“What are you afraid of Matt?”
That was the subject line of an email I received in April 2003, shortly after I wrote a column for the progressive website AlterNet warning about the federal government’s post–PATRIOT Act plans to increase warrantless surveillance on unsuspecting U.S. citizens.
“I wonder about you lefties who fear these upgraded measures of security,” a person identifying herself as Lynn McLaughlin wrote to me. “You must have something to hide, and since my husband works for the DIA, I’ll make sure he looks into what it may be.”
The DIA stands for the Defense Intelligence Agency, the central collector and interpreter of foreign military intelligence for the United States Armed Forces. According to the agency’s website FAQ at the time (though not now), the DIA was “prohibited by law and in no circumstance does it collect information on U.S. citizens or on information not related to military intelligence.”
Though exact figures for budget and payroll are classified “due to security considerations,” the DIA has an estimated 16,500 employees—just a bit more than the number of agents working for the FBI. One of those employees at the time, I was told by someone in the public relations department, was a computer systems analyst named Wayne McLaughlin.
They say the past is a different planet, but spring 2003 was a different universe. The Iraq War had begun. The congressional 9/11 Commission, after being slowed every step of the way by a defiant Bush administration, was only beginning to hold hearings 19 months after the attacks. And my main concern in alerting the feds about my correspondent was to make sure America’s defense wasn’t being needlessly jeopardized by a loose-cannon spouse. Surely my own government wouldn’t snoop petulantly—and illegally—into its citizens’ affairs?
Boy, was I stupid.
We now know that 2003 was the year the National Security Agency (NSA) opened up Room 641A at an AT&T building in San Francisco to tap into and analyze data flowing through the Internet backbone, even as then–Attorney General John Ashcroft was dismissing privacy objections to the PATRIOT Act as “baseless hysteria.”
And thanks to an avalanche of revelations this spring and summer triggered by leaks from former NSA contractor Edward Snowden, we know that the federal government has collected email and telephone data on “hundreds of millions of Americans” (according to McClatchy News Service), is “systematically searching—without warrants—through the contents of Americans’ communications” (New York Times), and is sharing that data with a “secretive U.S. Drug Enforcement Administration unit” that targets Americans then covers its investigatory tracks with prosecutors and judges (Reuters).
As the fog of post-9/11 executive-branch activity slowly begins to lift, one thing has already become clear: We are losing the bedrock American notion that citizens should be able to go about their daily affairs without being monitored by their government. The Fourth Amendment stipulations that people “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” have been shredded beyond recognition.
Walk around in lower Manhattan? The New York Police Department is watching you, on camera. Soon those cameras will be supplemented by a fleet of unmanned surveillance aircraft (see “Drones Away,” page 32). Turn on your cellphone? Government-run “Stingray” towers collect and transmit your geolocation data within an accuracy of six feet. Where those don’t yet exist the feds can always compel phone carriers to cough up all your relevant information.
Bank accounts. Medical information. Any sensitive data you willingly divulge to a third party. What Washington isn’t demanding overtly, it is rifling through covertly, without notification of those being targeted. Probable cause in 2013 America is a folk tradition, not a binding constitutional limitation on power.
Nobody wants to go through life paranoid, muttering about elaborate conspiracies while shaking a fist at the sun. (For a history of this tendency in U.S. politics, including the ways dissenters have been marginalized as being unhinged, see Jesse Walker’s “America the Paranoid,” page 52.) But the rude fact is that the executive branch is conducting all this contra-constitutional surveillance while constantly lying about it.
“There is no spying on Americans,” President Barack Obama lied to Jay Leno in August. “We don’t have a domestic spying program.” (For an examination of the president’s mendacity, see “Obama’s Flip-Flop on Spying,” page 10.) In March, when asked by Sen. Ron Wyden (D-Ore.) whether the NSA collects “any type of data at all on millions or hundreds of millions of Americans,” Director of National Intelligence James Clapper also lied: “No, sir.”
These bald-faced deceptions suggest a national security culture accustomed to doing and saying anything without fear of adverse consequences. A president who gained office by mobilizing the anti-war, anti-torture, pro–civil liberties vote is now operating secret prisons in Somalia, authorizing lethal drone strikes against Americans, and intervening personally to keep a Yemeni journalist in jail for doing his job—all without losing much support from his political base. Obama has locked in the George W. Bush/Dick Cheney policies he so skillfully campaigned against. (For more on these and other outrages, see our interview with Dirty Wars author Jeremy Scahill on page 42.)
The key behind all these programs is secrecy, invoked in the name of national security. We’re only beginning to understand the scope of NSA skullduggery because of a leaker who fled the country and is wanted back home under the Espionage Act, an odious Woodrow Wilson–era law that the Obama administration has used to unprecedented effect on journalists and leakers. The White House says with a straight face that the president “welcomes a debate about how best to simultaneously safeguard both our national security and the privacy of our citizens” even while he’s attempting to imprison those who started the conversation in the first place.
The secrecy has gotten so out of control that the very legal reasoning the government relies on in its snooping has been persistently and successfully shielded from public view, despite the best efforts of civil libertarians such as Sen. Wyden and Rep. Justin Amash (R-Mich.). To sum up: The executive branch is furiously trying to prevent citizens from knowing that they can be spied on, from knowing whether they are being spied on, and from knowing what legal theory the feds are using in the conduct of their spying. There can be no co-equal branches of government in this scenario. The legislature cannot be responsive to informed public opinion when the public is prevented from having one.
When the constitutional balance goes so far out of whack, democratic legitimacy is not far behind. As the press critic Jay Rosen put it in August, “Can there even be an informed public and consent-of-the-governed for decisions about electronic surveillance, or have we put those principles aside so that the state can have its freedom to maneuver?” The answer for more than a decade now has been grim.
That is finally beginning to change. In July Amash came within an eyelash of having the House of Representatives vote to defund the NSA program that Snowden exposed. That same month, the Pew Research Center found that, for the first time in its nine years of polling the question, more Americans feared intrusion on their civil liberties than feared a terrorist attack. The more Americans find out about their lawless executive branch, the more they rebel.
When government is lying to you about the constitutional rights it routinely violates, it’s time to change your habits of mind. No more blank checks. No more “trust, but verify.” No more hoping for the best. Be paranoid.