John J. Clancey
As Edward Snowden has continued to slowly release more information about the widespread intelligence gathering techniques of the National Security Agency (NSA), there have been more calls for him to be granted an amnesty and further calls for placing limits on intelligence gathering by the NSA and other intelligence agencies.
Der Spiegel has reported that NSA has a hacker unit, in the fine tradition of intelligence operatives labelled the Tailored Access Operations (TAO), which has developed techniques to exploit the weaknesses and hardware of computers. According to Der Speigel, TAO has developed computer-monitor cables to record what appears on the screen, USB sticks with radio transmitters and fake base stations to obtain mobile phone signals, as well as attaching espionage software to computers that were intercepted on their way from the factory to customers! Another NSA unit is trying to build a "quantum computer" to break any type of encryption used by banks, businesses, hospitals, lawyers, and governments all over the world to protect their records.
An online petition, initiated at the start of 2014 by four academics from the University of Amsterdam, now supported by at least 250 academics from major universities, has called for an end to "blanket mass surveillance" by intelligence agencies. The petition notes the mass surveillance by the NSA violates "a fundamental right" protected by international treaties, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The petition points out: "Without privacy people cannot freely express their opinions or seek and receive information. Moreover, mass surveillance turns the presumption of innocence into a presumption of guilt... secret and unfettered surveillance practices violate fundamental rights and the rule of law, and undermine democracy." The Petition calls for action by governments: "Intelligence agencies must be subjected to transparency and accountability. People must be free from blanket mass surveillance conducted by intelligence agencies from their own or foreign countries."
In short, NSA has completely ignored the interests of all and appears to be attempting to gather as much information as is available about everyone and everything. Shortly before Snowden began his revelations, President Obama had been explaining that the U.S. Government would not allow Chinese computer companies access to the U.S. market because of concerns they would gather information for the Chinese Government. Now there is the perception that U.S. computer related companies are either openly cooperating with the NSA or passively accepting the NSA gaining "back door" access to information in their data bases. This could easily lead to loss of business for U.S. companies in major markets, because governments have the same concerns that President Obama had.
There have been further calls for an amnesty for Snowden, the latest coming in recent editorials by the New York Times and the Guardian, as well as from the executive director of Human Rights Watch, Kenneth Roth, who stated, "Snowden exposed major misconduct. Others filing official complaints were ignored or persecuted. He should be pardoned." Recently an editorial in the South China Morning Post stated it would "welcome a presidential pardon" for Snowden. However President Obama has until now adamantly insisted that Snowden return to face trial.
On the other hand, there has been little discussion about whether the NSA employees, including its Director, and President Obama should stand trial for what many consider the illegal and likely unconstitutional activities carried out by the NSA.
After the wide-spread intelligence gathering under the administration of President George W. Bush, Congress passed the Foreign Intelligence Surveillance Act specifically to prevent intelligence overreach. Although at the time there was strong support for the Patriot Act, it is doubtful that most members of Congress intended such extensive surveillance. A Republican Representative, F. James Sensenbrenner Jr., who was one of the drafters of the Patriot Act, has stated, "Congress intended to allow the intelligence communities to access targeted information for specific investigations. How can every call that every American makes or receives be relevant to a specific investigationñ" The obvious answer is that it is not relevant. Even if a majority of the members of Congress are so fearful that they would support such intrusive intelligence, such legislation would be unconstitutional.
The issue of constitutionality is now before the Courts. In late December 2013, Federal Judge William Pauley in New York, seemingly without much concern for constitutional restrictions, dismissed an application by the American Civil Liberties Union and commented that the NSA program on phone data was a vital tool to help prevent an Al Qaeda terror attack on American soil. Another Federal judge took the opposite view; Judge Leon stated, "I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen." Both judgments will be appealed and it is likely the U.S. Supreme Court will make the final decision on the constitutionality of the NSA programs.
Laura Donohue, a law professor and the director of Georgetown's Center on National Security and the Law, has noted, "As a constitutional matter, the Supreme Court has long held that, where an individual has a reasonable expectation of privacy, search and seizure may occur only once the government has obtained a warrant, supported by probable cause and issued by a judge. The warrant must specify the places to be searched and items to be seized."
In a 2013 Supreme Court judgment related to a 28 day GPS surveillance, Justice Samuel Alito commented that in most criminal investigations, long-term monitoring "impinges on expectations of privacy." In that same judgment, Justice Sonia Sotomayor observed that following a person's movements, "reflects a wealth of detail about her familial, political, professional, religious, and sexual associations."
His track record indicates that President Obama will continue to fight both in the courts and by issuing executive orders to protect the excessive power of the security bureaucrats and powerful elite rather than the constitutional rights of the country's citizens.
