America's Surveillance Net
A reporter takes a mobile phone picture of National Security Agency Director US Army General Keith Alexander as he takes his seat to testify before a US House Permanent Select Committee on Intelligence hearing on recently disclosed NSA surveillance programs, at the US Capitol in Washington June 18, 2013. Reuters/Jonathan Ernst
A school of fish swims peacefully in the ocean. Out of sight, a net is spread beneath it. At the edges of the net is a circle of fishing boats. Suddenly, the fishermen yank up the edges of the net, and in an instant the calm, open ocean becomes a boiling caldron, an exitless, rapidly shrinking prison in which the fish thrash in vain for freedom and life.
Increasingly, the American people are like this school of fish in the moments before the net is pulled up. The net in question is of course the Internet and associated instruments of data collection, and the fishermen are corporations and the government. That is, to use the more common metaphor, we have come to live alongside the machinery of a turnkey tyranny. As we now know, thanks to the courageous whistleblower Edward Snowden, the National Security Agency has been secretly ordering Verizon to sweep up and hand over all the metadata from the phone calls of millions of its customers: phone numbers, duration of calls, routing information and sometimes the location of the callers. Thanks to Snowden, we also know that unknown volumes of like information are being extracted from Internet and computer companies, including Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple.
The first thing to note about these data is that a mere generation ago, they did not exist. They are a new power in our midst, flowing from new technology, waiting to be picked up; and power, as always, creates temptation, especially for the already powerful. Our cellphones track our whereabouts. Our communications pass through centralized servers and are saved and kept for a potential eternity in storage banks, from which they can be recovered and examined. Our purchases and contacts and illnesses and entertainments are tracked and agglomerated. If we are arrested, even our DNA can be taken and stored by the state. Today, alongside each one of us, there exists a second, electronic self, created in part by us, in part by others. This other self has become de facto public property, owned chiefly by immense data-crunching corporations, which use it for commercial purposes. Now government is reaching its hand into those corporations for its own purposes, creating a brand-new domain of the state-corporate complex.
Surveillance of people on this scale turns basic liberties—above all the Fourth Amendment, which protects citizens against unreasonable search and seizure—into a dead letter. Government officials, it is true, assure us that they will never pull the edges of the net tight. They tell us that although they could know everything about us, they won’t decide to. They’ll let the information sit unexamined in the electronic vaults. But history, whether of our country or others, teaches that only a fool would place faith in such assurances. What one president refrains from doing the next will do; what is left undone in peacetime is done when a crisis comes.
The executive branch offers a similar assurance about its claimed right to kill American and foreign citizens at its sole discretion. But to accept such assurances as the guarantee of basic liberties would be to throw away bedrock principles of our constitutional order. If there is any single political idea that deserves to be called quintessentially American, it is the principle that government power must be balanced and checked by other government power, which is why federal power is balanced by state power and is itself divided into three branches.
The officials—most notably President Obama—have assured us that this system is intact, that the surveillance programs are “under very strict supervision by all three branches of government,” in Obama’s words. But the briefest examination of the record rebuts the claim. In this matter, the interactions of the three branches are a cause not for reassurance but for deeper alarm. It’s not that the legislative and judicial branches are not involved; it’s that each, in its own way, has abandoned its appointed constitutional role.
The story arguably begins with George W. Bush’s end run around the legal system after the terrorist attacks of 2001, when, in complete disregard of the law, he initiated warrantless domestic surveillance by the NSA. So clearly illegal and extreme was this program that high-ranking officials of his administration, including James Comey, deputy attorney general, and Robert Mueller, director of the FBI, threatened to resign. Bush backed off some of the measures, and the confrontation did not become known until much later.
What happened then? Did Congress check this executive usurpation? Did it castigate Bush, forbid the crimes, hold his officials accountable? It did not. It adopted the worst features of the Bush program as law, in the Protect America Act of 2007 and the Foreign Intelligence Surveillance Amendments Act of 2008; it also immunized from legal repercussions corporations that had secretly knuckled under to Bush’s wrongdoing. Far from correcting the abuses, Congress institutionalized them. At the same time, it supported the executive branch’s cloak of secrecy over those abuses and the classification of the legal opinions of the FISA court, whose rulings have given legal protection to the new surveillance programs. The Obama administration’s legal opinions on the practices are also classified.
As for the judicial branch, it happens that in 1979, the Supreme Court ruled that the sort of metadata collected from Verizon is not covered by the Fourth Amendment. (In fairness, there is no sign that the Court anticipated or meant to approve the sort of indiscriminate dragnet of metadata now under way. Thus, a lawsuit recently brought by the ACLU to stop this has a chance of succeeding.) The FISA court almost never refuses government requests. James Bamford, an expert on NSA surveillance, has characterized this institution as “a super hush-hush surveillance court that is virtually impotent.”
Our system of checks and balances has gone into reverse. The three branches, far from checking one another’s power or protecting the rights of Americans, entered one after another into collusion to violate them, even to the extent of immunizing the wrongdoers. Balanced, checked power has become fused power—exactly what the founders of this country feared above all else. The political parties have been no more useful as checks than the branches of government; their leaderships stand together protecting the abuses, though individual senators, including Jeff Merkley and Ron Wyden, have proposed sensible reforms.
Finally, even elections have proven ineffective: the voters chose a president who taught constitutional law running on a platform of stopping civil liberties abuses; but he has become the author of new abuses. Even now, his soothing demeanor and reputation for liberalism (“Change we can believe in”) confuses and thwarts those who otherwise would be reacting with anger.
What should Americans do when all official channels are unresponsive or dysfunctional? Are we, as people used to say, in a revolutionary situation? Shall we man the barricades? The situation is a little more peculiar than that. There is a revolution afoot, but it is not one in the streets; it is one that is being carried out by the government against the fundamental law of the land. That this insurrection against the constitutional order by officials sworn to uphold it includes legal opinions and legislation only makes it the more radical and dangerous. In other words, the government is in stealthy insurrection against the letter and the spirit of the law.
What’s needed is counterrevolution—an American restoration, returning to and reaffirming the principles on which the Republic was founded. Edward Snowden, for one, knew what to do. He saw that when government as a whole goes rogue, the only force with a chance of bringing it back into line is the public. He has helped make this possible by letting the public know the abuses that are being carried out in its name. Civil disobedients are of two kinds: those inspired by universal principles, and those inspired by national traditions. Each has its strengths. Julian Assange of WikiLeaks is the first kind; Snowden, the second. Asked why he had done what he did, Snowden replied, “I am neither traitor nor hero. I am an American.” He based his actions on the finest traditions of this country, which its current leaders have abandoned but which, he hopes, the current generation of Americans still share. In the weeks and months ahead, we’ll find out whether he was right. Jonathan Schell