YOU'RE BEING WATCHED
By Neal Lawrence
|It's not just the terrorists who are under surveillance. Big Brother is snooping into your
credit history, medical, travel, tax, insurance, education, library, vehicle, email, web and phone records too.
|In the first days and weeks after the terrorist attacks of September 11, 2001, politicians throughout the land could be heard uttering some variation on the following theme: If we change our American way of life, the terrorists will have won. We were encouraged to continue traveling, shopping, and enjoying leisure pursuits just as we had before the al-Qaida attacks. But the deeper message was clear: It was going to take more than 19 suicide-bent hijackers aboard four airliners to convince the proud inhabitants of the land of the free and the home of the brave to give up even one of their hard-fought freedoms.
But thats exactly what we have done. Without any prior national debate or the consent of the governed, the Bush administration with the help of Democrats as well as Republicans in Congress has been able to effectuate drastic changes in our way of life, such that many of our cherished freedoms are in jeopardy or have already vanished.
Under the guise of protecting us from terrorists, in the post-9/11 America, there has been a precipitous expansion of efforts to gather and analyze information on U.S. citizens. According to a breakthrough, Pulitizer prize-winning story in The New York Times, the National Security Agency (NSA), at the direction of President Bush, has launched unprecedented surveillance of Americans, including wiretapping without court orders.
Mr. Bush asserts his role as commander-in-chief grants him the sole authority to ignore a court that Congress established years ago to consider wiretap requests, and act arbitrarily he says, in the interest of preventing terrorist attacks.
But others claim the Constitution, and specifically the Fourth, Fifth and Sixth Amendments, are being violated. They point to the admission that only 12% of government surveillance is counter-terrorism. The rest is data mining that invades your privacy.
Certainly nothing in the national consensus to combat terrorism after 9/11 envisioned the unilateral rewriting of more than 200 years of tradition and law by one President embarked on an ideological crusade.
Bush officials have said the surveillance is tightly focused only on contacts between people in this country and Al Qaeda. Vice President Dick Cheney claims it has saved thousands of lives by preventing attacks. Karl Rove and the White House spin machine are trying to change the debate and even the vocabulary calling it a terrorist surveillance program rather than domestic spying.
Mr. Rove told Republican officials President Bush believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who theyre calling and why. Some important Democrats clearly disagree.
But as The New York Times noted, Mr. Rove knows perfectly well that no Democrat has ever said any such thing and that nothing prevented American intelligence from listening to a call from Al Qaeda to the United States, or a call from the United States to Al Qaeda, before Sept. 11, 2001, or since.
The Times has called the Administrations actions the familiar mix of political spin, clumsy historical misinformation, contemptuous dismissals of civil liberties concerns, cynical attempts to paint dissents as anti-American and pro-terrorist, and a couple of big, dangerous lies.
Indeed, when the White House claims only to have targeted those supporting terrorists, thats little comfort from an Administration that says that any Am-erican who disagrees with its policies is aiding and abetting the enemy.
Most troublesome is that Mr. Bush seems to also be taking a page from Richard Nixons playbook on paranoia. Bush has ordered the National Security Agency, fbi and cia to tap the phones and emails of political opponents.
This means that if you are active in, or give money to, groups like Greenpeace, People for the Ethical Treatment of Animals, the American Indian Move-ment, the Quakers, Ancient Forest Res-cue, and the Catholic Workers, you may have come under federal scrutiny. And they didnt bother to apply for a warrant. The Catholic Workers advocated peace with a Christian and semi-communistic ideology, an agent wrote in an fbi dossier, in language eerily reminsicent of Joseph McCarthy and J. Edgar Hoover.
The harsh reality is that Big Brother isnt just confining his snooping to people with suspected terrorist links. Average citizens are also being scrutinized as never before in our nations history, and our rights to privacy clearly trampled.
The government now collects vast troves of data on you, including consumer credit histories and your medical and travel records. Databases track your networks of friends, family and associates, not just to identify who is a terrorist but to try to predict who might become one.
