With the ongoing battle over the NSA’s domestic spying program, we should be informed on exactly how the the agency and its cohorts have been able to carry out such blatant violations of Constitutional rights for over a decade.
They achieve this by creating their own reality, using special definitions of words, then presenting this to judges in secret courts and using Executive power to prevent inquiry and oversight.
A November 2014 paper written by Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society, describes the doublespeak and subversion of law that they have honed since 9/11.
We now have “…an Intelligence Community which has all kinds of tricks to violate the law, contravene public expectations, hide from public scrutiny, and when it gets caught, kick up so much legal dust that no one gets in any kind of serious trouble.”
Legalism—the idea that following the rules means the activity is ethically just—is no longer enough for the surveillance state. It is now used as a smokescreen. Documents show that NSA willfully created policy to subvert the law, stating it “…could circumvent federal statutes and the Constitution so long as there was some visceral connection to looking for terrorists.”
Interpretations of law by hand-picked attorneys serve as the backbone of their justification. Agency heads need only get a lawyer’s rubber stamp to enact surveillance programs.
This “empowerment of lawyers” has been used to give immunity to telecommunication companies for spying on you, to compel underlings to do the agency’s bidding, for public relations stunts, and to marginalize Congress. According to Granick’s report,
“The decisions of lawyers inside the surveillance community have allowed America’s spies to secretly expand their power as they develop classified capabilities and practices that the public and Congress haven’t yet become aware of, and have not even begun to regulate.”
But calling this “empowerment” is misleading. We see lawyers who object to policies that may harm civil liberties bypassed in favor of handpicked counsel who give their bosses the answers they want. Lawyers are ratifying surveillance decisions policy makers have already made.”
The level of doublespeak employed for these aims is incredible and frightening. One cannot help but think of George Orwell’s 1984.
The NSA has developed its own special definitions of commonly used words, so the people who engage with the legislative and judicial branches and the public can believe they are telling the truth, even when it is a lie to everyone else.
Former Director of National Intelligence, James Clapper, provided an example when he testified that the NSA did not collect any information at all on millions of Americans, when in fact the agency did do this very thing. Clapper used his own definition of the word “collect.” Whereas we would think that gathering data on people is “collecting,” Clapper believes that “collecting” refers to actually opening the book and reading the data.
Clapper said in an NBC interview, “There are honest differences on the semantics of what — when someone says ‘collection’ to me, that has a specific meaning, which may have a different meaning to him.”
Other words that have different meanings within the NSA are “target,” “relevant,” and “incidental.”
“The agency is warping language in order to make rules mean something very different from what ordinary people would take them to mean. Do these word games demonstrate respect for rules, or subversion of them? I think it’s subversion,” said Grankick.
NSA’s special definition of “relevance” allowed, for first time in American history, a secret court (FISA) to rule in 2004 that existing Congressional laws authorized domestic bulk data collection. The controversial opinion rubber-stamped a key part of the STELLARWIND data mining program, which collects Americans’ email, phone, financial and internet activity.
The judge needed a certification of “relevance” from NSA. The agency used a definition of “relevance” that contradicted hundreds of years of prior understanding, for the first time applying it to mass data collection instead of targeted evidence collecting.
With this in hand, “…the authorizing judge has almost no opportunity for pre- or post-collection oversight. The court is not allowed to investigate the basis for the certification. Nor does the statute authorize the judge to put any controls on the government’s subsequent use of bulk collected data.”
This 2004 secret court ruling was used as the basis for the mass phone data collection that is currently being contested. It was ruled illegal by the 2nd U.S. Circuit Court of Appeals and specifically terminated by Congress, but a FISA court judge went ahead and rubber-stamped the program anyway.
The Intelligence Community was never very worried. In 2013 Deputy Attorny General James Cole made it clear how little checks and balances mattered to them, saying,”[I]t’s going to depend on how the court interprets any number of the provisions that are in [the legislation].”
And sure enough, the secret FISA court interpreted in their favor.
The other important facet to NSA’s lawlessness is the “Commander-in-Chief override,” a theory pushed by the executive branch since 9/11 that maintains “…it is unconstitutional for congressional action to limit the president’s exercise of his “war powers” under the Commander-in Chief clause of Article II.”
While Article II power has historically been used where executive power is exclusive (where Congress cannot regulate), it is now being used where Congress can regulate. This authoritarian power grab has been extensively used for warrantless wiretapping.
“Looming over legislative efforts to rein in surveillance practices is the danger—or implicit threat—that Congress will be instigating interbranch power struggle against a president that will assert his override, and the fight could tear the government apart,” Granick explains.
Between the NSA’s special lexicon used to hide and subvert, the unprecedented Executive power grab, and a virtually limitless supply of funding, the surveillance state has become the biggest threat to rights and privacy we’ve ever known.
“The NSA has built a network of compromised Internet routers it uses for surveillance and to install spyware. It is capable of hijacking user connections to Facebook in order to install malware on a target’s computer. It forced Microsoft and Cisco to build surveillance back doors into their products. It has automated control over swarms of computers—botnets—capable of attacks that bring down websites and computer systems. US intelligence agencies have successfully undermined various encryption protocols and implementations. The Intelligence Community purchases zero-day exploits thereby helping drive the market for malware. All of these techniques contribute to a network infrastructure that is insecure, something that benefits not only America’s spies, but other governments, thieves, and terrorists,” said the Director of Civil Liberties at the Stanford Center for Internet and Society.
The next few months will be an important test of the surveillance state. Congress acted to end NSA’s phone spying program, and a high-level public court has deemed it illegal. The secret FISA court said the public court’s opinion doesn’t matter and phone collection can continue, at least for the six-month grace period in the 2015 USA Freedom Act. If the executive branch continues the program, it will set up a massive showdown.
We can only hope that the right people recognize that the NSA is operating within its own reality, and that it should not be allowed to destroy ours.