. . . because much of the content relates both to Washington, D.C., and "outside the beltway" -- the heartland, specifically Iowa -- and because after going from Iowa to Washington via Texas and California I subsequently returned, From DC 2 Iowa.
They're Not Just for the Intelligence Community Anymore
The law provides a remedy for someone harmed by the deliberate or negligent actions of a corporation.
Such remedies create two problems for defendants. One is the money damages, sometimes in the millions. Usually, for a large corporation, that's something that can be paid for out of the petty cash drawer. Not a big problem.
The more significant consequence, especially when they intend to go on harming -- or in the case of the tobacco industry, killing -- their customer base, is the negative impact on sales from bad publicity, which can mount up to multiples of any tort damages.
This aspect of the private sector's problem is similar to what the intelligence community is now confronting with the public. There are the substantive policy questions that surround the alleged constitutional and law violations in what they are doing. But more significant for them in many ways is their having lost the ability to maintain a cloak of secrecy over their actions. If a government intends to violate the law in the way they spy on their own citizens it is really necessary to have confidentiality agreements with employees, restraining them from talking about citizen abuses -- making them subject to prosecution for "espionage" and "aiding the enemy" should they reveal the government's intent. When government agents obtain citizens' private papers from third parties, they must be able to silence those from whom they obtain the papers, insuring that they will never tell what the agent has done -- also backed up with the possibility of prosecution. An ability to intimidate those with knowledge of what's going on is central to the success of surveillance programs.
Actually, corporations have been using similar techniques for some time. Once caught red handed, they will offer to settle law suits, exacting as a part of their cash offer a gag order, forbidding the plaintiff to reveal anything about the case, the harm done by the corporation, or the amount of the settlement. [Fracking water photo credit: multiple sources.]
So I wouldn't even be writing about this subject were it not for the excellent job Stephen Colbert recently did explaining how it worked for a family suffering health damages from fracking. Here it is:
If you didn't know what Colbert was referring to when he spoke of "tap fires" in that video clip, this picture will clear up any confusion. It gives "firewater" a whole new meaning: water you can set on fire. [Photo credit: multiple sources.]
To remind, and put private sector gag orders in context, here is Colbert's explanation of the President's citizens surveillance program:
Naturally, the common people don't want war; neither in Russia, nor in England, nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. . . . [T]he people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.
-- Nazi leader (second to Hitler) Herman Goering, April 18, 1946, quoted in Gustave Gilbert, Nuremberg Diary (1947), confirmed by Snopes.com.
We are in the process of losing one of our most precious rights as Americans; one our nation's founders fought the Revolutionary War to obtain for us: our rights to privacy guaranteed in the Fourth Amendment. See, "The Future of Surveillance, and How to Stop It," August 4, 2013. [Photo credit: Gregory Johnson.]
Make no mistake, it should be obvious that no American, including myself, treats casually the possibility of another 9/11. (Though now 50%, including myself, believe that eliminating every destructive, violent act, regardless of significance, is neither possible nor worth further loss of Americans' privacy rights.) And clearly, I am not saying that there will not be any terrorists' acts during the remainder of this week. How on earth could I know? There may be.
But I find this last weekend's rush to embassy closings throughout the Middle East and Africa very troubling.
1. The timing was suspicious. Having barely avoided passage of a Congressional bill restricting the NSA's domestic surveillance of Americans, only hours later this new, unspecified, terrorist threat -- primarily abroad -- offered the opportunity to brief all of those who had voted for the bill, saying in effect, "See, we told you how well the NSA's surveillance programs work and protect Americans' safety." ("Some analysts and Congressional officials suggested Friday that emphasizing a terrorist threat now was a good way to divert attention from the uproar over the N.S.A.'s data-collection programs." Eric Schmitt, "Qaeda Messages Prompt U.S. Terror Warning,"New York Times, August 3, 2013, p. A1. Never mind that this newly found threat abroad, and the surveillance that uncovered it, is totally unrelated to the domestic surveillance that produced the nation's uprising of opposition and the bill for which those legislators had just voted. As the New York Times editorialized today, "No one has questioned the N.S.A.’s role in collecting intelligence overseas, but the debate is about domestic efforts to vacuum up large volumes of data on the phone calls of every American that are legally questionable and needlessly violate Americans’ rights. A threat from Al Qaeda, no matter how serious, should not divert attention from a thorough investigation of the domestic spying."
