Official Secrets: Absolute Control

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Reason to be afraid #2

Control of information by the government-corporate complex is expanding.

The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it, or exactly how many agencies do the same work.

On July 19, 2010, the Washington Post published an investigative story by Dana Priest and William Arkin that revealed the expanding parameters of the security state. The information that the NSA and the Justice Department struggled for years to control was seeping out, despite the attacks on the NSA whistleblowers and the censorship and harassment of journalists.

The effort to conceal the government’s secret surveillance programs undoubtedly ramped up after Alberto Gonzales had a brush with perjury three years before the Priest/Arkin story appeared. Bush’s hapless attorney general nearly revealed in an open congressional hearing that there were more surveillance programs than the Senate knew about. Gonzales admitted to “other intelligence activities,” beyond the so-called Terrorist Surveillance Program, in a testy back and forth with Senator Charles Schumer.

The FBI raids on the homes of the three NSA whistleblowers and Diane Roark occurred two days after Gonzales referred to “other intelligence activities,” and four months later, on November 28, 2007, the FBI raided Thomas Drake’s house. Drake was the official who communicated with Siobhan Gorman at the Baltimore Sun.

The FBI incursion and search of the Drake house was the same drill as the attacks on the others: a dozen or so agents stormed across the lawn in the early morning. The raid lasted eight hours, and toward noon ABC News and Fox News drove slowly up the street outside and parked their large boom vans at the curb to film it. The episode was broadcast twice that night and the next morning. For weeks afterward, Drake had to explain to his friends and neighbors why the FBI treated him like a dangerous criminal, a spectacle they’d seen on television repeatedly the day it happened as well as the following day.

The FBI raids in 2007 were one of the first manifestations of the extreme steps the government would take to secure its secrets. After 9/11, the US Defense Department both expanded and tightened its security regime, but it took awhile to build it out and cover it up. According to investigative journalists Priest and Arkin, 1,271 government organizations and 1,931 private companies in about 10,000 locations across the United States worked on counterterrorism, homeland security, and intelligence.

Despite the campaign promises in 2008, the Obama administration did not arrest the trend toward more security-related secrecy. In 2011, Obama’s agencies made 92 million decisions to classify documents, a dramatic increase over years past. The following year, the Public Interest Declassification (PID) board wrote the president about the dangers of increasing secrecy:

At its most benign, secrecy impedes informed government decisions and an informed public; at worst, it enables corruption and malfeasance.

The extent of information collected and stored at public expense—but withheld from the public—is astonishing. The PID board’s 2012 report identified one government agency that was classifying one petabyte of new data every 18 months, the equivalent of 20 million filing cabinets filled with text, or 13.3 years of high-definition video. Moreover, the cost of storing and safeguarding all of this is high: roughly $11.3 billion in 2011, up from about $4.7 billion in 2001.

The knowledge we now have about the national security operations of the United States suggests that we’ve moved from an embryonic position— where data collection is voluminous and secret but disorganized—to a more sophisticated state, in which the government’s information about Americans is categorized, searchable, and centralized. The national security picture exposed by Edward Snowden in 2013 reveals a domestic surveillance system that is greatly advanced over the one Priest and Arkin described only three years before.

The government of the United States has two ways to withhold information from us, and they overlap for good measure. The first is to classify government documents as confidential, secret, or top secret for purposes of protecting national security. Classification withholds information from disclosure if requested under the Freedom of Information Act (FOIA). A second method is to invoke any of the nine exemptions or three exclusions of FOIA, one of which withholds classified information.

Shortly after he took office, Barack Obama committed his administration to openness and transparency. In choosing him to be president, Americans effectively showed their displeasure with the arrogance of the Bush/ Cheney administration, which concealed the machinations of governing behind a veil of secrecy and national security.

Obama was a Democrat, not a Republican. He was a progressive not a conservative, and he represented a younger generation than Bush and Cheney. He was to be different. He said as much in a statement released on his first day in office:

My administration is committed to creating an unprecedented level of openness in government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in government.

It was not to be.

An assessment by the Associated Press (AP) in 2010 showed Obama using FOIA exemptions to withhold information more than Bush did during his last year in office, even though the Obama administration had received fewer requests for documents. The AP’s review showed that after one year in office, the Obama administration had increased the use of virtually every FOIA exemption in order to withhold information.

The record on the classification and declassification of documents is no better. Obama’s own PID board wrote to him to say: “[P]resent practices for classification and declassification of national security information are outmoded, unsustainable, and keep too much information from the public.”

Thirty-three civil society organizations supported many of the board’s recommendations and also wrote the president to emphasize the importance of the issue:

[T]ransformation of the classification system has become a democratic and security imperative, and the critical moment in this effort has now come.”

That was April 23, 2013. The moment came and went.