According to national press reports, large telecommunications companies, including AT&T, MCI and Sprint, are routinely granting the feds access to their systems and customer data without warrants or court orders. Instead, they are cooperating on the basis of oral requests from government officials.
Federal snoops have swept up vast quantities of e-mail messages and telephone calls and used computer searches to generate thousands of leads. However, FBI officials have conceded that virtually all of these led to dead ends or to innocent Americans. The biggest fish the Administration has claimed so far has been a crackpot who wanted to destroy the Brooklyn Bridge with a blowtorch a case that fbi officials said was not connected to the spying operation anyway.
Without any Constitutional mandate, the feds are now able to strip you of your rights at will, listen in on your phone conversations, monitor your web browsing and scan your emails for words they deem inflammatory all without a court order and infiltrate the citizen groups through which we gather peacefully to express our beliefs.
The Justice Dept. said in March that the National Security Agency can even legally monitor confidential communications between doctors and patients or attorneys and their clients, though members of Congress and legal scholars take issue with this assessment.
Many innocent Americans, including a four-year-old boy, the police chief of Northfield, Minn., the co-author of the book Bushs Brain and Congressman John Lewis (d-Ga.) have found themselves on terrorist watch lists compiled by the federal government. They have no idea how they got on the lists, and even though 30,000 of them have demanded their names be removed, the federal government refuses to do so.
The Bush administration even went to court to compel the search engine Google to give it a sweeping amount of material from its databases, including 1 million Web addresses and records of all Google searches that show what you are viewing. While Google resisted the request, Yahoo, aol, and msn complied. A judge then ruled against Google.
Ironically, all of this spying on Americans is occurring against the backdrop of an Administration that is secretive in the extreme, so much so it has gutted the Freedom of Information Act and recently re-classified records in the National Archives that have been previously available to the public for 50 or more years. The President repeatedly attempts to keep secret his actions and those of his principal aides by invoking often spurious claims of executive privilege and national security such as in the run-up to the disastrous war in Iraq or the response to Katrina. The White House also routinely refuses to supply documents lawfully requested by Congress.
Misinformation At the Highest Levels
The Fourth Amendment to the Constitution guarantees that 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.
Yet as the recent revelations confirm, President George W. Bush decided soon after 9/11 that the Fourth Amendment was retractable given the right set of circumstances, which he alone would determine, without any oversight from Congress or the courts. Bush simply decided in 2002 that his so-called war on terror trumped Constitutional protections, and warranted the use of secret wiretaps, which the Fourth Amendment and the 1978 Foreign Intelligence Surveillance Act explicitly prohibit.
So Bush secretly ordered the National Security Agency (NSA) to expand surveillance of citizens inside the U.S. by listening in on international phone calls and peeking at e-mails between Americans. The Boston Globe estimates that upwards of 2 million emails per hour are being scrutinized by the feds.
Mr. Bush sought to conceal his actions from the American public. In a speech in Buffalo, New York, in April 2004, the President commented, Any time you hear the United States government talking about wiretap, it requires a wiretap requires a court order. Nothing has changed, by the way. When were talking about chasing down terrorists, were talking about getting a court order before we do so.
Mr. Bushs statement was contradicted by the fact that he had personally ordered wiretaps without warrants.
But he summoned the publisher and editor of The New York Times to the Oval Office to demand they not print the story revealing the existence of his wiretap program. When they went ahead anyway, the White House initially denied the programs existence.
When the evidence became irrefutable, the Administration started talking about limitations of the program, such as it only being used in international communications, and only with individuals in the United States who have a clear link to al-Qaida. Now the White House has been forced to backpedal even further.
Then Bush attacked The Times for virtual treason, and his aides initiated a full-court press to track down whoever had provided information to the newspaper. Our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk, he declared.
But surely Americas enemies already knew they are subjected to some of the most sophisticated electronic eavesdropping in the world.
