But once the citizenry acquiesces to a new power, believing that it does not affect them, it becomes institutionalized and legitimized and objection becomes impossible. Indeed, the central lesson learned by Frank Church in 1975 was the extent of the danger posed by mass surveillance. In an interview on Meet the Press, he said:
That capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything—telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If this government ever became a tyrant … the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back because the most careful effort to combine together in resistance … is within the reach of the government to know. Such is the capacity of this technology.
Writing in the New York Times in 2005, James Bamford observed that the threat from state surveillance is far more dire today than it was in the 1970s: “With people expressing their innermost thoughts in e-mail messages, exposing their medical and financial records to the Internet, and chatting constantly on cellphones, the agency virtually has the ability to get inside a person’s mind.”
Church’s concern, that any surveillance ability “could be turned around on the American people,” is precisely what the NSA has done post-9/11. Despite operating under the Foreign Intelligence Surveillance Act, and despite the prohibition on domestic spying embedded in the agency’s mission from the start, many of its surveillance activities are now focused on US citizens on US soil.
Even absent abuse, and even if one is not personally targeted, a surveillance state that collects it all harms society and political freedom in general. Progress both in the United States and other nations was only ever achieved through the ability to challenge power and orthodoxies and to pioneer new ways of thinking and living. Everyone, even those who do not engage in dissenting advocacy or political activism, suffers when that freedom is stifled by the fear of being watched. Hendrik Hertzberg, who downplayed concerns about the NSA programs, nonetheless acknowledged that “harm has been done. The harm is civic. The harm is collective. The harm is to the architecture of trust and accountability that supports an open society and a democratic polity.”
* * *
Surveillance cheerleaders essentially offer only one argument in defense of mass surveillance: it is only carried out to stop terrorism and keep people safe. Indeed, invoking an external threat is a historical tactic of choice to keep the population submissive to government powers. The US government has heralded the danger of terrorism for more than a decade to justify a host of radical acts, from renditions and torture to assassinations and the invasion of Iraq. Ever since the 9/11 attack, US officials reflexively produce the word “terrorism.” It is far more of a slogan and tactic than an actual argument or persuasive justification for action. And in the case of surveillance, overwhelming evidence shows how dubious a justification it is.
To begin with, much of the data collection conducted by the NSA has manifestly nothing to do with terrorism or national security. Intercepting the communications of the Brazilian oil giant Petrobras or spying on negotiation sessions at an economic summit or targeting the democratically elected leaders of allied states or collecting all Americans’ communications records has no relationship to terrorism. Given the actual surveillance the NSA does, stopping terror is clearly a pretext.
Moreover, the argument that mass surveillance has prevented terror plots—a claim made by President Obama and a range of national security figures—has been proved false. As the Washington Post noted in December 2013, in an article headlined “Officials’ Defenses of NSA Phone Program May Be Unraveling,” a federal judge declared the phone metadata collection program “almost certainly” unconstitutional, in the process saying that the Justice Department failed to “cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack.”
That same month, Obama’s hand-picked advisory panel (composed of, among others, a former CIA deputy director and a former White House aide, and convened to study the NSA program through access to classified information) concluded that the metadata program “was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional [court] orders.”
Quoting the Post again: “In congressional testimony, [Keith] Alexander has credited the program with helping to detect dozens of plots both in the United States and overseas” but the advisory panel’s report “cut deeply into the credibility of those claims.”
Additionally, as Democratic senators Ron Wyden, Mark Udall, and Martin Heinrich—all members of the Intelligence Committee—baldly stated in the New York Times, the mass collection of telephone records has not enhanced Americans’ protection from the threat of terrorism.
The usefulness of the bulk collection program has been greatly exaggerated. We have yet to see any proof that it provides real, unique value in protecting national security. In spite of our repeated requests, the N.S.A. has not provided evidence of any instance when the agency used this program to review phone records that could not have been obtained using a regular court order or emergency authorization.
A study by the centrist New America Foundation testing the veracity of official justifications for the bulk metadata collection concurred that the program “has had no discernible impact on preventing acts of terrorism.” Instead, as the Washington Post noted, in most cases where plots were disrupted the study found that “traditional law enforcement and investigative methods provided the tip or evidence to initiate the case.”
The record is indeed quite poor. The collect-it-all system did nothing to detect, let alone disrupt, the 2012 Boston Marathon bombing. It did not detect the attempted Christmas-day bombing of a jetliner over Detroit, or the plan to blow up Times Square, or the plot to attack the New York City subway system—all of which were stopped by alert bystanders or traditional police powers. It certainly did nothing to stop the string of mass shootings from Aurora to Newtown. Major international attacks from London to Mumbai to Madrid proceeded without detection, despite involving at least dozens of operatives.
