This article is © 2013 by Stephen J. Sniegoski. All rights reserved by author.
This version was posted August 31, 2013 by WTM Enterprises.


The National Security Agency, Snowden, and the U.S. Constitution


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— The Fourth Amendment to the United States Constitution (1792)

When the Constitution was being adopted to rectify the apparent weaknesses of the existing government under the Articles of Confederation, critics of the new document charged that it would create a central government able to use its expanded powers to oppress the people. Although supporters of the Constitution, the self-styled Federalists, vehemently denied that it would give the national government such dangerous powers, some of the most important states ratified it only with the stipulation that amendments would be added to protect the rights of the people against government power. Those became the first ten amendments to the Constitution, known collectively as the Bill of Rights. They were introduced in the First Congress in 1789 and officially adopted in 1792. Considering the now prevalent focus on national security above all else, one cannot emphasize too much that the fundamental purpose of the Bill of Rights was not to make the new government more efficient but to protect the citizenry from that very government.

In light of the bombshell revelations about the National Security Agency (NSA) made by whistleblower Edward Snowden, it now appears that the restrictions on the power of the U.S. government regarding the privacy and overall freedom of individuals are being ignored altogether in the name of protecting American national security. Snowden, who was a contract worker for the NSA, left his job in May of this year, and his revelations began to appear in early June in The Guardian, a British newspaper. At the present time, as Snowden makes clear, the NSA collects all phone calls, e-mails, and text messages in the United States along with various other types of Internet traffic; and some of the collecting requires the forced cooperation of private companies. On August 15, the Washington Post reported that a Snowden leak consisting of an internal NSA audit and other top-secret documents revealed that "[t]he National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008....


One "unintended interception" by the NSA involved a "large number" of telephone calls placed from Washington, D.C., when a programming error confused the Washington area code, 202, with 20, the international dialing code for Egypt. Now, since this audit covered only the NSA's Fort Meade headquarters and other facilities in the Washington area, one would think that the NSA interceptors would automatically know the area code for Washington, and that the agency would not accidentally end up with the phone records of members of Congress and other high-powered Washington figures. (Apparently, no use was made of the records.)

It must be mentioned that in the recent past the NSA was an agency so secret that it rarely received much notice even from civil libertarians, who generally focused on the CIA or the FBI. The inside joke was that the initials NSA stood for "No Such Agency." In fact, the NSA is the largest intelligence agency in the U.S. government.

The NSA focuses on signals intelligence — communications and electronic — which is becoming increasingly important as information technology advances at an astronomical pace; the CIA concentrates on human intelligence. The NSA's headquarters is located about halfway between the cities of Baltimore, Maryland (20 miles distant), and Washington (25 miles distant), on the grounds of Ft. George Meade. Although exact figures are not known to the public, the NSA is the state of Maryland's largest employer and largest consumer of electrical power, according to Wikipedia.

Although there were hints that the NSA was engaging in massive surveillance activities of questionable legality before Snowden's revelations, the federal government tried to assure the U.S. Congress and the American people that there was nothing to it — that all surveillance activities were quite limited. For example, testifying on the subject at a hearing of the Senate Select Committee on Intelligence on March 13 of this year, James Clapper, director of national intelligence — the highest-ranking intelligence official in the U.S. government — was asked by Sen. Ron Wyden (D-Ore.): "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"

While most American mandarins are skillful enough to evade telling anything close to the truth without having to rely on an outright lie, Clapper fumbled. "No sir," he replied to Wyden and then added, "Not wittingly." Wyden has pointed out that Clapper was allowed to amend his statement after the hearing and could have removed the lie, but he refrained from doing so.

Let's pause for a moment and compare Clapper to Snowden. Which is worse: lying to Congress or revealing government lies? Leading government figures and members of the mainstream media have made much of Snowden's employment oath at the NSA to protect U.S. government secrets and not to engage in unauthorized leaking of classified information, the violation of which led the Justice Department to charge him with espionage and theft of government information. Some political luminaries, such as Senate intelligence committee chairwoman Dianne Feinstein (D-Calif.), have gone so far as to say that Snowden should also be tried for treason, a federal crime that could entail the death penalty.

But how did Snowden harm American national security? He did not turn over military secrets to an enemy of the United States. He was not like those who smuggled atomic bomb secrets to Stalinist Russia, providing it with the wherewithal to destroy the United States. Rather than aiding a foreign government, Snowden aided the American people by telling them what their government was doing to them! As a matter of fact, America's enemies, actual and potential, probably didn't need a Snowden to feed them information. Perfectly experienced in the dark arts of espionage, and organized in spy rings as opposed to depending on a lone individual, they no doubt have gained access to at least as much information about the NSA's activities as Snowden was able to obtain.