Despite these consistent signs of growing secrecy in executive agencies and the regular warnings from sources familiar with government secrecy, the Snowden disclosures during the summer of 2013 occasioned an uproar among experts on national security law, cyber- intelligence, and document classification. People did not know what to think when the enormity of the revelations hit them. There is no precedent for what Snowden showed.

The disclosures came one after the other in digestible increments: metadata, PRISM, XKeyscore, illustrated with slides and official documents. Nothing was simply the opinion of the whistleblower. All of it was documented.

Thanks to Snowden, everyone who read or saw the news anywhere knew, for example:

1. The US national intelligence program includes sixteen spy agencies that directly employ 107,035 people.

2. For fiscal 2013, the classified “black budget” requested of Congress by the White House was $52.6 billion. The amount far exceeded what we previously thought to be true.

3. The CIA and NSA increasingly engage in massive cyber-operations to hack into foreign computer networks of both allies and enemies to steal data and sabotage infrastructure.

Perhaps most unsettling, the United States has spent more than $500 billion on intelligence since 9/11, an amount that exceeds equivalent Cold War spending levels.

In brief, the Snowden disclosures show that the Constitution and the government of the United States have parted ways. We are no longer a democratic nation of laws. That’s new in America. We’ve had our differences about various presidents, and most of us have little respect for the Congress, but in general, the judicial system enjoys a certain deference, and the country—including our government—as a whole is the subject of devotion. We still place our hands over our hearts and pledge allegiance to the flag—and to the republic for which it stands. The perception that the machinery of the state—including the executive, legislative, and judicial branches—does not respond to the will of the people, actively conceals its law breaking, and when exposed, deceives in a coordinated and deliberative fashion, is a first in living memory.

The Watergate scandal of the 1970s was also a constitutional crisis, but it was confined to the executive branch. It was also confined to one president, Richard Nixon. When he was gone, it was over. The same is true of the Iran-Contra scandal. Ronald Reagan broke the law and defied congressional intent, but the legislature reacted when the news broke, and the secret program stopped.

This situation is far worse than that, taking in as it does Presidents Bush and Obama—two very different presidents—their respective Justice Departments and intelligence agencies, the Foreign Intelligence Surveillance Act Court and its judges, and the House and Senate Intelligence Committees. When looked at that way, it’s difficult to name a strong actor with both the skills and the incentive to right the ship of state. No one in government is empowered to expose the totalitarian infrastructure at the heart of the democratic government of the USA.

The seepage of power from elected officials—such as the president—to the surveillance agencies appeared clearly in early September 2013, as Washington, DC, prepared for the October state visit of President Dilma Rousseff of Brazil. The White House planned a formal state dinner and a heavy schedule of meetings to showcase the close relationship between Brazil, the new powerhouse in the Americas, and the United States. The two governments also planned to consider an arrangement between Petrobras, Brazil’s state-run oil company, and the US government to allow US companies access to oil deposits trapped under a salt layer in the Atlantic waters off the Brazilian coast.

On September 8, 2013, the Brazilian newspaper O Globo reported that the NSA had penetrated the internal computer network at Petrobras, according to documents released by Edward Snowden. The news provoked a furious reaction in Brazil, as negotiators realized that US officials had outflanked them by peering into the Petrobras negotiating strategy. It added insult to injury because documents released by Snowden the week before showed that the NSA had hacked Rousseff’s personal email and that of her close aides. As the conflict broke into the open, the White House released a weak and meaningless statement that did not acknowledge the NSA’s invasion of the sovereignty of a friendly nation and did not commit to holding anyone accountable. Rousseff cancelled the state visit with an angry public protest, and in the United States, the press highlighted the fact that the Defense Department’s statement in August, denying that the NSA engaged in industrial espionage, was a lie.

The Snowden documents have badly eroded the legitimacy of the US government both domestically and internationally. No one in government, from the White House to the Congress, has been able to state anything close to a reasonable and truthful case for the clandestine actions of the NSA.

After the Guardian released the FISC order to Verizon Business Systems, President Obama told an interviewer that the court is transparent and that it is part of a system of checks and balances. The statement, aired on broadcast television, was preposterous. The court order is secret, and it is based on a secret interpretation of the law—an interpretation that one of the law’s principal author’s asserts is a gross violation of congressional intent. In this one exchange, Obama damaged the credibility all three branches of government. The executive branch, in the person of Obama, is either ignorant or lying. The judicial branch is secretly defying the legislature, and the legislature, which is responsible for oversight, is not paying attention.

Deputy Attorney General James Cole tried to help the NSA out of its credibility hole in the early summer. In testimony before the House Intelligence Committee, he described the elaborate monitoring and oversight that kept the NSA in check. He did admit, however, that: “Every now and then, there may be a mistake.”

