November 4, 2013
Peter W. Essig
It seems as though the American intelligence community, and the populace that lives under the aegis of its protection, both live in that most tenuous part of history-interesting times. The revelations of celebrated/infamous whistle-blowers/traitors Bradley Manning and Edward Snowden have exposed the inner work- ings of U.S. intelligence processing to the world at large. Bathed in metaphorical daylight, national secrets spilled into the hands of the masses and states alike. From the State Department’s take on the “Arab Spring” to the NSA’s use of PRISM to monitor domestic signals intelligence, we’ve be- come privy to it all. Whatever one’s feelings about the verisimilitude of their actions, Manning and especially Snowden sparked renewed debate on intelligence gathering. Of the two, Snowden’s ac- tions present the most salient topic of discussion to Americans. We find ourselves asking three poi- gnant questions: Why is the NSA spying on us? To what extent is the NSA delving into our private lives? Lastly: Should anyone monitor us at all, risking a fundamental transformation of the Unit- ed States into an Orwellian police state?
To me, all three questions are quickly an- swered, although not easily. As to the first ques- tion, the end of the Cold War does not mean that every other country has decided to stop intelli- gence gathering efforts against our country. Nor has the specter of terrorism- foreign or domestic- vanished like some evanescent vapor. In a country home to over 310 million people, all with differing ideologies, faculties, capabilities, and a willingness to employ the use of force to achieve their aims, simple prudence dictates that the agencies and institutions we charge with our collective safety spend some amount of resources to monitor do- mestic traffic. A fundamental truth, whether we like to acknowledge it or not, is that a geographical accident of birth does not make Americans angels. None of us should expect (including intelligence agencies) that just being born in the U.S. or even immigrating to the U.S. confers some innate, im- mutable prohibition against harming others to an individual. These reasons, then, explain the exis- tence of domestic surveillance.
Yet to what extent should agencies like the NSA conduct surveillance? How far into our private lives should they delve? To the majority of us, we would think as little as possible. I’m in- clined to agree. However, there are people dedicated to bringing strife to make a political point, people do exist that possess the capacity to harm others on a large scale, yet don’t possess the restraint, moral center, or intellect to refrain from inflicting damage for damage’s sake. That’s why we do, indeed, utilize a legal process in order to glean information domestically. The purpose of the Foreign Intelligence Surveillance (FISC) hinges upon a legal establishment of scrutiny for war- rant applications- either for surveillance of foreign or domestic interests on U.S. soil. This indicates that there is judicial oversight and accountability in the process, not a haphazard, willy-nilly tapping of every unsuspecting American’s telephone.
I’m not suggesting approval for a 1984-style system of governance. I am, however, suggesting that domestic surveillance serves a nec- essary function in the defense of our populace, and that even though a surveillance program may lend itself to abuses if allowed to operate unchecked, checks on Big Brother do exist. At the same time, it’s asinine to assume we all have the best interests of kin, country, and puppies held in our hearts. It’s also more than a bit hysterical to automati- cally conclude that prudent domestic intelligence gathering will necessarily lead to a draconian cur- tailment of civil liberties. The RCMP, GCHQ and MI-5, and DGSE all practice such programs, and no one has yet forced the Canadians, British, or French into dogmatic lockstep with governmental initiatives.
The root of American concern vis-à-vis domestic spying may have legitimate concerns in regard to institutional overstep. But the same can be said of any policing program. History has shown us that abuses of power have occurred in all levels of police power, from municipal to federal. However, no one in their right mind advocates for an abolition of our institutions of domestic guard- ianship. Instead, we try to make them work better. That is the goal we should pursue- not just for do- mestic spying, but for all of our programs.
Pete graduated from Howe Military School and in August of 2005 enlisted in the United States Army. He served two tours in Iraq in the Infantry, and upon separa- tion completed a two-year business degree before transferring to the University of Michigan.
Dating a Lebanese, or for that matter, a non-U.S. citizen, has stripped me of my fourth amendment right: the right to be protected against unwarranted searches and seizures.
I am American and fully in favor of protecting our national security, but when I talk to my boyfriend living in Lebanon, I would prefer the conversation to stay between him and me.
Under the 2008 Foreign Intelligence Surveillance Act, the National Security Agency (NSA) can tap my boyfriend’s conversations as long as he is “reasonably believed” to be living out- side the United States. This act that was intended to target foreign terrorists’ conversations has now been turned into a tool to authorize unwarranted tapping of individual Americans like myself.
Last month a 2011 ruling by the Foreign Intelligence Surveillance Agency (FISA), the se- cret court responsible for investigating issues of noncompliance, was declassified, showing that the NSA collected over 56,000 “wholly domestic” communications each year. Before getting caught by FISA, the NSA had been using an “upstream collection of electronic communications” that “did not satisfy certain statutory requirements in FISA and… did not satisfy Fourth Amendment require- ments” according to the 2011 secret court opinion.
These “upstream” collection methods permitted under the 2008 Surveillance Act al- lowed the NSA to deliberately collect and record foreigners’ conversations with Americans without a warrant. This meant that conversations of indi- vidual Americans with loved ones from different countries could be taped without a court first de- termining that the foreigner they were talking to was a terrorist or a spy.
The NSA broke the law and infringed on the Fourth Amendment right of every single one of those 56,000 Americans whose conversations were collected and recorded without warrant. Yes, the FISA court did prosecute the NSA in 2011, but despite the quadrupling of NSA’s oversight staff, the rate of infractions continued to increase in 2012.
The May 2012 audit, recently obtained by the Washington Post, counted 2,776 incidents in the preceding 12 months of unauthorized col- lection, storage, access to or distribution of legally protected communications. The most serious of incidents included a violation of a court order and unauthorized use of data about more than 3,000 American and green-card holders. This number was taken from NSA’s headquarters at Fort Meade and would have been higher if it had included other NSA operating units and regional centers.
With thousands of infractions every year, the five lawyers of the FISA court cannot keep up.
It’s Chief U.S. District Judge Reggie B. Walton said in a written statement to the Washington Post, “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any oth- er court when it comes to enforcing [government] compliance with its orders.” Judge Walton admits that the FISA must “rely upon the accuracy of the information that is provided to the Court,” which places a major constraint on its ability to act as a watchdog over NSA tapping activity.
President Obama and other govern- ment leaders continuously uphold the FISA court as protecting our rights and curbing superfluous NSA tapping despite the secret courts apparent struggle to do so. The NSA needs more oversight from Congress and judicial committees that have the staff and resources available to hold NSA ac- countable for illegal “metadata” searches when the FISA court falls short.
The NSA is imposing more, not fewer infractions on the rights of individual Americans. With over 2000 incidents reported in the 2012 au- dit, the court made up of five judges cannot thor- oughly protect the individual American from the unwarranted collection of internet and call data, even if this information is collected by accident. Recently, only pressure from outside civil liberty groups has been successful in forcing the govern- ment to release classified court cases that have be- gun to put this growing issue in the spotlight. If Obama is serious about reforming the surveillance system and regaining my confidence in the NSA, he needs to let civil libertarians into the dialogue.
I look forward to the day when our un- wanted third-wheel finds the right target to tap, but until then my boyfriend and I have agreed to keep our political discussions off the wires – especially when it comes to high alert words, like Hezbollah.
Courtney Green is a junior in the Ford School of Public Policy. She is interested in foreign policy speci cally in the Middle East. She is the co-president of Dorm Room Diplomacy as well as Students for Global Engagement and external communications chair for Salto Dance Company, a ballet/ lyrical dance group.