2. Governments, including ours, are notorious for manipulating their population with fear. Struggling to find a reason for invading Iraq, the Administration came up with a number of scary assertions, all of which proved to be false -- that Saddam Hussein had weapons of mass destruction, was an ally of al Qaeda who helped plan 9/11, and that he had aluminum tubes for purposes of building atomic weapons. They were following Goering's advice (quoted above) to "tell them [the people] they are being attacked," up to and including, as Condoleeza Rice put it on CNN, September 9, 2002, "We don't want the smoking gun to be a mushroom cloud." Bill Moyers, "Buying the War," Bill Moyers' Journal, April 25, 2007.
3. The supposed threat was so general as to be worthless. "Something is going to happen, somewhere, sometime this week -- maybe as soon as Sunday," we were told. How helpful is it to know that there may be a suicide bomber outside an American embassy somewhere in Africa, or a train derailed in France, or hackers into the power grid causing a blackout throughout the Midwest -- or something else we can't imagine at a place we'd never suspect? What are we supposed to do with that information? Isn't that now true of every day of every week? We've been living with that, and most folks have been going about their business -- with the realization that more pedestrians are killed each year than died in the 9/11 disaster. Aside from scaring people, and gaining support for NSA domestic surveillance, what was the point?
4. Isn't it more likely this was what's called "rabbit chatter"? The intelligence community talks of "chatter," meaning what their surveillance picks up as cell phone conversations or text messages. But the terrorists -- especially their top leaders ["Ayman al-Zawahri, who succeeded Osama bin Laden as the head of the global terrorist group, and Nasser al-Wuhayshi, the head of the Yemen-based Al Qaeda in the Arabian Peninsula," Eric Schmitt and Mark Mazzetti, "Qaeda Leader's Edict to Yemen Affiliate Is Said To Prompt Alert,"New York Times, August 6, 2013, p. A1.] -- did not need Edward Snowden to tell them this was going on. They are many things, including evil. But they are not dumb. They have work-arounds, including couriers, for carrying on communication among themselves when they don't want to let the NSA in on their plans.
When they do let us listen it's usually deliberate, and designed to mislead us. Indeed, in this instance, concerned that our intelligence might miss their messages, "the Qaeda leader, Ayman al-Zawahri, posted on jihadist forums on Tuesday [August 30] . . . his address [calling] for attacks on American interests in response to its military actions in the Muslim world and American drone strikes in Pakistan and Yemen" -- something we could have found out with a $200 used laptop rather than a multi-hundred-billion-dollar NSA. Eric Schmitt, "Qaeda Messages Prompt U.S. Terror Warning,"New York Times, August 3, 2013, p. A1. (Our "military actions," not incidentally, have been an enormous recruiting program for AQAP (Al Qaeda in the Arabian Peninsula), which has seen the number of volunteers increase after every drone strike.)
The intercepted messages were most likely their "rabbit chatter" -- as in, "Oh, look at the cute rabbit!" -- designed to take our eye off of the ball, cause the U.S. government to spread the terror amongst us, and save Al Qaeda the cost of the airline tickets to send their terrorists here -- kind of a win-win from their perspective. We should not be dismissive, or otherwise find their rabbit chatter reassuring. After all, it just means they're planning on carrying out something else while we're busy gearing up for embassy bombings in the Middle East or Africa. But it does mean it's highly unlikely they are going to risk telling us their plans.
5. The media's reaction was frightening. Most newspapers and TV programs fell in line as propagandist cheerleaders, repeating the Administration's line with great solemnity and alarm, without a whisper from reporters -- or the opportunity for guests -- to express either skepticism or even ask serious questions about what our government was doing. It's Iraq all over again. As Bill Moyers observed in 2007 about the media's role in that war, "Four years ago this spring the Bush administration . . . plunged our country into a war . . .. The story of how high officials misled the country has been told. But they couldn't have done it on their own; they needed a compliant press, to pass on their propaganda as news and cheer them on. . . . [T]he story of how the media bought what the White House was selling has not been told in depth . . .. As the war rages into its fifth year, we look back at those months leading up to the invasion, when our press largely surrendered its independence and skepticism to join with our government in marching to war." Bill Moyers, "Buying the War," Bill Moyers' Journal, April 25, 2007.
6. The government's double standard hypocrisy doesn't build trust. Have you noticed? Our government has leaked that it is monitoring the Al Qaeda leadership, by name (see 4, above), that it includes messages between Pakistan and Yemen, the time it received the messages in question, and their content. So far as I have read, there has been little to nothing written about the possible risk to our national security, and the effectiveness of NSA programs, from these revelations.