Then the White House moved to punish the whistleblowers. Carl Bernstein reported Literally dozens of investigations have been ordered at the cia, the Pentagon, the National Security Agency, and elsewhere in the executive branch to find out who is talking to the press about secret activities undertaken in this Presidency. These include polygraph investigations and a warning to the press that reporters may be prosecuted under espionage laws.
Undeterred by the public outcry, and his dismal 32% approval rating in the polls, Mr.Bush vows to continue spying on American citizens. In a rare confront-ation with a citizen at a staged event, Bush was unrepentant, refusing to apologize.
Instead, the Administration has racheted up talk of the terrorist threat, accelerated its drive toward a military attack on Iran and publicly proclaimed its long-held covert doctrine of greatly ex-panded and unchecked executive authority. In testimony that drew heated exchanges with Republican as well as Democrat Senators, Attorney General Alberto Gonzales refused to deny the notion that the President can contravene any law he chooses under his authority as commander-in-chief. Writes Chris Floyd, The scope of Bushs claimed powers arbitrary sway over the life and liberty of every person on earth far surpasses that of the most megalomaniacal Roman emperor or totalitarian dictator.
How Did This Happen?
First came the mis-named Patriot Act, which was anything but patriotic and instead bestowed broad police-state powers on those who would erode our most cherished freedoms. Mysteriously, the details of this proposal had already been drafted prior to 9/11 and were given to Congress by Attorney General John Ashcroft immediately after the terrorist attacks. The Act did not, however, provide for the system of checks and balances that traditionally safeguards civil liberties.
Ashcroft gave Congress one week in which to pass the bill without changes. He claimed that further terrorist acts were imminent, and that Congress would be to blame for such attacks if it failed to enact the measure immediately.
South Dakota Democrat Sen. Tom Daschle, the majority leader, sought unanimous consent to pass the Repub-lican proposal without debate or amendment; only Sen. Russ Feingold of Wis- consin voted against the measure.
This sweeping legislation, which radically changed the way in which law enforcement and government agencies could operate, was passed without most of our nations elected representatives in Washington even having read it.
President Bush worked doggedly to thwart an investigation, but a bipartisan commission determined that the failures of 9/11 did not derive from a lack of surveillance capabilty. They pinned the blame instead on a failure of government agencies to share information they already had about the terrorists, and devise tactical strategies to impede their actions. So the Patriot Act wasnt even needed. Yet it remains on the books and has been strengthened thus encroaching on the privacy of citizens.
Polls show that most people approve of strong measures to find terrorists. But the Patriot Act allows law enforcement officers to get sneak and peek warrants to search a home for any suspected crime and to wait months or even years to tell the owner they were there. Last July, the Justice Department admitted to the House Judiciary Committee that only 12% of the sneak and peek warrants it received were related to terrorism investigations.
mlThe Patriot Act also notoriously requires librarians and booksellers to open their records to the fbi so that it can trace your internet activities and reading preferences. Lib-rarians are legally obligated to provide the material but cannot reveal to you that such disclosures have taken place. A Freedom of Information request to the Justice Department regarding the number of fbi library visits was denied by the government. Nonetheless, a survey conducted by the University of Illinois in October 2004 sent to 1,505 directors of 5,094 u.s. public libraries, showed that the fbi had visited at least 545 libraries (10.7%) to ask for these records.
In 2002, once again compliant Democrats joined Republicans in Congress to further authorize $500 million for the Homeland Security Department to develop data mining and other ad-vanced analytical tools.
The government has also enlisted a surprising array of entities to spy on you. For instance, the Cable tv Privacy Act of 1984 says a government department, which would include police, can only get information concerning a cable subscriber with a court order and the subscriber must be given the opportunity to contest the claim. But who-tv in Des Moines, Iowa, aired a series of reports concerning an incident in which a cable installer for Mediacom allegedly spotted marijuana in a customers home, and turned account information over to authorities. Two Mediacom execs denied on camera to who-tv that their company had a policy of aiding the police in such a manner, even though evidence later surfaced in the form of inter-office memoranda contradicting their denials.
