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The Gentleman Whistleblower

by JACK CLANCEY

Hong Kong.

“Gentlemen do not read each other’s mail,” Henry Stimson famously commented when in 1929, as the U.S. Secretary of State, he withdrew funding from the Black Chamber program that had been deciphering messages sent by foreign ambassadors. By the time he became the Secretary of War, during World War II, Stimson ceased to be a gentleman, as he strongly supported the interception and decryption of messages, from those considered enemies.

The revelations by Edward Snowden indicates that there are no gentlemen in the National Security Agency (“NSA”), as they are monitoring not only the communications of foreign nationals who might fall into the categories of terrorists or those supporting terrorists, but also gathering as much data as they can, from everywhere.

Within the U.S. the NSA has been collecting what has been labeled “metadata,” namely recording data about all telephone calls made within the U.S. including the telephone numbers of the calling and receiving phones, as well as the date and time the call was made, the duration of the call, and from where the call was made.

NSA is also collecting data from internet providers and main network systems around the world, as well as telephone calls made from outside the U.S. They are also taking photos of every envelope mailed in the U.S.

The fourth amendment of the U.S. Constitution offers protection of privacy for all citizens: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.” This amendment came into existence to stop the wide, unreasonable searches that were being conducted by government officials. The effect of the amendment was that there had to be a good basis for conducting a search and the person who wanted to conduct the search had to provide a good reason for the search and to clearly state what was being sought.

The NSA program is what is usually called a “fishing expedition,” in that they claim they need to gather as much information about communications in the event that the information might be helpful at some future time. The logic of the program is that sooner or later there a terrorist will be caught. Then NSA would be able to make a list of all those who had telephone and internet links with that terrorist. The program would extend to several “circles” of contacts, namely there would be a second list of all those who had telephone contacts with the names on the first list, and a third list of all those who had telephoned someone on the second list. These circles would easily involve thousands of innocent people and millions if someone on the first list telephoned to order a pizza. It would be very easy to make further circles of contacts.

Soon after the Snowden revelations, President Obama stated that Congress was very much aware of the various intelligence programs and supported them. We have seen this past week how inaccurate that presidential statement is.

The House of Representatives voted 217-205 to narrowly defeat an amendment intended to stop the wide collection of telephone records. However, there are indications there will be further attempts in the House of Representatives to stop or limit the NSA telephone record collection program, while some Senators are discussing possible legislation to bring the Patriot Act to an end. Even though she voted against the amendment, House minority leader Nancy Pelosi has stated her vote should not be construed as opposition to limits on surveillance and added that a bipartisan group of members of congress planned to send a letter to the president calling for limits on surveillance.

Democratic Senator Ron Wyden has stated the Obama administration has actively misled American citizens about domestic surveillance. He appears to have hinted that there are other extensive intelligence programs. Apparently if something is considered top secret, officials think they are duty bound to lie about a program’s existence, even when reporting to Congress. Senator Wyden is upset because the head of NSA had to admit that he gave false testimony when he testified to the Senate about the collection of phone records. Snowden has revealed some of the intelligence programs being conducted by NSA, but there are likely other such programs being done by other intelligence agencies.

How did such pervasive surveillance programs develop, especially after the reaction against domestic surveillance carried out by President Nixon that resulted in good legislation banning such surveillance? The answer is a master manipulation of fear, fueled by greed.

After the attacks on the World Trade Center in 2001, politicians whipped up a frenzy that the country had to develop as much intelligence as it could in order to prevent other terrorist attacks. Once the process of gathering intelligence began, bureaucrats interested in increasing their budgets and power, as well as private companies searching for ways to get their share of the ever increasing federal intelligence budget created a climate of fear and found new ways to gather intelligence.

The U.S. intelligence budget this year is $80 billion, of which $56 billion goes to private companies. That budget allows for high salaries and a lot of profit.

How effective are these expensive programs? Soon after Snowden started blowing his whistle, some government officials began making vague references about how these intelligence programs had prevented terrorism. Those statements lacked specifics. We do know that those high salaried intelligence folks had no clue about the bombs placed at the Boston marathon, nor about the Fort Hood massacre in which an army major killed 13 persons and wounded 30 others. The intelligence agents were not able to prevent many other mass shootings in the U.S.

But what about helping with the war on terrorism in other countries?

In December 2010, the Washington Post published a series of three in-depth articles by Dana Priest and William M. Arkin documenting how vast the intelligence community had become almost three years ago. Some of their findings are:

“1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.