Compare this to the reaction to Edward Snowden's revelations. He carefully did not reveal such details; he was concerned about domestic surveillance programs relatively unknown to the public (and, as it's turned out, many senators and members of congress. If I recall correctly, he said little if anything about our foreign surveillance of Al Qaeda operatives.
The former, the government's revelations, may well have caused serious damage to the real efforts to protect us from terrorism. Whether you consider Snowden a hero or a criminal, it's hard to deny that his revelations did not risk that kind of damage.
And yet, those providing the government's revelations are apparently not going to confront even criticism, let alone prosecution. Meanwhile, those in the intelligence community, and their apologists in Congress, while silent about the government's leaks, describe Edward Snowden as a "traitor," engaged in "treason," who ought to be imprisoned for life if not put to death.
What is the consistent theme here?
It seems to me it relates to the impact on the Administration's, and intelligence community's, public relations. Revelations that embarrass the government will be considered "treason" (for example, that the government has withheld from the American people the extent to which it is spying on them). Those that demonstrate how wonderful our surveillance programs are working to protect us from terrorism (deceptively suggesting the unrelated domestic surveillance programs are equally valuable) will be considered "patriotism."
7. More bizarre, inexplicable inconsistency further challenges government's credibility. If there really is a potential danger to all U.S. embassies in the Middle East and Africa, warranting their closing and protection of their employees -- a matter as to which I don't express an opinion -- why, oh why, would our embassies in the two countries where we are at a stage of "war" be exempt??!! "The United States is to keep some of its embassies in North Africa and the Middle East closed until the end of the week as a precaution due to a possible al-Qaeda terror threat. Yesterday [Aug. 4] 21 diplomatic posts were shut . . .. However US embassies in Kabul, Baghdad and Algiers will reopen today [Aug. 5]." "Terror Threat Keeps Some U.S. Embassies Closed Until Saturday," Euronews, August 5, 2013.
8. "Do unto others . . .." Imagine for a moment that the roles were reversed. Imagine that Canada was letting Al Qaeda have bases for drones -- or unable to prevent them. Imagine that Al Qaeda was targeting our leaders -- pick your favorites: Senators and members of Congress, the President, Joint Chiefs of Staff, football coaches, hedge fund managers, whoever you feel closest to. Imagine that, in the process, they ended up killing, probably unintentionally, members of your family, or your church, or your football team. Can you understand why what we are doing in Yemen -- as I write this -- is increasing, much faster than it is decreasing, the number of Yemenis who join AQAP, but the far greater numbers who simply seek revenge against us?
As I write this, I am sitting in the room where I lay on the floor, my head in the radio speaker, December 7, 1941, listening to the news that the Japanese had bombed Pearl Harbor, while my father brought me the globe, spun it, and pointed out Hawaii -- perhaps in an effort to reassure me it was farther away than Cedar Rapids. We may be better off these days, in a way, not accepting on blind faith everything our government tells us. But there were advantages to the government motivating us with a spirit of patriotism, rather than with a fear of terrorism. We came together as a nation then, fought and won a world war in less than half the time it will take us to become, and remain, bogged down in Afghanistan. There was a role for everyone in WWII, including seven-year-old boys; there was no political capital to be gained by a senator declaring his party's primary political goal was to make the president fail; then, that would have been regarded as treason.
I wish I could feel the sense of trust in my government this evening that I felt 70 years ago, but I just can't.
The speech was videotaped by Aleksey Gurtovoy, embedded in speech text below, and by Julie Spencer of Iowa City's Public Access Television (PATV). An edited version was scheduled to be cablecast on the Iowa City PATV channel, 6:30 p.m., August 24, 31, and September 7, and at 12:00 noon on August 28, and September 4 and 11. That version is available on YouTube as "NSA Restore the Fourth Rally in Iowa City August 4, 2013," Newsline Iowa City, and here:
The Future of Surveillance, and How to Stop It
Text of Nicholas Johnson's Remarks
1984 Day: Restore the Fourth's Nationwide Action Against the NSA’s Unconstitutional Surveillance
Ped Mall, Iowa City, Iowa
August 4, 2013, 12:00-2:00 p.m.
It has been 64 years since George Orwell’s classic novel, 1984, was published in 1949.
“George Orwell was an optimist,” once a humorous line, is today a terrifying reality.
As a law professor, I’m used to speaking for entire semesters at a time. Aleksey Gurtovoy has requested a short course of 20 minutes.
That’s a tough assignment, given the legal and policy issues regarding the NSA’s spying.
Let’s start with a story: how the Fourth Amendment came to be.
[Photo and video credit: Aleksey Gurtovoy.]