Philip Giraldi, a former CIA officer who is now executive director of the Council for the National Interest, writes in The American Conservative:

The fallback argument that Snowden has alerted terrorists to the fact that Washington is able to read their e-mails and listen in on their phone conversations — enabling them to change their methods of communication — is hardly worth considering, as groups like al-Qaeda have long since figured that out. Osama bin Laden, a graduate in engineering, repeatedly warned his followers not to use phones or the Internet, and he himself communicated only using live couriers. His awareness of U.S. technical capabilities was such that he would wear a cowboy hat when out in the courtyard of his villa to make it impossible for him to be identified by hovering drones and surveillance satellites.
Since it is almost a certainty that America's potential enemies already knew about what Snowden revealed, the only thing that Snowden did wrong was to violate his NSA oath, which, in this case, would seem to be about as morally binding as the pledge of loyalty made by members of the German military and civil government during the Third Reich to the person of Adolf Hitler. Needless to say, having sworn loyalty to Hitler did not protect any leading German official from punishment at the major Nuremberg Trial (1945-1946), where they were deemed personally culpable for the orders they followed. Contrary to what seems to be the current conventional wisdom, that trial had little to do with the Holocaust but focused heavily on what was explicitly stated to be the major crime of Nazi Germany — the making of aggressive war, under the rubric of which, it should be added, would also fall such wars as the U.S. attack on Iraq in 2003.

We are told that the NSA oath of secrecy trumps Snowden's belief that the activities he revealed were an unconstitutional threat to the American people, the contention being that members of the executive agencies must not be allowed to follow their own interpretations of the U.S. Constitution. But the German officials tried at Nuremberg were expected to have abided by the definition of an illegal aggressive war as set forth in the Kellogg-Briand Pact of 1928, to which Germany was a signatory, instead of abiding by the oath they swore to their nation's leader. Was the meaning of that international document more apparent to the inhabitants of the 62 countries who signed it than the U.S. Constitution should be to American citizens?

To return to Clapper's lies to Congress, one must ask why mainstream entities aren't demanding that he be sacked or severely punished for lying to Congress. Shouldn't he be charged with perjury? Yet absolutely no punishment whatsoever has been meted out to him. He remains in his high-ranking position and is given important assignments. As is obvious, that is in sharp contrast to the draconian punishment hanging over the head of Edward Snowden like the sword of Damocles.

In the eyes of the mainstream, an oath of secrecy to the NSA is considered sacrosanct, but lying at a congressional hearing, an act of perjury, can be ignored. How can Congress conduct its constitutionally required oversight of the federal executive branch, which enforces the country's laws, if officials of that branch lie to it about what is going on? Even if some senior members of Congress knew the truth before Snowden's revelations — and participated in the deception — the overall aim of the effort was certainly to keep the American people in the dark. How can American voters make intelligent decisions about their government if that government disinforms them about its activities? That is a total violation of the concept of constitutional democracy that the United States constantly preaches for the rest of the world.

Campaigning for the presidency, Barack Obama promised transparency and openness, in contrast to the devious habits of the Bush-Cheney regime. Such has not occurred. In fact, President Obama seems to be outdoing his predecessors in illegal surveillance. As Sen. Rand Paul (R-Ky.) aptly described the situation (June 12, 2013):

In the United States, we are supposed to have a government that is limited with its parameters established by our Constitution. This notion that the federal government can monitor everyone's phone data is a major departure from how Americans have traditionally viewed the role of government. If this is acceptable practice, as the White House and many in both parties now say it is, then there are literally no constitutional protections that can be guaranteed any more to citizens. In the name of security, say our leaders, the Constitution has become negotiable.
Ironically, after staunchly defending the NSA surveillance program since Snowden's revelations were made public in early June, Obama in his August 9 news conference made a rhetorical volte face, announcing that he planned to overhaul the policy to make it "more transparent." In line with the post-Snowden crescendo of criticism of the sweeping NSA surveillance policy, Obama stated: "Given the history of abuse by governments, it's right to ask questions about surveillance, particularly as technology is reshaping every aspect of our lives."

Let's quickly review the implications of what Obama was now saying. It seems that Snowden did not provide any information other than what Obama now claimed the American people had a right to know — that is, the broad scope of the NSA surveillance.

Stretching credulity, Obama asserted that his apparent reversal was not owing to the public uproar caused by Snowden's revelations, but rather was something that he had been thinking about long before Snowden entered the picture. To be sure, a reasoned discussion of the NSA's activities, said the president, would have been better without Snowden's leaks: "My preference — and I think the American people's preference — would have been for a lawful, orderly examination of these laws; a thoughtful, fact-based debate that would then lead us to a better place." He did concede that "Mr. Snowden's leaks triggered a much more rapid and passionate response." But he was sure that if he had "sat down with Congress and we had worked this thing through," civil-liberties concerns would have been dealt with in a more appropriate, decorous manner.

All of that being so, and in view of the president's alleged deep concern, one is driven to ask why Obama allowed his director of national intelligence to lie to Congress about the spying without immediately correcting him.

