhere.”49 The White House admitted that it knew in advance that Miranda would be stopped, and that it received access to information seized from Miranda—but added that it didn’t play a role in that detention.50
These were the supposed villains in this morality play created by the White House: Snowden, Greenwald, Miranda.
But Snowden’s status didn’t really matter, of course. Neither did Greenwald’s journalistic activities. Who cared what Snowden’s motivation was, or why Greenwald had reported on Snowden’s leaks? But the hubbub over Snowden’s character obscured two key questions. First, if Snowden was such a traitor, wouldn’t it suggest that the government’s unfettered access to information created the significant risk of nefarious people gaining access to Americans’ private lives? After all, this twenty-nine-year-old “traitor” had taken laptops full of information straight from the NSA. And as of October 2012, approximately 1.7 million Americans either had top-secret clearance or approval for it, including nearly 800,000 who didn’t even work for the government.51 There are virtually no checks on people who want to steal information. According to the Federal Times, “Nearly half the agencies handling classified data on their networks lack capabilities to thwart damaging information leaks by disgruntled insiders.”52 Who are the people staffing those agencies? According to a document released by Snowden, a full one in five people who applied to the CIA and were red-flagged had ties to Hamas, Hezbollah, or al-Qaeda.53
Even more important, there was a second question: were intrusions by the federal government truly justified in order to achieve security?
“IT’S CALLED PROTECTING AMERICA”
While members of the federal government had no answer to the first question, they repeatedly answered the second question in the affirmative. Rogers said, “Within the last few years, this program was used to stop a terrorist attack in the United States. We know that. It’s important. It fills in a little seam that we have, and it’s used to make sure that there’s not an international nexus to any terrorism event that they may believe is ongoing in the United States.” White House deputy press secretary Josh Earnest agreed, calling the NSA surveillance a “critical tool” for protecting Americans.54 Senator Saxby Chambliss (R-GA) added, “To my knowledge, there has not been any citizen who has registered a complaint. It has proved meritorious because we have collected significant information on bad guys, but only on bad guys, over the years.” And Feinstein said, “It’s called protecting America.”55
Senator Lindsey Graham (R-SC) actually celebrated the government sifting his phone calls. “I’m a Verizon customer,” Graham said. “I don’t mind Verizon turning over records to the government if the government is going to make sure that they try to match up a known terrorist phone with somebody in the United States. I don’t think you’re talking to the terrorists. I know you’re not. I know I’m not. So we don’t have anything to worry about.”56 A few days later, he went even further: “If I thought censoring the mail was necessary, I would suggest it, but I don’t think it is.”57
But was it? Not one politician provided any evidence that the government’s antiterror efforts required the vast scope of surveillance provided for by the NSA programs. Did millions of American emails and calls need to be stored? Or could a more targeted approach have worked?
At 2:49 p.m. EDT on April 15, 2013, Patriots’ Day, two pressure-cooker bombs blew up near the finish line of the Boston Marathon. Three were killed, and 264 others were injured. Three days later, law enforcement centered on the culprits: Tamerlan and Dzhokhar Tsarnaev, two brothers from Chechnya involved deeply in Islamism. The federal government’s red flags should have been raised full-mast for months before the attacks. In March 2011, the Russians intercepted a phone call between Tamerlan and his mother involving jihadism. The Russians warned the FBI; the FBI went to check on Tsarnaev. Tamerlan and his mother ended up in the American TIDE database, which contained five hundred thousand names at the time. In September 2011, the Russians sent that information to the CIA. The CIA did nothing. The feds closed the case, and didn’t consider reopening it even after the Russians warned the feds again that Tamerlan Tsarnaev had traveled to Dagestan, an Islamist training center.58 “The Russian side warned the American side about the Tsarnaev brothers,” said Valentina Matvienko, Speaker of the Russian Senate, “but this information was not taken seriously, which is what led to that tragedy.”59
The FBI claimed that they simply didn’t have enough information, according to the testimony of Director Robert Mueller: “I do believe that when we got the lead on Tamerlan from the Russians, that the agent did an excellent job in investigating, utilizing the tools that are available to him in that kind of investigation. . . . At that point in time, I do not know that there was much else that could be done within the statutes, within the Constitution, to further investigate him.”60
But there was more that the FBI could have done to monitor the Tsarnaevs. That, of course, was the entire point of the NSA surveillance program. But the Tsarnaevs slipped through the cracks nonetheless. Who, exactly, was the NSA monitoring if not the Tsarnaevs?
CLOSING ARGUMENT
Americans’ civil rights—our most treasured rights to privacy—were violated on a blanket basis by both the Bush administration and the Obama administration. The difference between the two administrations, however, lay in both the extent of the surveillance activities and in the justification for them. Bush’s were more limited and more justified; President Obama has yet to lay out clear justification for blanket surveillance of millions of American citizens.
On June 11, 2013, the American Civil Liberties Union filed a lawsuit against the NSA’s phone surveillance program, claiming violation of constitutional rights. Brett Max Kaufman, a legal fellow at the ACLU, pointed out the risks to controversial organizations of having the government monitor broad swaths of private information: “The nature of the ACLU’s work—in areas like access to reproductive services, racial discrimination, the rights of immigrants, national security, and more—means that many of the people who call the ACLU wish to keep their contact with the organization confidential. Yet if the government is collecting a vast trove of ACLU phone records—and it has reportedly been doing so for as long as seven years—many people may reasonably think twice before communicating with us.”
On September 4, the National Rifle Association joined the ACLU’s lawsuit, explaining that the government’s collection of information under the surveillance programs effectively created a national gun registry in violation of law. “It would be absurd to think that the Congress would adopt and maintain a web of statutes intended to protect against the creation of a national gun registry, while simultaneously authorizing the FBI and the NSA to gather records that could effectively create just such a registry,” the NSA explained.61
This is not paranoia. It is the reality of dealing with a massive government staffed by millions of people who may or may not be trustworthy. If Americans have learned nothing else from the IRS scandals, the Obama targeting of whistle-blowers in Benghazi and Fast and Furious, and the unending leaks from the Obama administration, they should know by now that the government does the right thing, up until the point it doesn’t. When the IRS targeted Obama’s political opponents, it did so on the basis of tax information. When the Obama Justice Department targeted Obama’s journalistic opponents, it did so using phone records. What could a politically motivated government do
with access to emails, phone records, and virtually all other information about Americans’ private lives?
Were a private entity to gather all of the information gathered by the NSA, it would be prosecuted and sued out of existence. But the federal government has done so in the name of national security—even though Obama himself has claimed that the threat of terrorism has decreased markedly, and that effectively, the war on terror is over. Not only that—the federal government is lying about it. When Director of National Intelligence Clapper told Congress that the NSA had not collected data on millions of Americans, he lied. Even Clapper admitted privately to Congress that his statements were “clearly erroneous.” But he refused to correct the record publicly.62
On June 7, 2013, President Obama explained that he, too, worried about privacy. He said, “I will leave this office at some point, sometime in the last—next three and a half years, and after that, I will be a private citizen. And I suspect that, you know, on—on a list of people who might be targeted, you know, so that somebody could read their emails or—or listen to their phone calls, I’d probably be pretty high on that list. So it’s not as if I don’t have a personal interest in making sure my privacy is protected.”63