Ups and Fed-Ex have acknowledged helping police with surveillance of suspects without court order. It has also been reported that police in Des Moines have held training seminars for employees of Target and Wal-Mart on how to keep an eye on customers.
All of this has a familiar ring to it the neighbor-spying-on-neighbor plan that existed in Nazi Germany, and was resurrected in proposals made by convicted Iran-Contra felon Adm. John Poindexter who had been part of both Bush administrations. (Poindexter was convicted on multiple felony counts on April 7, 1990 for conspiracy, obstruction of justice, lying to Congress, defrauding the government, and the alteration and destruction of evidence pertaining to the Iran-Contra affair. The convictions were later reversed on technical grounds.)
Despite his sordid history, he was re-hired by President George w. Bush to put together a program called Total Information Awareness, designed to harness all government and commercial databases to preempt national security threats. The idea was that disparate, seemingly mundane behaviors can reveal criminal intent when viewed together. More disturbing, it assumed that any deviance from social norms can be an early indicator of terrorism. Congress killed that program in 2003, after an outcry from both conservatives and liberals, but many of Poindexters related projects continued.
By 2004, when the nonpartisan Con-gressional General Accounting Office surveyed 128 federal departments and agencies to determine the extent of data mining, it found 199 operations, only 14 of which related to counterterrorism.
You Have No Privacy Left
What type of information could these government entities mine? Your tax, education, vehicle, criminal and welfare records for starters. But also other digital data, such as your travel, medical and insurance records and dna tests. Section 505 of the Patriot Act (innocuously titled Miscellaneous National Security Authorities) extends the type of information the government can obtain without a warrant to include credit card records, bank account numbers and information on Internet use.
Your checking account may tell which charities or political causes you support. Your credit card statements show where you shop, and your supermarket frequent-buyer-card records may indicate whether you keep kosher or follow an Islamic halal diet. Internet searches reveal what you read. Faith forums or chat rooms offer a window into your thoughts and beliefs. E-mail and telephone conversations contain intimate details of your life.
Average Americans, receiving correspondence from friends or family overseas, have had their mail opened by the federal government without their consent.
To subdue any citizen uprisings and discourage national discourse on unchecked executive powers, the government spends millions of taxpayers dollars to buy laudatory coverage from syndicated columnists, and faux news stories from the media. This Bush propaganda campaign is unprecedented, and is more suited to a totalitarian regime than a democracy. It hammers home story after story about security fears about terrorists plotting nuclear bombs or infectious diseases on our city streets, about the noble shield of Homeland Security and the insecurity of Social Security, and about the dire threats of the worthless, lazy poor.
Yet the outrageously inept handling of Hurricane Katrina and its aftermath by the feds exposed the cronyism of political appointments, massive waste and fraud, a lack of preparedness and gross ineptitude at the highest levels.
Data Mining Could Victimize You
You have few legal rights to know whats in any secret government file kept on you, and no way to expunge erroneous information, no matter how harmful it may be. Laura Donohue, a fellow at Stanford Universitys Center for International Security and Cooperation, observes: As anyone whos tried to dispute an erroneous credit report can attest, once computer networks exchange data, it may be difficult to verify its accuracy or where it entered the system. Citizens who do not know they are under surveillance cannot challenge inaccurate information that may become part of their secret digital dossier.
However, if you really want to understand what might be at stake in the NSA controversy in terms of our freedom and privacy, the Internal Revenue Service offers a compelling case study in what it calls its Questionable Refund Program.
Under this program, computers and data-mining techniques are used to sift through millions of tax refund requests and financial records, using the same basic approaches employed by the National Security Agency to analyze billions of phone calls, e-mails and other data. But while the security agency is looking for clues to potential terrorists, the IRS is mining its data for fraudulent tax refund requests.
As Jay Bookman of the Atlanta Journal-Constitution writes, Its a useful technology, but according to a new government study, almost two-thirds of the refund requests identified as fraudulent through irs data-mining are actually honest and clean. Of those returns categorized by the irs as conclusively fraudulent, 46% werent fraudulent at all. In other words, irs data-mining falsely identifies hundreds of thousands of American taxpayers as tax frauds every year.