While Obama's rhetoric harmonized with the criticism of the existing surveillance policy, he offered few specifics that would actually bring about any significant change. In fact, many astute critics pointed out that the president appeared to be engaging in a public-relations effort to smother the firestorm of concern caused by the Snowden leaks and thus get the American people to support the existing surveillance program, with only a few minor alterations being undertaken. In short, the program would still continue to violate the basic tenets of the Fourth Amendment to the Constitution and thus threaten fundamental American civil liberties.

When, on August 12, Obama ordered the creation of a review group to investigate the NSA's surveillance activities, it appeared at first that he had actually appointed James Clapper to lead the investigation! After an outcry, however, the White House announced that Clapper would not be overseeing the review of his own agency but only "establishing" the review group composed of "independent outside experts." But involving Clapper in the process in any way whatsoever gives one little confidence as to its likely objectivity. And there is even little assurance that the issue of Fourth Amendment violations will even fall within the purview of the investigation. The whole thing looks more like the usual government whitewash.

Many insist that a trade-off between security and liberty is inevitable. But it is questionable whether the American people have actually become more secure as a result of the NSA surveillance. For instance, at a Senate Intelligence Committee hearing on June 13, after listening to Gen. Keith Alexander, the NSA director, claim that his agency had thwarted "over 50" terror plots, Sens. Mark Udall (D-Colo.) and Wyden said that they "have not yet seen any evidence showing that the NSA's dragnet collection of Americans' phone records has produced any uniquely valuable intelligence."

Even in relatively free countries, wartime conditions ineluctably lead to a diminution of basic liberties; many argue that, in some cases, such a reduction of freedom might be necessary for the survival of the freer society where the enemy, if victorious, would render the people of that country far less free, and possibly kill and impoverish large numbers of them. But countries at war undoubtedly go overboard in suppressing anything that has the slightest possibility of aiding the enemy. And it is predictable that a people at war will go overboard in such a matter when they think that their national survival or even personal freedom and lives are at stake. Governments at war invariably use propaganda to foster that kind of thinking. Certainly those who run the state have a vested interest in using war to aggrandize their own power.

The obvious lesson to be derived from that is that the best way to preserve individual liberty is to avoid war unless its prosecution is absolutely necessary. And that is not the case for the relationship between the United States and the countries and peoples of the Middle East, where vital interests do not conflict. It is plain that it is America's militant interventionist foreign policy in the region that has provoked the animosity against it. Consequently, it is reasonable to believe that any danger coming from that region would be much reduced, if not eliminated entirely, if the United States were not engaged in war or warlike activities against countries and groups there. Moreover, it is reasonable to believe that the danger would be less if the United States did not defend and arm the Islamic countries' major enemy — Israel — which oppresses their co-religionists.

Previous American military intervention even brought about the 9/11 attack. As Michael Scheuer, who headed the CIA's Osama bin Laden unit in the late 1990s, pointed out in his explosive work Imperial Hubris (2004), members of al Qaeda saw themselves as pursuing a "defensive jihad"; they did not hate America because of "what America is," as the George W. Bush administration constantly pontificated, but because of America's policies in the Middle East. Among those policies, Scheuer cited the United States's unlimited support for Israel's occupation of Palestine, its propping up of "apostate" Arab puppet governments, and its military occupation of Muslim land. (Pp. 9, 227)

Scheuer, who titles his website "non-intervention.com," has grown increasingly critical of the role of Israel in shaping American foreign policy. In an examination of "varieties of disloyalty," he bemoans the likelihood that the United States "will keep taking any and all actions that protect Israel even though such actions incite the Muslim world's steadily deepening hatred for America, and ensure that American kids will be fighting and dying in an endless war with Islam."

Quite obviously, American military intervention in the Middle East has not improved the situation in the region, as is apparent in the continued violence and instability in Afghanistan and Iraq. Nor has it reduced the terrorist threat to Americans overseas, as illustrated by the killing of American diplomats in the Benghazi consulate in Libya on September 11, 2012, after the "liberation" of that country, and also by the recent closing of 19 American embassies owing to the perceived threat of terrorist attack.

Why is it that the United States, half a world away from the Middle East, is more threatened by terrorism than non-Islamic countries that are in much closer proximity and that have conflicting interests with Islamic groups? Simply put, the explanation is a militarily aggressive foreign policy that those other countries to a large extent eschew. (Those that emulate the United States to some degree do tend to have such a problem.) So it can be said that the United States, in essence, brings terrorism upon itself.

It is clear that instead of severely curbing fundamental American constitutional freedoms at home in the effort to combat terrorism, real and imagined, the United States should eliminate its militant interventionist policy and thus act like most other countries in the world. If it did so, there would not even be an arguable need to reduce liberty at home.   Ω

August 31, 2013

This version was posted in 2013 by WTM Enterprises.

For further reading, off site, TLD recommends:

"The Phony Trade-off between Privacy and Security," by Sheldon Richman, Future of Freedom Foundation, August 16, 2013.

"U.S. spy network's successes, failures and objectives detailed in 'black budget' summary," by Barton Gellman and Greg Miller, Washington Post, August 29, 2013.


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