Some Reactions to Edward Snowden’s NSA Disclosures

Current news stories about the National Security Agency reminded me of a book I read in the early 1980s: James Bamford’s first book on the NSA, The Puzzle Palace: America’s Most Secret Agency (Houghton Mifflin, 1982). At that time, the NSA was not well-known, and, for me, the book revealed capabilities of the U.S. Government and a history about their use of which I had been unaware. My reaction at the time was that the NSA could become a very powerful tool for nefarious purposes if unethical, power-hungry people were to become in charge of the Executive Branch.

Recently, I read an interesting book, Subversives: The FBI’s War on Student Radicals, and Reagan’s Rise toPower (Farrar, Straus and Giroux, 2012), which focuses on the FBI’s relationship with Ronald Reagan while he was in the movie industry as an actor and union leader and then as governor of California unhappy with and fighting developments at the University of California at Berkeley. Amazingly, it took the author, Seth Rosenfeld, a former San Francisco newspaper reporter, decades, beginning in the early 1980’s with multiple lawsuits using the Freedom of Information Act, to pry from the FBI the documents on which the book is based, even though J. Edgar Hoover has been long gone. The book’s title, of course, is ambiguous. Who were the real subversives?

When it comes to the current NSA revelations, defenders and apologists for what the NSA does and the legal framework it operates under can point to Hoover and say what matters are the people, not the technology. After all, Hoover was able to trample on civil liberties and retain power by gathering compromising information on key political players without today’s super computers and near limitless digital storage capacity. In a sense, they have a point; there is no evidence of which I am aware that the NSA has been used to attack domestic political opponents.

It is, though, a limited point. The defenders and apologists miss some reasons for the current concerns, including the innate conservatism of bureaucracies and the temptations of the surveillance apparatus which these bureaucracies will mightily defend. Does anyone doubt that, upon a new Administration entering office, the intelligence community, including the NSA, would be endeavoring to convince their new political masters of the vital role that they play and that their way of doing things, at least for the most part, is essential? They probably make an effective case.

What then are the concerns?

First, it is not difficult to imagine an Administration, faced with some difficult problem, bending the law, maybe just a little, in order to achieve something they believe to be crucial. The problem is that once one goes down that path, it is perhaps easier to justify the next venture going into an area colored by a deeper shade of grey. And, since it is all done in secrecy, there is no need to worry about the media or public comment (as long as leaks do not occur).

Second, the notion of a FISA court approving programs in secret, creating a classified body of law, and doing this without the traditional adversarial procedures that are a key element of our judicial tradition is both laughable and disturbing. Even granting the need to preserve operational secrecy, the development of secret judge-made law is contrary to what most of us thought the American political system stood for.

Third, American history is replete with examples of civil liberties being eroded, if not just completely obliterated, during times of fear. Examples include the Palmer Raids (1919-1920) during the Red Scare of the early 20^th century, the internment of Japanese-Americans on the west coast during World War II, and the excesses of the McCarthy period. Past excesses have eventually been corrected after doing substantial damage to people’s lives, but they have gone quite far before being pulled back. Now we have the rise of the surveillance state, currently justified by the specter of terrorism since 2001.    

Fourth, the collection of information for one purpose easily leads to other uses. Someone will think that information collected for a particular purpose, e.g., protecting against terrorism threats, should be used for some other purpose. Pick your favorite cause: combatting drug trafficking, fighting corporate crime, gathering information on “subversives,” etc.

Finally, it is worrying, not reassuring, that some other governments, such as those of the UK and France, have active surveillance programs. While one might argue, as some have, that French protestations about the NSA are hypocritical, that observation is not dispositive of the concerns.

While intelligence agencies of allies may not always cooperate, since national interests diverge, it seems likely that they also share surveillance information with one another. In some cases, the particular shared information may not be legal according to domestic law for the agency receiving it to collect itself. However, it may not be illegal for the agency to receive it from another government and to use it and store it. In fact, Mr. Bamford in his 1982 book writes about the 1978 FISA law in this regard that the NSA had “skillfully excluded from the coverage of the FISA statute as well as the surveillance court all interceptions received from the British GCHQ or any other non-NSA source. Thus it is possible for GCHQ to monitor the necessary domestic or foreign circuits of interest and pass them on to NSA through the UKUSA Agreement. Once they were received, NSA could process the communications through its own computers and analysts, targeting and watch-listing Americans with impunity, since the action would not be covered under the FIS statute or any other law” (pp. 372-373). (I have not researched any changes to the law since this was written. It may not even be possible to ascertain what the law on this is now, given the secrecy surrounding judicial interpretations.)

At the end of his book, Subversives, Seth Rosenfeld writes:

“On the morning of May 2, 1972, J. Edgar Hoover was found dead on the floor of his bedroom. Helen Gandy, his longtime secretary, quickly executed one of his final orders: to destroy his personal office files.

“Thirty-five file cabinet drawers full of records were removed from his office and shredded. Gandy would later testify that none of them involved bureau business, that they were all private. But some documents survived, having been transferred to other files. They concerned illegal black bag jobs and other highly sensitive matters…”

Of course, the collection of massive computer records cannot be managed nor destroyed by one secretary, nor is it reliant on one official answerable only to himself. Recent polling results suggest that public attitudes concerning the perceived tradeoff between civil liberties and security may be changing. There is both domestic and international pressure for governments to let their publics know more about what they are doing. Preserving civil liberties requires constant vigilance; unchecked, there are great temptations for governments to erode these liberties, even if this does not begin with malicious intent.