Once upon a time, in a land far away, a sheriff broke into the home of a Mr. Semayne.
It was 1604, and the British judge told the King that was a no-no. The court’s opinion declared, “The house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose” – more commonly repeated as, “an Englishman’s home is his castle.”
In a later case, Entick v. Carrington, the British court examined the search warrant and declared it overly broad, because it authorized the taking of all of Entick's papers, not just those involving criminality. Moreover, it said, the warrant lacked probable cause for any search.
Those principles found their way into the Fourth Amendment to our Constitution, finally ratified in 1791. It provides: "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."
Clearly, early British law and our Fourth Amendment contemplate our right to a zone of privacy. It is not an absolute right. But it can only be breached by the government if the search is "reasonable," supported by "probable cause" to believe that we have engaged in wrongdoing, and that what is being sought can be "particularly described."
So what was the problem?
Before we had a Constitution, the King considered colonists to be taxpaying British subjects. His tax officials, sent to collect from American merchants what British law said they owed, wanted to be able to look in all homes and businesses for smuggled goods.
To legalize these searches, in 1660 the English Parliament authorized the use of "writs of assistance" -- "assistance" in the sense of a sheriff, say, assisting the customs officials. The net effect was to eliminate the need for a search warrant, thus making the writ of assistance a "general search warrant."
These general search warrants authorized the British to search whomever they wished, wherever they wished, whenever they wished, for whatever they wished, with or without any reasonable basis for suspicion of wrongdoing. No specific search warrant. No identified person or place. No "oath or affirmation" of the "probable cause."
Are you beginning to connect the dots?
You see, the NSA’s surveillance of the American people today is the electronic equivalent of one of the grievances that drove our founding fathers to the revolution we commemorate every July 4th – those British “general search warrants.”
The NSA is engaged in the unreasonable search of all of us, without even a suspicion we have done anything wrong, let alone probable cause, without specifying where they will look or what they are looking for.
And so it is that, 224 years later, an ever-increasing number of Americans – now nearly 50% -- again believe that government surveillance has gone too far, notwithstanding the threats of terrorism.
It has proven very difficult for the public, media – and even our elected officials – to find out basic facts about NSA surveillance.
As New Mexico Senator Tom Udall has observed, “It’s very, very difficult, I think, to have a transparent debate about secret programs, approved by a secret court, issuing secret court orders, based on secret interpretations of the law.”
Our task is made even more difficult by intelligence officials’ willingness to flat out lie. When asked by Senator Ron Wyden whether the government was collecting the meta data from citizens’ phone calls, Director of National Intelligence James Clapper responded simply, “No, sir.” Others, with scarcely more subtlety, speak in terms deliberately nuanced to deceive the public and media.
Measured by any rational benefit-cost analysis, what the government is doing to American citizens in the name of protecting us from terrorism is wildly overreaching. Since 9/11 the overwhelming percentage of deaths from terrorists has been inflicted on our uninvited military personnel in foreign countries, where our presence has both increased recruitment of terrorists abroad – while saving terrorists the cost of airfare to the U.S.
Our intelligence services’ spokespersons are asked to identify instances in which surveillance of Americans was the sole contributor to preventing violence. They struggle, dissemble, mention something between one and 13 possible instances – for which they refuse to provide details.
Moreover, the programs aren’t always effective. Alerted to the Boston bombers, they failed to connect the dots.
Even if you don’t care about personal privacy, consider the money and personnel devoted to surveillance of American citizens. Those costs are clearly grossly disproportionate to any benefits – especially when compared with other programs.
If the government was truly concerned about the preventable death of Americans, the trillions spent fighting wars abroad and conducting surveillance at home could have saved far more lives if spent on other programs. There are over 400,000 deaths a year related to smoking; 32,000 from automobile accidents; 30,000 gun deaths. Americans are 271 times more likely to die from workplace accidents than terrorist attacks. Preventable injury, disease, illness and death include such factors as obesity, lack of exercise, poor nutrition, alcohol and other drug abuse, and the failure to use seat belts and motorcycle helmets. Adequate funding of best-practices public health programs could save far more lives that surveillance ever will.
We will never totally eliminate those deaths. Nor will we totally eliminate all terrorist attacks – no matter how much surveillance we have -- whether carried out by American citizens such as Timothy McVeigh in Oklahoma City, or unsuccessfully attempted by Najibullah Zazi against the New York City subway.
Given the grossly disproportionate and ineffective expenditure on surveillance, rationalized as a life-saving effort, one need not be paranoid to wonder what the government’s real motives might be for spying on us.