And despite exploitative claims from the NSA, bulk surveillance would not have given the intelligence services better tools to prevent the attack on 9/11. Keith Alexander, speaking to a House intelligence committee, said, “I would much rather be here today debating” the program “than trying to explain how we failed to prevent another 9/11.” (The same argument, verbatim, appeared in talking points the NSA gave its employees to use to fend off questions.)
The implication is rank fearmongering and deceitful in the extreme. As CNN security analyst Peter Bergen has shown, the CIA had multiple reports about an al-Qaeda plot and “quite a bit of information about two of the hijackers and their presence in the United States,” which “the agency didn’t share with other government agencies until it was too late to do anything about it.”
Lawrence Wright, the New Yorker’s al-Qaeda expert, also debunked the NSA’s proposition that metadata collection could have stopped 9/11, explaining that the CIA “withheld crucial intelligence from the FBI, which has the ultimate authority to investigate terrorism in the U.S. and attacks on Americans abroad.” The FBI could have stopped 9/11, he argued.
It had a warrant to establish surveillance of everyone connected to Al Qaeda in America. It could follow them, tap their phones, clone their computers, read their e-mails, and subpoena their medical, bank, and credit-card records. It had the right to demand records from telephone companies of any calls they had made. There was no need for a metadata-collection program. What was needed was cooperation with other federal agencies, but for reasons both petty and obscure those agencies chose to hide vital clues from the investigators most likely to avert the attacks.
The government was in possession of the necessary intelligence but had failed
to understand or act on it. The solution that it then embarked on—to collect everything, en masse—has done nothing to fix that failure.
Over and over, from multiple corners, the invocation of the terrorism threat to justify surveillance was exposed as a sham.
In fact, mass surveillance has had quite the opposite effect: it makes detecting and stopping terror more difficult. Democratic Congressman Rush Holt, a physicist and one of the few scientists in Congress, has made the point that collecting everything about everyone’s communications only obscures actual plots being discussed by actual terrorists. Directed rather than indiscriminate surveillance would yield more specific and useful information. The current approach swamps the intelligence agencies with so much data that they cannot possibly sort through it effectively.
Beyond providing too much information, NSA surveillance schemes end up increasing the country’s vulnerability: the agency’s efforts to override the encryption methods protecting common Internet transactions—such as banking, medical records, and commerce—have left these systems open to infiltration by hackers and other hostile entities.
Security expert Bruce Schneier, writing in the Atlantic in January 2014, pointed out:
Not only is ubiquitous surveillance ineffective, it is extraordinarily costly.… It breaks our technical systems, as the very protocols of the Internet become untrusted.… It’s not just domestic abuse we have to worry about; it’s the rest of the world, too. The more we choose to eavesdrop on the Internet and other communications technologies, the less we are secure from eavesdropping by others. Our choice isn’t between a digital world where the NSA can eavesdrop and one where the NSA is prevented from eavesdropping; it’s between a digital world that is vulnerable to all attackers, and one that is secure for all users.
What is perhaps most remarkable about the bottomless exploitation of the threat of terrorism is that it is so plainly exaggerated. The risk of any American dying in a terrorist attack is infinitesimal, considerably less than the chance of being struck by lightning. John Mueller, an Ohio State University professor who has written extensively about the balance between threat and expenditures in fighting terrorism, explained in 2011: “The number of people worldwide who are killed by Muslim-type terrorists, Al Qaeda wannabes, is maybe a few hundred outside of war zones. It’s basically the same number of people who die drowning in the bathtub each year.”
More American citizens have “undoubtedly” died “overseas from traffic accidents or intestinal illnesses,” the news agency McClatchy reported, “than from terrorism.”
The idea that we should dismantle the core protections of our political system to erect a ubiquitous surveillance state for the sake of this risk is the height of irrationality. Yet exaggeration of the threat is repeated over and over. Shortly before the 2012 Olympics in London, controversy erupted over a supposed lack of security. The company contracted to provide security had failed to appoint the number of guards required by its contract, and shrill voices from around the globe insisted that the games were therefore vulnerable to a terrorist attack.
After the trouble-free Olympics, Stephen Walt noted in Foreign Policy that the outcry was driven, as usual, by severe exaggeration of the threat. He cited an essay by John Mueller and Mark G. Stewart in International Security for which the authors had analyzed fifty cases of purported “Islamic terrorist plots” against the United States, only to conclude that “virtually all of the perpetrators were ‘incompetent, ineffective, unintelligent, idiotic, ignorant, unorganized, misguided, muddled, amateurish, dopey, unrealistic, moronic, irrational, and foolish.’” Mueller and Stewart quoted from Glenn Carle, former deputy national intelligence officer for transnational threats, who said, “We must see jihadists for the small, lethal, disjointed and miserable opponents that they are,” and they noted that al-Qaeda’s “capabilities are far inferior to its desires.”