An estimated 854,000 persons hold top security clearances.

Analysts publish 50,000 intelligence reports each year.”

In 2010 the U.S. intelligence budget was $75 billion.”

You would think with all that money and all those people, in addition to making nice profits, they would produce some good useful intelligence. That does not seem to be the case.

When Major General John M. Custer was the director of intelligence at U.S. Central Command, he told the director of the National Counterterrorism Center, “After 4 and ½ years this organization has never produced one shred of information that helped me prosecute three wars.”

One problem with the intelligence apparatus is that so much data is gathered and analyzed, it ceases to be useful. There is also a lot of duplication, a lack of sharing what does exist and a lot of waste. According to the Washington Post article, Major General John M. Custer, who was head of the Army intelligence school in 2010, asked, “Who has the mission of reducing redundancy … Who orchestrates what is produced so that everybody doesn’t produce the same thing?”

Secrecy is cited not only when dealing with Congress. According to the Washington Post, a military officer in one intelligence program had to sign a document which prohibited him from disclosing the existence of the program to his superior officer, who was a four-star general. A lot of ineffectual programs, as well as some which are unconstitutional can be hidden under the blanket of “secrecy.”

The other issue is “overload.” If 50,000 reports are produced each year, who reads them? Members of Congress are regularly requested to provide larger budgets for intelligence programs. Do they read any of the reports? How can they be sure those programs are effective and not illegal, if the reporting is deceptive or dishonest?

Snowden’s revelations have also lead to lawsuits being initiated. In one lawsuit, the American Civil Liberties union is asking the court to halt the telephone metadata program immediately, while seeking a preliminary injunction before the case is decided. The ACLU suit argues in part that the government’s clandestine data mining violates First Amendment rights of free speech and association – because it makes people concerned about freely expressing their opinions with others – and that it violates the Fourth Amendment’s protections against warrantless search and seizure. Recently a judge refused a motion by the government to set aside the action.

Another group, Electronic Frontier Foundation has filed a lawsuit, “to stop the spying and get the judiciary to rule that the call records program is illegal and unconstitutional.”

We know about the existence of these programs because of the revelations of “whistle blower” Snowden. Since the time of the Civil War, the U.S. Congress, as well as legislators in many states, have passed legislation to protect whistle blowers. Given the results thus far, it is time to consider legislation giving immunity to Edward Snowden so that he can return to the U.S. and assist Congress in finding out what other NSA programs are violating the constitutional rights of U.S. citizens and violating the privacy of people around the world, including Hong Kong.

Protection for Snowden might also encourage whistle blowers in other intelligence projects to speak out about abuses being carried out in the name of national security.

At a time when the U.S. government has to cut its budget for basic services for the American people, it would make sense for President Obama to call for drastic reductions in an intelligence budget that is not only too expensive, but is also wasteful, ineffective, and lacking in proper oversight. Unchallenged, those running these intelligence programs will want to gather all the data possible.

Although he has defended the NSA projects, President Obama has also encouraged debate. President Obama is very aware of the dangers of the intelligence programs initiated by the Patriot Act. In December 2005, when he was a senator, Obama, along with Senator John Kerry and Senator Chuck Hagel, (currently, Secretary of State and Secretary of Defence) co-signed a letter stating, “The conference report would allow the government to obtain library, medical, and gun records and other sensitive personal information, under Section 215 of the Patriot Act on a mere showing that those records are relevant to an authorized intelligence investigation … This would allow government fishing expeditions targeting innocent Americans.” The letter emphasized that a stricter standard “… will protect innocent Americans from unnecessary surveillance and ensure that government scrutiny is based on individual suspicion, a fundamental principle of our legal system.”

Obama, went from being a gentlemanly senator, defending citizen’s rights to privacy to a very ungentlemanly president defending a system conducting unreasonable surveillance, without any proper oversight.

Snowden realized that a gentleman should not spy on his fellow citizens and innocent people around the world. Hopefully, the strong response to Snowden’s revelations, will lead President Obama to reconsider his ungentlemanly attitude.

Earlier this year, President Obama stated, “We believe that all nations need to abide by international norms and affirm clear rules of the road as it relates to cybersecurity.” Snowden’s revelations indicate that no such norms exist. To protect the privacy of innocent individuals, organizations, and companies, the people of the world need to speak up and demand that their governments develop enforceable international norms that protect the privacy of each person.

Jack Clancey writes for the Sri Lanka Guardian. 

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