It may be true there is high global risk this weekend of a massive al Qaeda attack. But it’s not unreasonable to wonder if the warnings are also efforts to support NSA surveillance.
Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and spy agency Stasi, has said of our NSA, "'You know, for us, this would have been a dream come true. . . . So much information, on so many people.'” [Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.]
The NSA has gone from a constitutional, specific search warrant for one person to the electronic equivalent of the old British general search warrant. Because the NSA has the technology that makes it possible, it wants to be able to search every American simultaneously and retain what they find.
The government tries to reassure us everything it is doing is "legal." That's not so clear. President Obama is both relying on a legal opinion interpreting the Patriot Act – but one so secret he can’t share what it says – and, according to this morning’s Guardian, refusing to permit the FISA court’s release of an opinion finding some NSA surveillance unconstitutional. Moreover, many who voted for the Act believe they did not authorize what the NSA is doing. [Glenn Greenwald, “Members of Congress denied access to basic information about NSA; Documents provided by two House members demonstrate how they are blocked from exercising any oversight over domestic surveillance,” The Guardian, August 4, 2013.]
But assume it is "legal." As I sometimes say of corporate abuses, “The problem is not so much that corporations violate the law as that they write the law.”
The issue is not whether an act was passed by Congress. The issue is whether it, and what is done in its name, is constitutional. And even if constitutional, is it right, is it moral, is it how we want to live? As Dr. Martin Luther King has reminded us, "We should never forget that everything Adolf Hitler did in Germany was 'legal' . . .. It was 'illegal' to aid and comfort a Jew in Hitler's Germany." [Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963.] Presumably what the Stasi did was also "legal."
Consider the potential for abuse from citizen surveillance justified as an anti-terrorism program.
• President Nixon authorized a burglary of Democratic National Committee headquarters. Can you imagine the value to a presidential political campaign of access to the phone calls and emails of an opponent?
• When surveillance was called Echelon, Europeans complained NSA was doing industrial espionage for American corporations, resulting in Airbus losing contracts to Boeing.
• What if, as the New York Times reports this morning, terrorist surveillance reveals a planned crime by a non-terrorist, as in the fictional TV show, “Person of Interest”? How can the constitutional rights of the discovered potential criminal be protected? [Eric Lichtblau and Michael S. Schmidt, “Other Agencies Clamor for Data N.S.A. Compiles; Concerns Over Privacy; Tension Abut Sharing in Cases Not Tied to National Security,” New York Times, August 4, 2013, p. A1.]
When I wrote this particular "potential for abuse" my only concern was that what I thought to be kind of a fictional insert for a revised edition of 1984 would provoke my critics into charging me with exaggeration and extremism: "Oh, Nick, now you've gone too far; you know our government would never do that!"
Little did I then imagine that my government was already doing it:
"Reuters has uncovered previously unreported details about a separate program, run by the U.S. Drug
Enforcement Administration, that extends well beyond intelligence gathering. Its use, legal experts say, raises
fundamental questions about whether the government is concealing information used to investigate and help
build criminal cases against American citizens.
The DEA program is run by a secretive unit called the Special Operations Division, or SOD. . . .
The SOD forwards tips gleaned from NSA intercepts . . . to federal agents and local law enforcement officers.
• How can natural curiosity be eliminated – as when UI hospital personal, curious as to the condition of Hawkeye football players with rhabdo [rhabdomyolysis], took an unauthorized peek at their medical records?
• Will there never be an instance of someone helping a friend going through a bitter divorce, by checking out their spouse’s email or bank records?
So, what can, what should, we do?
1. Citizens must take a stand.
The first thing we need to do is what you’ve already done by showing up today, following in the footsteps of America’s colonists in the 1770s. When the people will lead, their leaders will follow. Especially with a cautious Congress as election-focused and dysfunctional as ours, you and I are going to have to step up and take the lead.
2. Legislators, judges, and lawyers must refashion our law of privacy.
We have two, related, problems.
(1) In a world of ubiquitous surveillance -- video cameras, mail covers, collection of phone meta-data and comparable intrusions on privacy -- does a "reasonable expectation of privacy," our current legal standard, provide any protection?
(2) The courts have said that when you give information to a third party, such as a bank, phone company, or Internet service provider, you thereby lose any expectation of privacy.
This is the legal argument of the businesses that are collecting information about our lives, and the government agencies that then retrieve it from them -- information not constitutionally available to the government without the companies’ participation.
It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age.
