Total Surveillance

by KATE EPSTEIN

Although Edward Snowden’s recent revelations about the breadth and scope of the surveillance-industrial complex didn’t add many facts to the public record of the ongoing post-9/11 security state saga, it certainly brought the issue to the forefront, forcing everyone to confront the stark realities of disappearing privacy and diminishing liberties. Many who defend the government (and corporate) spying argue that the right to privacy and anonymous free speech must be balanced against safety and security.

Many of these defenders are comfortable with government surveillance as long as the government doesn’t abuse its ability to spy and collect citizens’ data. If it will help catch terrorists before they attack, the argument goes, then it’s worth it, even if the idea of total surveillance is kind of creepy and we all wish this wasn’t the trade off we have to make. I agree with this commenter, responding to David Simon’s June 7th blog post in which the former Baltimore Sun journalist and Wire creator defended the NSA near-total surveillance, primarily because, Simon claims, there has been no evidence that the government has abused its surveillance power:

I’m not sure that actually having lived in a totalitarian society, like I have in communist Bulgaria, is a prerequisite to grasping that total surveillance, or the fear of it, kills free expression, and at some point even thinking. Self-censorship becomes way of life. And the power of the secret police that hears and knows everything and can pressure anyone into submission is huge. The Stasi strongmen could have only dreamt of the richness of detail Google and Facebook are providing to the NSA. Not to mention the automated analytical tools that are already available it [sic] are currently being developed. The possibilities of power misuse are just too big to ignore.

True enough in theory, and even scarier when we consider the overwhelming evidence that at least one goal the corporate-state surveillance apparatus is fulfilling is the political repression of activists on both the left and the right who advocate fundamental, democratic change to a badly broken system.

A series of legislative developments since 9/11 have expanded the executive branch’s surveillance and intelligence-gathering functions drastically, under the umbrella of the U.S. Intelligence Community, as it calls itself. These policy changes have loosened restrictions on intelligence gathering, expanded the definition of terrorism, inflated the role of corporations in catching so-called terrorists and protecting “critical infrastructure and key resources,” and created fusion centers (regional information sharing centers) under the direction of the Department of Homeland Security (DHS). The seventeen agencies that make up the Intelligence Community reported a combined budget of $80 billion in 2010, a figure three times higher than when it was previously disclosed twelve years earlier.

The FISA Court and the Façade of Oversight

Advocates of the surveillance program argue that government abuse of our data is prevented by its exposure to judicial oversight. The vehicle for such oversight is the Foreign Intelligence Surveillance Court, which was initially set up by the Foreign Intelligence Surveillance Act (FISA) of 1978. It was a liberal piece of legislation (introduced by Ted Kennedy and signed into law by Jimmy Carter), and a direct response to the Church Committee findings that Richard Nixon had been spying on political and activist groups in violation of the Constitution and the civil liberties it protects. The original act tightened restrictions on the gathering of the communications of U.S. citizens.

Since 1978, and especially since 2001, however, FISA has been amended many times, each time loosening the protections afforded by the original law, including the Lone Wolf Amendment of 2004 and the Protect America Act of 2007.

The FISA court is notoriously secret and its processes opaque (despite Obama’s recent assertion on Charlie Rose that FISA proceedings are transparent). Located within the Department of Justice building, the eleven judges hear evidence solely from the government lawyers at the Department of Justice about the requisite terrorist or enemy threat, and then the court either accepts or denies the request. The only information ever made public is how many requests were accepted and how many were denied at the end of each year. In the last three years alone, the FISA court rubber stamped a whopping 4,976 government requests, and denied none. (See this Bill Quigley column for more staggering statistics about the FISA court’s deference to the government. Of course, these figures might not mean anything at all, given that we know the Bush administration was wiretapping without warrants and without the knowledge of the FISA court in 2005—resulting in the resignation of one of the FISA court judges, apparently in protest of the secret surveillance.)

What very few people are acknowledging, amidst all the discussion about the Snowden leak and what it reveals, is that a very real purpose of the surveillance programs—and perhaps the entire war on terror—is to target and repress political dissent. “Terrorism” is the new “Communism,” and the war on terror and all its shiny new surveillance technology is the new Cold War and McCarthyism.

Public-Private Partnerships and the Targeting of Occupy Activists

Given the close partnership between government agencies and the private sector, it should come as no surprise that those in power were quick to spy on Occupy encampments and identify anti-Wall Street protestors as terrorist threats. There are three primary public-private intelligence partnerships at work on the federal level: The Domestic Security Alliance Council (DSAC), InfraGard, and the DHS Private Sector Information-Sharing Working Group. All three are vehicles for intelligence sharing between all levels of government and the private sector. Through these groups, often housed in fusion centers, financial institutions and other corporations warn DHS of terrorism threats.

These so-called threats are often peaceful dissenters and activists, although the member corporations and their communications with the government are kept secret. The ACLU has accused InfraGard of “turning private-sector corporations—some of which maybe in a position to observe the activities of millions of individual customers—into surrogate eyes and ears for the FBI.”

Even before many Occupy encampments were in place, banks and private companies in cities across America partnered with federal, state, and local law enforcement to infiltrate, collect intelligence about, and eventually stop the protests. The Partnership for Civil Justice Fund (PCJF), after retrieving FBI documents demonstrating the public and private surveillance of Occupy protestors, reported that such infiltration had been taking place in Virginia, Milwaukee, Memphis, Birmingham, Jackson, Denver, and San Francisco, to name only a few.

The Guardian’s Naomi Wolf, in her reporting on the unclassified documents showing the FBI surveillance of Occupiers, wrote: “Why the huge push for counterterrorism ‘fusion centers,’ the DHS militarizing of police departments, and so on? It was never really about ‘the terrorists.’ It was not even about civil unrest. It was always about this moment, when vast crimes might be uncovered by citizens—it was always, that is to say, meant to be about you.”