Glenn Greenwald, one of the two journalists to whom Snowden revealed the NSA practices, wrote a book entitled, WithLiberty and Justice for Some, published in 2011, documenting how the political and economic elites have benefitted from the double standard of justice that now exists in the U.S. Greenwald worked as a constitutional and civil rights attorney for 10 years before turning to journalism.
Greenwald describes the process of how the pardon of Richard Nixon by President Ford, "justified in 1974 as a onetime exception, necessitated by unique circumstances – lay the foundation for elite immunity: a law-breaking license that spread throughout the political class and then to its partners in the private sector."
Greenwald recounts how numerous officials appointed by President Reagan were indicted by an independent prosecutor, Lawrence Walsh. He then describes how President H.W. Bush not only granted pardons to National Security Adviser Robert McFarlane and Assistant Secretary of State Elliot Abrams, both of whom had pleaded guilty to misdemeanors, but also to four others who had been convicted, as well as to Defense Secretary Casper Weinberger prior to his trial. Walsh stated, "Weinberger's early and deliberate decision to conceal and withhold extensive contemporaneous notes of the Iran-contra matter radically altered the official investigations and possible forestalled timely impeachment proceedings against President Reagan and other officials." Walsh, a lifelong Republican, later commented, "President Bush's pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office - deliberately abusing the public trust without consequence." (my emphasis added)
Greenwald then describes how in 2007, "a unanimous federal jury found Vice President Dick Cheney's chief of staff, Lewis "Scooter" Libby guilty of four of the five felonies for which he had been indicted." Libby was sentenced to a term of 30 months in prison. Greenwald at that time wrote: "Having a nation watch this powerful Bush official be declared a criminal – despite having been defended by the best legal team money can buy – resoundingly reaffirms the principle that our highest political officials can and must be held accountable when they break the law." Greenwald's optimistic joy did not last long: within one month President Bush announced that Libby's sentence had been commuted and he would not serve any time in jail. Greenwald commented that as with Bush's father's pardon of criminal officials who could have implicated him in crimes, "so, too, did Bush's commutation of Libby's sentence provide presidential protection to an individual who could well have incriminated the president. Once again, with a wave of the presidential hand, the rule of law was abolished and the rule of men restored."
Then candidate Obama entered the political stage and promised that things would be different if he were elected. Greenwald recalls how "Obama placed the restoration of the rule of law at the heart of his campaign, promising to reverse the culture of lawlessness in Washington." Candidate Obama put it this way: "We will again set an example for the world that the rule of law is not subject to the whims of stubborn rulers, and that justice is not arbitrary."
Soon after candidate Obama became President Obama, he began to sing a different tune about upholding the rule of law. Greenwald documents how President Obama, "passionately devoted himself to blocking and suppressing all investigations of the Bush administration, whether carried out by the DOJ or by Congress, by U.S. courts or by judges overseas. Thus began Obama's crusade as a champion of elite immunity – of the very 'Scooter Libby justice' he had vowed to end."
Greenwald gives examples of how the Obama administration has prosecuted those who have revealed illegality by government officials to deter other potential whistle blowers, "… further blocking one of the very few remaining paths Americans have to breach the virtually impenetrable wall of secrecy surrounding the surveillance and national security state." Greenwald concludes the purpose is "to ensure that high-level criminality and other forms of corruption can take place free of all accountability."
There is a distinct possibility that President Obama has been as surprised as the rest of us by all the revelations Edward Snowden has made about the NSA surveillance. If so, President Obama could takes steps to appoint an independent counsel to conduct an investigation into the full extent of the NSA programs and indict those responsible for the illegal surveillance programs. In that event, he should express the gratitude of citizens for the revelations made by Snowden, grant Snowden an amnesty, and invite him to assist with the investigation.
On the other hand, President Obama may have been fully involved in approving all aspects of the widespread surveillance program. If the members of Congress decide those policies not only exceed the letter, but also the spirit of the legislation and/or the Supreme Court decides the NSA programs are in breach of rights protected by the constitution, President Obama will then need to be concerned.
President Obama's invitation for a debate on NSA's "Get All the Data We Can on Anybody and Anything" surveillance programs indicates that President Obama might now recognize the extensive damage that has been caused by those programs. President Obama has to decide whether he wishes to continue the "Washington Elite Policy" of protecting arrogant officials and bureaucrats who are trampling the rights of ordinary people around the world or whether he wants to return to the values he espoused as a candidate, namely to reverse the culture of lawlessness and return to the rule of law.
A Chinese translation of this article appeared in the Ming Pao Newspaper on Sunday, January 19, 2014.