If you give your private information to a newspaper reporter, who makes no promises, you can't complain when it appears in the paper. On the other hand, we do protect the privacy of the information you provide your doctor, lawyer, or cleric.
Today, there needs to be a third category.
Credit card data may not be entitled to the protection of medical records, but it deserves more than what you give to a newspaper reporter. It’s reasonable to demand a level of trust in the business relationships that are necessities in our economy -- such as banking and phones. We are not gratuitously handing them private information; we must do so to have their service. It is given to them for a specific and limited purpose.
Certainly, the government should not be entitled to corporate records that would have violated customers’ constitutional rights if taken directly from the person whose records they are.
3. Government surveillance of American citizens should be conducted in accord with the requirements of the Fourth Amendment.
Could the government find more potential terrorists if its computers constantly monitored the phone conversations of 300 million Americans? Probably. It could find even more if FBI agents could conduct unannounced searches of 100 million American residences whenever they chose.
But as the Fourth Amendment’s history reveals, it is a specific response to the general search warrants of its time that take the form of NSA surveillance today.
To paraphrase the old saying about gravity, “Protection from unreasonable government surveillance is not just a good idea; it’s the law” – in this case, constitutional law.
Does protecting our rights to privacy mean that some criminals and terrorists will be more difficult to catch? Yes. That’s the trade-off.
But it’s a trade-off the nation’s founders made for us, and considered a more than reasonable price to pay for our rights of privacy.
4. We need a procedure to protect whistleblowers dealing with classified information.
Whether you consider Edward Snowden a hero or a traitor, the fact is that he has enabled a national deliberation even the President acknowledges is necessary. What has followed in the form of media investigations, reporting, and opinion pieces, Congressional hearings and proposed legislation, and modestly more NSA transparency, has created a better informed public.
We have laws protecting whistleblowers from retribution for revelations of conventional governmental wrongdoing. Revelations of wrongdoing in secret, classified programs, possibly unconstitutional, are if anything even more necessary and valuable in a democratic society than revelations of garden variety, unclassified mischief.
Of course, we can’t let everyone with a Top Secret clearance reveal whatever classified information they choose. But we can provide them more alternatives than (1) ongoing complicity in classified programs they believe to be unconstitutional, and (2) leaving the country when confronting the risk of life imprisonment after being charged with espionage or the treason of “aiding the enemy.”
There are many possibilities. One would be to permit whistleblowers’ confidential revelations of concerns to any member of Congress of their choosing. There are others.
We have much work to do, starting with our standing together today here in Iowa City. Thank you for this opportunity to participate in your efforts.
On this year's July 4th eve, it seems appropriate to note that what our government is doing to the American people today with its NSA surveillance, is the modern day equivalent of what drove our founding fathers to the revolution we commemorate.
It is what motivated their inclusion of the Fourth Amendment's protections in our Constitution's Bill of Rights, and a Declaration of Independence from the oppressive "general search warrants" of the British.
What were these British "general warrants"? It's a long story, but here's the gist.
The British customs and tax officials wanted to collect from the American merchants what British law said they owed. Smuggling was a way to avoid payment. So they wanted to be able to search businesses and homes for smuggled goods.
British law provides the philosophical and legal origins of the requirements of our Fourth Amendment, dating from at least Semayne's case (1604) and Entick v. Carrington (1765). So far, so good.
The problem was that, from the perspective of the King, American merchants might be British subjects for purposes of paying taxes, but they did not enjoy the rights of British subjects when it came to British officers' searches of their homes and businesses. [Cartoon credit: Jeff Parker, recipient of numerous awards for syndicated cartoons during his 21 years with Florida Today. July 3, 2013.]
In 1660 the English Parliament authorized the use of "writs of assistance" by customs officials in America -- "assistance" in the sense of a sheriff, say, assisting the customs officials. The net effect was to eliminate the need for a search warrant, thus making the writ of assistance a "general search warrant," or "general warrant."
Which brings us to an appropriate time to examine the details of our Fourth Amendment (similar in most respects to the 18th Century requirements for British search warrants).
The Fourth Amendment provides: "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."
Note that the 1765 Entick case, referenced above, found the warrant over broad, in that it authorized the taking of all of Entick's papers, not just those involving criminality. Our language is "particularly describing the . . . things to be seized." It also found the warrant lacked probable cause for any search. Our language is "no Warrants shall issue, but upon probable cause."