A groundbreaking new report from the Center for Media and Democracy and DBA Press painstakingly details the web of financial, corporate, municipal, state, and federal interests that collaborated to bring down Occupy Phoenix. You can read that report, and see the documents uncovered through their yearlong investigation, here.

Fracking, Tracking, and Psyops

Several recent exposés have revealed the extent to which corporations and the government have also inappropriately used surveillance against peaceful environmental activists in an attempt to quell dissent and intimidate.

Private security firm The Institute of Terrorism Research and Response (ITRR), for example, was including the activities of a peaceful anti-fracking group in Pennsylvania in the company’s intelligence bulletins, which were then distributed by the Pennsylvania Department of Homeland Security to local police chiefs, to state, federal, and private intelligence agencies, and to the security directors of the natural gas companies, as well as industry groups and PR firms.

News of this surveillance and intelligence sharing broke when James Powers, the director of the Pennsylvania Department of Homeland Security, mistakenly sent an email to a retired Air Force officer and anti-fracking activist he believed was sympathetic to the industry. Powers wrote: “We want to continue providing this support to the Marcellus Shale Formation natural gas stakeholders while not feeding those groups fomenting dissent against those same companies.” The surveillance had a chilling effect on the group, causing membership to dwindle when participants worried their phones had been tapped, that their emails were monitored, and that they were being followed on their routes to work as teachers, nurses, and doctors.

The fracking industry has a history of tracking, intimidating, and tricking skeptical landowners who threaten its profitability. At the “Media & Stakeholder Relations: Hydraulic Fracturing Initiative 2011” conference in Houston, Fracking company Range Resources’ public relations chief confirmed that the company had hired Army and Marine veterans with combat experience in psychological warfare to influence communities in which Range drills for gas, saying “We have several former PSYOPs [Psychological Operations] folks that work for us at Range because they’re very comfortable in dealing with localized issues and local governments. Really all they do is spend most of their time helping folks develop local ordinances and things like that. But very much having that understanding of PSYOPs in the Army and in the Middle East has applied very helpfully here for us in Pennsylvania.”

Because corporations conduct much of the government’s surveillance for them (by 2007, seventy percent of the US intelligence budget—or about $38 billion annually—was spent on private contractors), the potential for peaceful anti-corporate activism to be labeled terrorism is huge. And because corporations have state of the art technology and techniques, surveillance has become a sprawling industry of its own outside of government contracts. Overall annual spending on corporate security and intelligence is roughly $100 billion, which is double what it was a decade ago.

Hundreds of private spying organizations (or “para-CIAs”) have popped up in recent years to meet corporate demand, many of them staffed by former spies for agencies like the CIA and MI6. Other corporations, like Wal-Mart, have their own, in-house surveillance and security departments, staffed by former CIA, FBI, and State Department experts.

Domestic Terrorism

Which is not to say the government doesn’t take environmental activism as a serious terrorism threat in its own right. In 2005, John Lewis, an FBI deputy assistant director, said the animal rights and environmental movements were “one of the FBI’s highest domestic terrorism priorities.” The 2006 Animal Enterprise Terrorism Act (AETA) labels anyone a terrorist who causes a “loss of profits” to an animal enterprise. For the first time, in this law, the use of force or violence was removed from the list of criteria for terrorism.

In an FBI “domestic terrorism” training PowerPoint obtained by the ACLU, the trainees are urged to focus on groups such as “black separatists,” anarchists, animal rights activists, and environmentalists. And recently it broke that TransCanada has been training federal and state agents on laws that could be used to specifically target Keystone XL protesters. Specifically, the leaked PowerPoint slides advise officers to arrest protestors on “anti-terrorism statutes,” despite the campaign’s unwavering commitment to nonviolence since its inception almost a year ago.

Recent reports show that many potentially violent “terrorist” plots, including a NATO protest that arose out of Occupy Chicago, are actually concocted by undercover cops who then con other protesters into collaborating. So-called “terrorism-enhancement laws,” written and strengthened since 9/11, ratchet up sentences for criminal acts such as property destruction from months or years into decades or life, even when no people were killed or even injured. And the National Defense Authorization Act of 2013 (NDAA), signed by Obama on New Year’s Eve, allows the government to indefinitely detain, without trial, US citizens for suspicions of ties to terrorism.

The Road to Serfdom

You only need to open your eyes to see the countless ways in which the government and corporations are misusing and abusing surveillance technology. Combined with the ever-expanding definition of terrorism, an all-knowing, all-secret, all-powerful military-corporate state should scare all of us—not just those of us attempting to exercise our right to free speech and assembly on a regular basis. In the absence of good journalism, we need to connect the dots ourselves, from one scandal to the next. Surveillance is creepy and we like our privacy, but the conversation needs to be broader.

In 1952, in a famous Supreme Court case that arose when President Truman attempted to seize control of the steel industry to support the Korean War effort when workers threatened to continue striking, Justice Jackson delivered a cautionary tale about the dangers of suspending constitutionally guaranteed liberties, even in times of emergency, even when national security is at stake:

Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and, in 13 years, suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored.

Since 9/11, despite a major recession, we have continued to feed the military-industrial complex whatever it can gobble up, and the trend shows no signs of stopping. The question we are faced with is this: Will we take a stand against the expansion of executive power, the stripping of our civil liberties, and the blatant political repression of our post-9/11 world gone mad, or will we wait passively until, as Justice Jackson warned, it’s too late?

Kate Epstein is a lawyer and activist who manages the blog The Lone Pamphleteer. She can be reached at katepstein@gmail.com.

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