NSA Spying Is a Power Grab
Why did the NSA switch from the privacy-protecting system which worked to catch terrorists to one that spied on all Americans in violation of their constitutional rights?
A very high-level congressional committee security staffer – Diane Roark – gave a hint on a Frontline show this month. Roark was the congressional staffer in charge of overseeing the NSA for the Republicans on the House Intelligence Committee.
NARRATOR: [Senior House Intelligence Committee staff between 1985-2002 Diane] Roark was summoned to the top deck at the NSA to meet with Director Hayden.
DIANE ROARK: My whole point in going there was to ask him why he had taken off the protections, the encryptions and the automated tracking. I asked this any number of times, and he always evaded answering. And I finally just decided I was not going to leave the room until I got an answer. And so I kept asking.
So about the fifth time, he looked down, and I rememberhe could not look me in the eye, and he said, “We have the power. We don’t need them.” And he made clear that the power he was referring to was the commander-in-chief’s chief’s wartime authority.
Washington’s Blog asked Roark to explain what the NSA chief meant when he told her that NSA had the power to ignore the Constitution. She explained (via email):
Article II Powers
General Hayden referred to the President’s Article II powers [as commander-in-chief during wartime]. The Administration has defended these powers as allowing the President to override existing laws, and has said that the 2001 congressional Authorization for Use of Military Force (AUMF) was in essence a declaration of war and thus allows him to do so. The AUMF has never been revoked, and this obviously is necessary to stop the practice. In its January 2006 White Paper defending the portion of the program that had leaked in the NYT, toward the end DOJ also argued that wartime surveillance did not have to be accomplished “in the lease intrusive manner possible,” or words to that effect.
The use of Article II is continuing, despite extremely permissive legislation such as the PATRIOT Act and the FISA Amendment Act of 2008. While all eyes are focused on PA provisions 215 and 702, that fall under the FISA court, it appears that the great majority of the collection actually occurs under Executive Order 12333, invoking these Article II powers. Those powers are not subject to even the very weak FISA Court oversight (that was further eviscerated by the FAA in 2008). Regarding EO 12333, see Richard Clarke’s testimony before Senate Judiciary 1/14/14 in answer to Sen. Chris Coons. Greenwald/Snowden documents also reference the EO.
I believe the executive prefers this even more secret exercise of power mostly because Americans would be rebellious if they knew the full extent of surveillance. Another reason for invoking them appears to have been Mr. Cheney’s known determination to recover presidential powers, especially national security powers, that he believed were much weakened after Watergate; this issue was covered by Frontline. And of course the administration would claim it is because of the need for secrecy so terrorists would not take precautions — although as Greenwald notes, there is now “nowhere to hide,” at least to communicate electronically in privacy.
The exercise of these alleged powers appear to include, e.g.
– past torture and rendition practices
– massive “upstream” collection from fiber optic cables as referenced in Snowden documents and as revealed by Mark Klein in 1/06.
– massive postal mail surveillance
Clarke testimony refers to “a great deal of metadata collected by the national security letter program.”
– amassing of government data on US persons. This is contrary to an explicit privacy law provision forbidding the practice, and apparently under an alleged national security exception other than that for air travel. See Julia Angwin, WSJ 12/12/12, http://online.wsj.com/news/articles/SB10001424127887324478304578171623040640006
– collection of citizen “business records” other than communications records.
– claiming state secrets to avoid regular (Article III) court review of such tactics, as well as withholding from these courts the source of evidence against defendants that was collected through such means, including “parallel construction” of a fake evidentiary trail to present during trial discovery. See e.g. Reuters 8/13, http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805.
DOJ went so far as to allow the Solicitor General to lie (apparently unknowingly) to the Supreme Court about this.
Binney told us:
When you drop the privacy protections, you are able to spy on all your political opponents and do the things that the IRS does plus get rid of people you don’t want in government, like General Petraeus and General Allen and others like Elliot Spitzer, etc.
The data they used against Spitzer was from what I understand: phone calls, e-mail and money transactions. All part of this mass collection of data.
Others were confronted with their data too. Like [Pulitzer prize-winning New York Times investigative reporter] Jim Risen, [chief Fox News Washington correspondent] Jim Rosen, AP, Jesselyn Radack [former ethics adviser to the United States Department of Justice, and attorney for Edward Snowden, Thomas Drake and other high-level whistleblowers], the NSA whistleblowers Thomas Drake, Kirk Wiebbe, me, etc. In at least our case, they had a warrantless wire tap on us as early as May 2006.
Further, you can target Supreme Court Judges, other judges, Senators, Representatives, law firms and lawyers, and just anybody you don’t like … reporters included.
Not to mention the tea party and other politically active or wanna be’s.
It also meant they did not have to go to the FISC [Foreign Intelligence Surveillance Court] to get a warrant to look into US citizens.