Clearly, what early British law, and our Fourth Amendment, contemplate is, as Sir Edward Coke stated in Semayne, that "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose." That is to say, we all have a legal. moral (and in the U.S. today, constitutional) right to a zone of privacy surrounding our "persons, houses, papers, and effects." It cannot be casually violated. Indeed, it can be breached by the government only when the search is "reasonable," supported by "probable cause" to believe that we -- not people in general, but we in particular -- have engaged in wrongdoing, and that what is being searched for can be "particularly described" in advance.
The general warrants, by contrast, authorized the customs officials to search whomever they wished, wherever they wished, whenever they wished, for whatever they wished, with or without any reasonable basis for suspicion of wrongdoing. No specific search warrant. No identified person or place. No "oath or affirmation" of the "probable cause." No judicial oversight.
In the second ("From Zazi to Stasi") I noted the similarities between what the Stasi was doing and what our NSA is doing. It was only a couple weeks later that I came upon a former Stasi officer's take on how the American government is spying on its citizens.
Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and security/spy agency has said of our NSA, "'You know, for us, this would have been a dream come true.' . . . [H]is department was limited to tapping 40 phones at a time, he recalled. . . . He finds breathtaking the idea that the U.S. government receives daily reports on the cellphone usage of millions of Americans and can monitor the Internet traffic of millions more. 'So much information, on so many people,' he said." Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.
He makes an important point: a difference to be "a difference" has to make a difference. A difference of degree may be a difference that makes no difference. A difference of kind does make a difference.
On your way out the door to a picnic, you ask someone, "What's the temperature?" In this case the difference between 73 degrees and 75 degrees is -- in addition to being literally a difference of degree -- a difference that makes no difference.
When the Stasi's wiretapping ability went from one wiretap to 40, that was a difference. It made a difference. But not that much difference. You clandestinely listen in on one person's conversations, you listen in on 40. But when the NSA goes from a constitutional presumption of one search warrant at a time, for one person at a time, with probable cause, approved by a reviewing judge, to a general search warrant that entitles them to spy on every American simultaneously, just because they have the technology that makes it possible, that is a difference that makes an enormous difference.
We are assured by our government that everything it is doing is "legal." That's not so clear. A part of the problem is that the lawyers' opinion interpreting the Patriot Act that President Obama and his surveillance folks are relying on, they contend is so secret that they can't tell us what it says. Some of those who voted for the Act believe that what is happening is not authorized by the Act.
But assume it is "legal," in the sense that what is being done is in accord with an act of Congress. The question is whether that act, and what is being done in pursuance of that act, is constitutional. And even if it is constitutional, is it right, is it moral, is it how we want to live? As Dr. Martin Luther King has reminded us, "We should never forget that everything Adolf Hitler did in Germany was 'legal' . . .. It was 'illegal' to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers." Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963. Presumably what the Stasi was doing was also "legal."
There was more bad news on the surveillance front today than I like to confront in a 24-hour period before July 4th.
First I read that there is a "Mail Isolation Control and Tracking program, in which Postal Service computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year. It is not known how long the government saves the images." Ron Nixon, "U.S. Postal Service Logging All Mail for Law Enforcement,"New York Times, July 4, 2013.
Then I find out that "As Congress considers a new immigration law that would expand the fleet of unmanned drones along the border, the agency in charge of border protection is increasingly offering the drones it already owns to a
variety of domestic law-enforcement agencies . . . . Three years ago, the drones were used by other agencies 30 times; in 2012, that jumped to 250 times. . . . [T]he border agency said data collected by the drones could be shared with other government agencies, raising concerns about the privacy of Americans within the nation’s borders. . . . [It] raised the possibility of eventually equipping its drones with 'nonlethal weapons' to 'immobilize' people and vehicles trying to cross the border illegally. . . . A bill proposed in the House of Representatives would prohibit firearms on drones in domestic airspace, but not necessarily other weapons like tear gas or pellets. The agency has used Predator drones, the same vehicles used overseas by the United States military since 2005. . . . [They] can fly for 20 hours nonstop. They are based in Arizona, Florida, North Dakota and Texas." Somini Sengupta, "U.S. Border Agency Lets Other Units Use Its Drones,"New York Times, July 4, 2013.
Finally, I learn that those wonderful folks who brought us our laptops and smart phones, software and apps -- our friends -- have been hip deep in the spy business from the beginning. We only got a hint of this recently. Now we find out, "Former U.S. officials and intelligence sources say the collaboration between the tech industry and spy
agencies is both broader and deeper than most people realize, dating back to the formative years of Silicon
Valley itself. As U.S. intelligence agencies accelerate efforts to acquire new technology and fund research on
cybersecurity, they have invested in start-up companies, encouraged firms to put more military and
intelligence veterans on company boards, and nurtured a broad network of personal relationships with top
technology executives. And they are using those connections to carry out specific espionage missions, current and former officials say . . .." Joseph Menn, "Strong Ties Bind Spy Agencies and Silicon Valley," Reuters/New York Times, July 3, 2013.