The problem, though, is that there are far too many power factions with a vested interest in the fear of terrorism: the government, seeking justification for its actions; the surveillance and weapons industries, drowning in public funding; and the permanent power factions in Washington, committed to setting their priorities without real challenge. Stephen Walt made this point:
Mueller and Stewart estimate that expenditures on domestic homeland security (i.e., not counting the wars in Iraq or Afghanistan) have increased by more than $1 trillion since 9/11, even though the annual risk of dying in a domestic terrorist attack is about 1 in 3.5 million. Using conservative assumptions and conventional risk-assessment methodology, they estimate that for these expenditures to be cost-effective “they would have had to deter, prevent, foil or protect against 333 very large attacks that would otherwise have been successful every year.” Finally, they worry that this exaggerated sense of danger has now been “internalized”: even when politicians and “terrorism experts” aren’t hyping the danger, the public still sees the threat as large and imminent.
As the fear of terrorism has been manipulated, the proven dangers of allowing the state to operate a massive secret surveillance system have been seriously understated.
Even if the threat of terrorism were at the level claimed by the government, that would still not justify the NSA’s surveillance programs. Values other than physical safety are at least as if not more important. This recognition was embedded in US political culture from the nation’s inception, and is no less crucial for other countries.
Nations and individuals constantly make choices that place the values of privacy and, implicitly, freedom above other objectives, such as physical safety. Indeed, the very purpose of the Fourth Amendment in the US Constitution is to prohibit certain police actions, even though they might reduce crime. If the police were able to barge into any home without a warrant, murderers, rapists, and kidnappers might be more easily apprehended. If the state were permitted to place monitors in our homes, crime would probably fall significantly (this is certainly true of house burglaries, yet most people would recoil in revulsion at the prospect). If the FBI were permitted to listen to our conversations and seize our communications, a wide array of crime could conceivably be prevented and solved.
But the Constitution was written to prevent such suspicionless invasions by the state. By drawing the line at such actions, we knowingly allow for the probability of greater criminality. Yet we draw that line anyway, exposing ourselves to a higher degree of danger, because pursuing absolute physical safety has never been our single overarching societal priority.
Above even our physical well-being, a central value is keeping the state out of the private realm—our “persons, houses, papers, and effects,” as the Fourth Amendment puts it. We do so precisely because that realm is the crucible of so many of the attributes typically associated with the quality of life—creativity, exploration, intimacy.
Forgoing privacy in a quest for absolute safety is as harmful to a healthy psyche and life of an individual as it is to a healthy political culture. For the individual, safety first means a life of paralysis and fear, never entering a car or airplane, never engaging in an activity that entails risk, never weighing quality of life over quantity, and paying any price to avoid danger.
Fearmongering is a favored tactic by authorities precisely because fear so persuasively rationalizes an expansion of power and curtailment of rights. Since the beginning of the War on Terror, Americans have frequently been told that they must relinquish their core political rights if they are to have any hope of avoiding catastrophe. From Senate Intelligence chair Pat Roberts, for example: “I am a strong supporter of the First Amendment, the Fourth Amendment and civil liberties. But you have no civil liberties if you are dead.” And GOP senator John Cornyn, who ran for reelection in Texas with a video of himself as a tough guy in a cowboy hat, issued a cowardly paean to the benefit of giving up rights: “None of your civil liberties matter much after you’re dead.”
Talk radio host Rush Limbaugh piled on, displaying historical ignorance by asking his l
arge audience: “When is the last time you heard a president declare war on the basis that we gotta go protect our civil liberties? I can’t think of one.… Our civil liberties are worthless if we are dead! If you are dead and pushing up daisies, if you’re sucking dirt inside a casket, do you know what your civil liberties are worth? Zilch, zero, nada.”
A population, a country that venerates physical safety above all other values will ultimately give up its liberty and sanction any power seized by authority in exchange for the promise, no matter how illusory, of total security. However, absolute safety is itself chimeric, pursued but never obtained. The pursuit degrades those who engage in it as well as any nation that comes to be defined by it.
The danger posed by the state operating a massive secret surveillance system is far more ominous now than at any point in history. While the government, via surveillance, knows more and more about what its citizens are doing, its citizens know less and less about what their government is doing, shielded as it is by a wall of secrecy.
It is hard to overstate how radically this situation reverses the defining dynamic of a healthy society or how fundamentally it shifts the balance of power toward the state. Bentham’s Panopticon, designed to vest unchallengeable power in the hands of authorities, was based on exactly this reversal: “The essence of it,” he wrote, rests in “the centrality of the inspector’s situation” combined with the “most effectual contrivances for seeing without being seen.”
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