Franklin Roosevelt, in asking for a vast expansion of executive power to meet the twin emergencies of the Depression and war persuasively argued that the Constitution was expansive enough to accommodate the requirements of liberty as well as the need to act in the national defense. “Our Constitution is so simple and practical,” he explained in his first inaugural, “that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.”10 Wilson and Roosevelt each violated civil liberties on a frightful scale, but these older justifications had the advantage of requiring politicians to acknowledge the violation, to say when the public could expect its full rights to be restored, and to explain their interpretation of their obligations under the Constitution.
Balance and the Politics of Secrecy
It was only in the 1940s that the term “security” came to mean protecting state secrets, or, as the Oxford English Dictionary’s earliest record of this usage put it, “the Army term for what normal people call secrecy.”11 The apparatus of official secrecy in the United States, as well as the balance metaphor used to justify it, emerged in the particular cultural setting of the nuclear age, the Red Scare, wiretapping by the Federal Bureau of Investigation (FBI), and the Cold War. Its inventor was Harry S. Truman, under attack for tolerating a State Department riddled with communist spies and for overzealously enforcing the loyalty codes intended to keep spies out. On January 23, 1951, he named Admiral Chester Nimitz to head a presidential commission on secrecy and enjoined him to “seek the wisest balance that can be struck between security and freedom.”12 It was the first recorded use of the balance image.
The balance trope, thus, emerged in a specific policy context. The Nimitz Commission was the first of a series of panels that dismantled the patchwork of McCarthy-era loyalty programs and replaced them with a unified, professionalized system of security clearances. This system classified two things, documents and personnel. Documents were divided into three primary and other exceptional levels of secrecy, and personnel were given “clearance” at corresponding levels. The classification system emerged as a solution to the divisive politics of loyalty, which subjected the Truman and Eisenhower administrations to repeated charges of harboring subversives and sympathizers and which subjected officials, writers, educators, and anyone of influence to unsubstantiated charges against their integrity.
The loyalty programs began in 1941, when Roosevelt authorized the FBI to fingerprint and investigate the backgrounds of all federal employees. In 1947, Truman created an extensive apparatus of commissions to enforce the “complete and unswerving loyalty” of all federal employees.13 Dismissal was mandated on the basis of any “derogatory information” or simply by the subject’s inability to refute unsubstantiated charges. Loyalty was a universal category, and anyone positioned anywhere in the government, from the Manhattan Project to the Bureau of Weights and Measures, could be fired on the basis of mere accusation. The FBI pushed the program outside government, sending “blind memoranda” to private companies fingering suspect employees on their payrolls.14
By 1951, Truman faced a rising public backlash against indiscriminate investigations and reckless allegations of disloyalty. At the same time, Senator Joseph McCarthy was accusing the administration of harboring hundreds of known communists. The security clearance system was designed to narrow investigations to a smaller set of officials who had access to high-level secrets. The press generally applauded the move, but editorials hit at Truman’s framing of the issue as one of balance. The New York Times argued, “We do not have to choose between sedition or treason on the one hand and a sterile conformity on the other. We do not have to endure either.”15 “Security and freedom are not in conflict,” insisted the Washington Post, “they are, on the contrary, complimentary.”16 Editorials maintained that the government was responsible for ensuring both security and liberty, but they welcomed a more civil and methodical process for granting security clearances.
Begun by the Nimitz Commission, the work of establishing a nonpolitical system for rationing security clearances was implemented through presidential Executive Orders 10290 and 10450 and finalized by the Wright Commission in 1957. This solution turned the fractious issue of loyalty into an issue of “suitability” assessed through a system of uniform procedures. “All loyalty cases are security cases, but the converse is not true,” the Wright Commission observed. “A man who talks too freely when in his cups or a pervert who is vulnerable to blackmail may both be security risks although both may be loyal Americans.”17 The polygraph, psychological profiling, and background investigations were tools for drawing a harder, more scientific line between the suitable and the unsuitable.
The new system changed loyalty from a political question to a procedural one and changed “clearance” from a verdict—exoneration before a Loyalty Board—into a credential. By the late 1950s, it was being used as an ordinary noun, a “security clearance,” something everyone in defense or intelligence work had to have. This strategy did not fully end the injustices of the loyalty screenings. In fact, it replaced the Red Scare with a Lavender Scare as the government searched for evidence of unsuitability in bedrooms.18 But, consequentially for the Snowden case, it introduced new hierarchies, between sensitive jobs and nonsensitive ones, those with a clearance and those without, and, eventually, between those with various levels of clearance.
The Cleared and the Uncleared
The language of balance was, thus, introduced to describe the proper relation between the small group of people with a security clearance and the remainder of the American public, which now had no legitimate recourse to the growing system of hidden knowledge their government was creating and using. That is what the balance idea still describes. Snowden justifies his actions as an attempt to redress what he sees as a widening imbalance of power between the cleared and the uncleared. “These things need to be determined by the public, not by somebody who was simply hired by the government,” he explained in his first statement from Hong Kong. “The public needs to decide whether these programs and policies are right or wrong.”19
Today, five million Americans hold security clearances, 1.5 percent of the population. They are seen as government insiders, but they attain that status by sacrificing a substantial share of their rights. Most are subject to lifetime confidentiality contracts that prohibit them from ever speaking about what they know. Those without clearances also sacrifice rights; they live in a country divided between those who know and cannot speak, and those who can speak but do not know.