Such misidentifications are called false positives, and theyre inherent in data mining.
Given that reality, the idea that the security agencys data mining of U.S. communications is capturing only the conversations of terrorists is naiive in the extreme. The false positives in an operation of that scale in other words, the numbers of Americans falsely identified by the program as possible terrorists are undoubtedly enormous.
Under irs policy, tax refunds identified as fraudulent are immediately frozen, sometimes permanently, based on no evidence except that their return matches the computer profile. And because those frozen refunds on average amount to 25% of the taxpayers yearly income, freezing those refunds often impose(s) a severe economic hardship on hundreds of thousands of Americans who have done absolutely nothing wrong except turn up as a false positive, Taxpayer Advocate Nina Olson reported to Congress.
The latest outrage is that the IRS is going to permit tax preparers to sell previously confidential information on you to others. So even your tax returns wont be private anymore.
Ray McGovern, a veteran of 27 years in the cias analysis directorate, and a member of the Steering Group of Veteran Intelligence Professionals for Sanity (vips), notes that the federal government has a long history of using domestic intelligence for [nefarious] purposes. J. Edgar Hoover, the first director of the FBI, was adept at using information so acquired not only to pursue those he suspected of Communist or un-American activities, but also to maintain his power and influence for 47 years over Presidents, members of Congress and other power brokers, McGovern points out. The fbis cointelpro activitys use of such information to harass and discredit Dr. Martin Luther King, Jr. is a particularly glaring example of such abuse.
With government agents now snooping increasingly into our private lives, Ray McGovern asks: Would you trust a Karl Rove, a Dick Cheney, an Elliot Abrams, a Roberto Gonzales, a [Scooter] Libby, a David Addington or a John Bolton with such information?
Casting A Very Wide Net
Some of the snooping seems ludicrous. From what we know of the automated e-mail wide net fishing approach, the technique seems to be self-defeating. It is predicated on the appearance of keywords that indicate terrorist activity.
But surely anyone sending electronic mail that contains terrorist intent is going to bury the actual sense of the communiqué in more innocuous language.
Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears. A published report for the Defense Advanced Research Projects Agency said machines can easily determine the sex, approximate age and social class of a speaker.
Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to portions of conversation, wash out most of the leads within days or weeks.
The Washington Post reported that the scale of warrantless surveillance, and the high proportion of bystanders swept in, sheds new light on Bushs circumvention of the courts. National security lawyers, in and out of government, said the washout rate raised fresh doubts about the programs lawfulness under the Fourth Amendment, because a search cannot be judged reasonable if it is based on evidence that experience shows to be unreliable.
The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be right for one out of every two guys at least. But as the Post noted, Those who devised the surveillance plan, the official said, knew they could never meet that standard thats why they didnt go through the court that supervises the Foreign Intelligence Surveillance Act, or FISA.
Opposition Within the Ranks
While acknowledging that we have to be aggressive in pursuing and thwarting terrorists, critics are scornful of Bushs decision to allow the NSA program to bypass the special court that Congress established in 1978 to approve or reject secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage. Congress passed the law creating the Foreign Intelligence Surveillance Court precisely because another President, Richard Nixon, bent the intelligence agencies and the entire government to his will in pursuing those he considered his enemies.
The Administration claims it is too cumbersome and slow to seek warrants from that court even though the court has granted such warrants in more than 17,400 cases and only rejected them four times. They say they must move more swiftly despite the fact that the law permits them to eavesdrop for 72 hours before seeking a warrant that is routinely and quickly granted. The Bush White House seems resentful of having to ask for a second opinion.
Some suggest that the Administrations real reason for cutting the secret court out of the loop is that some of the information they are basing the secret wiretaps on was obtained through torture. The court warned early on that it would not permit information acquired through extra-legal or illegal methods to pervert the American court system.