Not long after Cole made this statement, we learned from the Washington Post:

The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008, according to an internal audit and other top-secret documents.

“Overstepped its legal authority” is WashPo-speak for “broke the law.”

And, of course, James Clapper discredited himself as well as the NSA when Snowden’s first disclosure exposed his lie of March 12, 2013, to an open hearing of the Senate Judiciary Committee. Senator Ron Wyden (D-OR) had asked him whether the NSA collects “any type of data at all on millions or hundreds of millions of Americans.” Clapper answered unequivocally: “No, sir.” Then he equivocated a bit and added: “Not wittingly.” Two months later, explaining his testimony, Clapper made his now famous statement: “I responded in what I thought was the most truthful or least untruthful manner, by saying ‘No.'” He then tried to explain his explanation by saying that he was confused about what Senator Wyden was asking. Subsequently, though, we discovered that Wyden’s office sent Clapper the question twenty-four hours in advance and therefore gave him ample time to clarify it, as well as to compose his answer. So Clapper not only lied in answer to the senator’s question in March, but he also lied in July when explaining his earlier lie.

By September, no one believed anything Clapper said anymore, but he nevertheless kept talking. One reporter opined that Clapper should be fired simply because every time he opened his mouth those to whom he spoke were left trying to parse what he meant by complex words like “yes” and “no.”

Perhaps the most disingenuous statements coming from government in the Snowden summer concern the value of a public debate about the desirability or limits of a surveillance state in America. First, President Obama told us all: “I welcome this debate. And I think it’s healthy for our democracy. I think it’s a sign of maturity because, probably five years ago, six years ago, we might not have been having this debate.”

Parsing that statement is useless, too. On its face it appears to be an allusion to Obama’s predecessor, who presumably would not have been so accepting of the potential debate. Or maybe it expresses the president’s attitude toward us: five years ago we were too immature to discuss our own safety constructively. In truth, however, Obama has not been open to a national discussion of US surveillance practices, either. Nor is his NSA director, Keith Alexander, who nonetheless told Senator Tom Udall with a straight face shortly after the first Snowden disclosures: “Now, what we need to do, I think, is to bring as many facts as we can out to the American people, so I agree with you, but I just want to make that clear.”

For his part, Senator Udall did not respond graciously:

It’s very, very difficult, I think, to have a transparent debate about secret programs approved by a secret court issuing secret court orders based on secret interpretations of the law.

The key word, obviously, is secret, and the context of Udall’s observation is judicial.

The Snowden disclosures eat away at the legitimacy of government not only because they expose the extent of domestic NSA operations, but because they show the way the court system, in particular, is corrupted and used to provide democratic cover for the surveillance state.

The Electronic Information Privacy Center (EPIC), like GAP a smallish nongovernmental organization in Washington, DC, filed suit in February 2010 under the Freedom of Information Act against the NSA. After media coverage of a developing partnership between Google and the NSA in response to a hacker incident apparently originating in China, EPIC sought: “all records concerning an agreement or similar basis for collaboration, final or draft, between the NSA and Google regarding cyber-security.”

It would be an uphill battle. Section 6 of the National Security Agency Act provides that the NSA enjoys exemptions from the obligation to disclose any function of the organization or “any information with respect to the activities thereof.” The NSA issued what’s called a Glomar response to the EPIC suit: the agency would neither confirm nor deny the existence of such records because to do so would compromise the security of the United States. EPIC appealed the decision in district court and lost. EPIC appealed that decision, too, and lost. The ruling of the US District Court of Appeals, issued May 12, 2012, is replete with legalisms and case law, but in the end, it is fairly simple. The NSA is exempt from disclosing to the American public any information about its organization, functions, or activities. The FOIA produced nothing from the agency—not even an email.

According to the appeals court judgment, the NSA must ensure that Google’s information systems are secure because US information systems depend on them. Therefore, nothing about the relationship between Google and the NSA could be revealed. One year later we all found that this argument was exactly backward. The NSA is not cooperating with Google to ensure that its systems are secure. The cooperation allows the NSA to install backdoors into the Google information system for purposes of dragnet surveillance, thus weakening the security of the entire program for everyone. The New York Times broke the story on September 5, 2013:

The National Security Agency is winning its long-running secret war on encryption, using super-computers, technical trickery, court orders, and behind-the-scenes persuasion to undermine the major tools protecting the privacy of everyday communications in the Internet age.

The EPIC court battle dragged on and the years passed, through motions for summary dismissal and appeals. Until Edward Snowden released NSA documents, we didn’t know about this struggle. Unwittingly, many of us have already been defendants in a contest before the FISA court, when the NSA sought the metadata of the customers of Verizon Business Systems. And although we did not know it, we lost.

Copyright (2014) by Beatrice Edwards. This excerpt is not to be reproduced without permission of the publisher, Berrett-Koehler.