The politics of the Snowden case rests on this division. Leaks have become the prime driver of reform in the intelligence establishment, not because illegal or improper acts were necessarily committed, but because the public has been left in the dark about what is legal and proper under the applicable rules. The oversight procedures in the executive, legislative, and judicial branches, operating within the confines of the secrecy regime, were satisfied that the system was working and that adequate and effective checks were in place. It was only those outside the clearance wall—the press, foreign leaders, and the public—who were outraged by the nature and scale of the NSA’s activities.
The leaker is now an indispensable but criminalized link, mediating a vexed relationship between the public and the cleared. Snowden is charged, and Bradley/Chelsea Manning was convicted in the Wikileaks affair, with disclosing classified information to “unauthorized persons.” The charge refers not only to the Russians or Chinese, but also to the 308 million Americans without a security clearance. Obama’s vigorous pursuit of leakers, the Department of Justice’s use of subpoenas to obtain information about press contacts, and the administration’s ongoing prosecution of New York Times correspondent James Risen for shielding a confidential source are all attempts to police a crumbling boundary between the suitable and unsuitable sectors of the American polity.
There have been other rationales for drawing arbitrary lines between Americans, a
nd they have proven more or less durable. “Separate but Equal” lasted sixty years; “Don’t Ask Don’t Tell” lasted considerably less. When such barriers fall, they do so abruptly, resting as they do on a kind of common sense that suddenly makes no sense.
Snowden’s most politically damaging revelation was the complicity of the watchdogs charged with protecting the public interest, the oversight committees and the FISA court, which acquiesced when the NSA overstepped even the residual safeguards left standing after 9/11. When it became clear that there was no balancer, no effective advocate for the uncleared majority, NSA surveillance lost legitimacy. To continue, former NSA chief Michael Hayden explained, the president needed to regain “the consent of the governed.” The NSA and the administration scrambled to put forward transparency proposals and shift some collection activities from intelligence agencies to telecom providers.20 This was, Hayden told Chris Wallace of Fox News Sunday, “a PR move.” The president needed to restore an appearance of balance, “but the objective . . . is to keep on doing what he’s doing.”21
Notes
1. Kevin Clarke, “Obama Seeks Balance Between Liberty and Security,” America, May 23, 2013, http://new.americamagazine.org/node/155623.
2. “Liberty’s Lost Decade,” The Economist, August 3, 2013, 11.
3. Klayman v. Obama, 957 F.Supp.2d 1, 43 (D.D.C. 2013). A notable dissent from this perspective appeared in a report released to the public on December 18, 2013, from a special White House panel established to examine issues raised by Snowden’s disclosures. This panel cautioned that while “[t]he idea of ‘balancing’ has an important element of truth . . . it is also inadequate and misleading. . . . In the American tradition, liberty and security need not be in conflict.” President’s Review Group on Intelligence and Communications Technologies, “Liberty and Security in a Changing World,” December 12, 2013, 16, 259. See part II.B for excerpts from the Klayman case and the executive summary of the report of the President’s Review Group.
4. ACLU v. Clapper, 959 F.Supp.2d 724, 757 (S.D.N.Y. 2013). See part II.B for excerpts from the Clapper case.
5. AOL, Apple, Dropbox, Facebook, Google, LinkedIn, Microsoft, Twitter, and Yahoo, “An Open Letter to Washington,” December 9, 2013, https://www.reformgovernmentsurveillance.com/#111614, accessed July 7, 2014. See part II.A for the text of this letter.
6. Jeremy Waldron, “Security and Liberty: The Image of Balance,” Journal of Political Philosophy 11 (2003): 191–210.
7. “Sen. Ron Wyden on Balancing the ‘Teeter-Totter’ of Security and Liberty,” PBS Newshour, December 13, 2013, http://www.pbs.org/newshour/bb/government_programs-july-dec13-nsa2_12-13/.
8. “Face the Nation,” CBS News, August 4, 2013, http://www.cbsnews.com/news/face-the-nation-transcripts-august-4-2013-schumer-ryan-and-mccaul/.
9. “The Press Under Post Office Censorship,” Current History, November 1, 1917, 235–36.
10. Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York: Liveright, 2013), 121.
11. Security, definition d, Oxford English Dictionary (Oxford: Oxford University Press, 3rd ed., 2011), http://www.oed.com/view/Entry/174661?redirectedFrom=security#eid, accessed July 10, 2014.
12. “Text of Truman Order and Statement on Security and Rights Board,” New York Times, January 24, 1951, 12.
13. Executive Order 9835, Prescribing Procedures for the Administration of an Employees Loyalty Program in the Executive Branch of the Government, March 21, 1947, 1.