FBI officials quoted in press reports have stated they were uncomfortable with the expanded domestic role played by the nsa and other intelligence agencies, saying most intelligence officers lacked the training needed to safeguard Americans privacy and civil rights. While they agreed some protections had to be waived temporarily in the months after Sept. 11 to detect a feared second wave of attacks, they questioned whether emergency procedures like the eavesdropping should become permanent.
FBI director Robert Mueller was said to have questioned the Administration about the legal authority for the program. FBI officials also repeatedly complained to the spy agency that the unfiltered information coming from the nsa was swamping investigators, who were having to track down leads that were unproductive and a huge waste of time.
The Bush team deliberately concealed this program, not only from the public and Congress, but, most damning of all, from the very agency that is responsible for executing the laws of this country: the Department of Justice (DOJ). Bush ap-pointees, such as former Assistant At-torney General James Comey, and former Attorney General John Ashcroft, objected to the nsas wide-ranging warrantless spying.
Newsweek magazine reported that some Justice Department lawyers had stood up to the hard-liners, centered in the office of the Vice President, who wanted to give the President virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, the rebellious employees fought to bring government spying and interrogation methods within the law. They did so at their peril; ostracized, some were denied promotions, while others left for more comfortable climes in private law firms and academia. Some went so far as to line up private lawyers in 2004, anticipating that the Presidents eavesdropping program would draw scrutiny from Congress, if not prosecutors.
Significantly, these individuals within Justice were conservative political ap-pointees, Newsweek noted, who had been friends and close colleagues of some of the true believers they were fighting against.
These rebels did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.
Elizabeth de la Vega comments that After 20 years as a federal prosecutor, I am absolutely certain that the vast majority of career attorneys at DOJ and criminal prosecutors from U.S. Attorneys Offices around the country, as well as federal law enforcement agents, would have refused to participate knowingly in this program. Bush and his coterie knew that their legal arguments were weak and intellectually dishonest, if not ludicrous, so rather than making their case honestly, even to their own people, they avoided dissent by acting in secret and affirmatively misleading the entire country.
His neo-conservative allies say Mr. Bush is merely acting to uphold the essential prerogatives of his office. Attorney General Alberto Gonzales has claimed historic precedent for a President to authorize warrantless surveillance. He pointed to George Washington, Woodrow Wilson and Franklin Roosevelt, although legal scholars say these precedents have no bearing on the current situation. Mr. Gonzaless timeline conveniently ended with fdr, rather than including Richard Nixon, whose surveillance of antiwar groups and other political opponents inspired fisa in the first place. Like Nixon, Bush is waging an unpopular war, and his Administration has abused its powers against antiwar groups and even those that are just anti-Republican.
George Bush has repeatedly stressed his role as commander-in-chief, invoking it as frequently as he can, and conflating it with his other roles, domestic and foreign. When added to the idea that we have entered a perpetual state of war, the implications of this theory stretch as far into the future as we can imagine.
Actually, as Peter Irons documents in his outstanding book, War Powers: How the Imperial Presidency Hijacked the Constitution, the Founding Fathers never intended for the commander in chief to have any powers beyond ordering troops to repel an invasion force. As everyone understood in 1787, the title was strictly ceremonial. He argues that a President cant declare war, much less violate our privacy, based on his commander-in-chief authority.
Harold Koh, the dean of Yale Law School, said after analyzing the Executive Branchs claims of these previously unrecognized powers: If the President has commander-in-chief power to commit torture, he has the power to commit gen-ocide, to sanction slavery, to promote apartheid, to license summary execution.
A report released by the nonpartisan Congressional Research Service further states that the decision to spy on U.S. citizens was based on weak legal arguments, and conflicts with existing law.
Conservative writer Christopher Hitchens says that This is, first of all, an appalling abuse of state power and an unjustified invasion of privacy, uncovered by any definition of national security however expansive. It is, no less importantly, a stupid diversion of scarce re-sources from the real target.
Hitchens notes that We are, in essence, being asked to trust the state to know best. But, he asks, What reason do we have for such confidence? The agencies entrusted with our protection have repeatedly been shown, before and after the Fall of 2001, to be conspicuous for their incompetence and venality.
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