14. Ellen Schrecker, Many Are the Crimes: McCarthyism in America (Boston: Little, Brown, 1998).
15. “Freedom and Security,” New York Times, January 25, 1951, 24.
16. “Loyalty and Liberty,” Washington Post, January 20, 1953, 14.
17. Commission on Protecting and Reducing Government Secrecy, Secrecy: Report of the Commission on Protecting and Reducing Government Secrecy (Washington, D.C.: U.S. Government Printing Office, 1997), A-51.
18. David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2004).
19. Quoted in David Cole, “The Three Leakers and What to Do About Them,” New York Review of Books, February 6, 2014, 7.
20. See, e.g., President Obama, Remarks on Review of Signals Intelligence, January 17, 2014. See part II.C for the text of this speech.
21. Chris Wallace, “Interview with Michael Hayden,” Fox News Sunday, January 19, 2014, http://www.foxnews.com/on-air/fox-news-sunday-chris-wallace/2014/01/19/hayden-leahy-debate-presidents-proposed-nsa-reforms-obamacare-website-security-getting#p//v/3076728835001.
2
Edward Snowden and the NSA:
Law, Policy, and Politics
FRED H. CATE
The disclosures by Edward Snowden have revealed a great deal about the National Security Agency, its surveillance activities, and the oversight provided by the president, the Foreign Intelligence Surveillance Court (FISC), and Congress. Snowden’s disclosures, and subsequent responses (or lack thereof) by government officials, focus attention on five significant sets of issues that confront the American people and their government: the scope of the NSA’s legal authority, problems with the honesty of U.S. officials, the hypocrisy of the U.S. government concerning cyber espionage, the undermining of cyber security by U.S. actions, and the impact of U.S. surveillance activities on personal privacy.
The NSA’s Legal Authority
The first set of issues concerns the authority under which the NSA has conducted the sweeping surveillance programs Snowden disclosed. Thanks to the documents Snowden leaked, we have learned about more and more NSA practices, including how it undertakes surveillance activities, introduces security vulnerabilities into products and services, or compels the private sector to cooperate in these activities. In each case, we want to know under what legal authority is the NSA acting. To date, the only surveillance activities we know about in legal detail are the ones the Obama administration has addressed publicly—compelling phone companies to disclose metadata about all telephone calls under Section 215 of the USA PATRIOT Act and the PRISM program operated under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is addressed elsewhere in this book.
The Meaning of Section 215 of the USA PATRIOT Act
The first Snowden disclosure was an order from the FISC compelling Verizon (and, we later learned, AT&T and Sprint) to turn over to the NSA on a daily basis metadata on “all calls,” including calls “wholly within the United States including local telephone calls.”1 The FISC issued the order under Section 215 of the USA PATRIOT Act, a broad provision of law empowering the FISC to issue secret orders “requiring the production of any tangible things (including books, records, papers, documents, and other items).”2
The use of Section 215 to require telephone companies to collect and disclose information about all calls made on their networks (other than calls taking place wholly outside of the United States, which the NSA collects through other means) raises many questions about the applicability of this legal authority. For example, Section 215 on its face only applies to the FBI, yet the orders Snowden revealed require disclosure to the NSA. Does “any tangible things” include surveillance of metadata? The statute describes tangible things as “books, records, papers, documents, and other items.” As originally drafted, this legal provision was called the “Business Records Provision” and only applied to the records already kept by commercial entities. Businesses could not be required to create records for the government, only to provide the FBI with access to records that already existed. When the USA PATRIOT Act expanded this provision to include “any tangible things,” the language and legislative history suggested that it meant tangible things that already existed. Yet the FISC orders revealed by Snowden applied to information that did not yet exist.
Most importantly, in the process of expanding what Section 215 covered, Congress specifically limited when Section 215 applied by only permit
ting the FISC to issue orders where there were “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) . . . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”3
There are important limits in that cumbersome phrase, and it simply strains credulity to believe that there was any basis, much less “reasonable grounds,” to believe that metadata on all calls made by all Americans were “relevant to an authorized investigation.” If data on everyone could be relevant to an “authorized investigation,” then the limits enacted by Congress mean nothing.
We subsequently learned through congressional testimony and statements by Obama administration officials that neither the government nor the court claimed that the metadata about all calls were “relevant to an authorized investigation,” but rather were being collected by the NSA only so that those metadata later, in the words of the director of national intelligence (DNI), may be “queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.”4
Rather than limit the FISC orders, as FISA requires, to collecting only the “tangible things” for which there are “reasonable grounds to believe are relevant to an authorized investigation,” the NSA instead sought vastly more data, the majority of which, according to the DNI’s general counsel, are “never going to be responsive to one of these terrorism-related queries.”5 The standard the NSA applied after collection is, in fact, the standard required by Section 215 before the data are collected. This failure to follow the law as written further casts into doubt as to whether the FISC had the authority to the issue the surveillance orders or whether the government followed the law in seeking them.
The Snowden Reader Page 5