I've read the Fourth Amendment over and over. Nowhere in it can I find that its protections only extend to the content of: a letter inside a postal envelope, a phone conversation, or an email message. Nowhere in it can I find authorization for surveillance of the entire American population simultaneously, without suspicion or probable cause, to discover to and from whom everyone is writing, talking and emailing. [See below for commentary on "what is a 'search'?"]
What our government is doing, and doing more and more with the passage of time, is the modern day equivalent of the 18th Century British "general search warrants." It is what our Fourth Amendment was deliberately, and specifically, designed to prohibit. The founders insisted that these rights "shall not be violated."
They are being violated. And tomorrow, July 4th, is a good day to reflect upon that fact, and our history.
# # #
What is a "search"?
An issue I have deliberately kept out of the blog essay, above, involves the definition of a "search." The discussion of that issue is not necessary to the general point made in the essay. But it may be necessary to anticipate critics' comments.
It arises as follows. A prohibition on "unreasonable searches" requires not one, but two, findings: (1) that the search was unreasonable, but also (2) that there was, in fact, a "search."
For example, assume a city has an ordinance prohibiting homeowners from keeping old, non-functioning vehicles in their yards. A city official walks, or drives, by a home with three cars in the yard; one's on blocks, another has the hood up, revealing no engine, and the third is severely rusted out. She cites the homeowner with a violation of the ordinance. Can the homeowner claim a Fourth Amendment violation? Was this an "unreasonable search"?
Most would say, "No." Why? Because the Supreme Court's Katz opinion, and its progeny, suggest the standard should be, in this case, (1) did the homeowner have an "expectation of privacy," and if so (2) was that expectation something most people would consider to have been reasonable? Most people would not expect that which they have left in plain sight from the street would be legally protected from being seen by passersby. And if they did have such an expectation, most people would not consider that expectation to have been reasonable.
So far, OK. But we're left with a couple of problems. (1) In a world of ubiquitous surveillance video cameras, mail covers, collection of all phone call meta-data, and comparable intrusions on privacy does a "reasonable expectation of privacy" provide us any protection? (2) The courts have said that when you give information to a third party, such as a bank, phone company, or Internet service provider, you thereby lose any expectation of privacy.
This is the legal argument of the businesses that are collecting information about our lives, and the government agencies that then retrieve the information from them (information that the government might not have been able to acquire constitutionally without their involvement).
It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age. If you hold information you consider to be private, and you turn it over to a newspaper reporter (who makes no promise of protecting your privacy), you can't really complain when it ends up in the local paper. On the other hand, we do protect the privacy of information you hand over to your doctor, lawyer, or priest. And I think there needs to be a third category these days. The information you necessarily have to provide a credit card company, for example, may not be entitled to the protection accorded information you give your doctor. But neither, in my opinion, should it be accorded no more protection than what you hand over to a newspaper reporter, neighbor, or colleague. I believe there is, in fact, a reasonableness in demanding a level of trust in our relationships, business or otherwise, that are necessities in our economy -- such as banking and phones. We need these services. We are not gratuitously handing them private information; it is a necessity that we do so in order for them to provide the service. It is given to them for a specific and limited purpose. And that is what I argue in "Law's Losing Race With Technology; Redefining Privacy," June 7.
Should Government Be Able To Keep Its Abuses Secret?
I'd call the cops, but they're already here.
-- Mason Williams
Everybody knows that the dice are loaded . . .
Everybody knows the fight was fixed . . .
Everybody knows that the boat is leaking
Everybody knows that the captain lied . . .
And everybody knows that the Plague is coming
Everybody knows that it's moving fast . . .
Everybody knows the scene is dead
But there's gonna be a meter on your bed
That will disclose
What everybody knows
That's how it goes
Everybody knows
-- Leonard Cohen, "Everybody Knows"
[H]e [Edward Snowden] appears to be a product of . . . the apparently growing share of young men in their 20s who are living technological existences in the fuzzy land between their childhood institutions and adult family commitments. . . . [Their] life is not embedded in a series of gently gradated authoritative structures: family, neighborhood, religious group, state, nation and world. Instead, it’s just the solitary naked individual and the gigantic and menacing state. . . . For society to function well, there have to be basic levels of trust and cooperation, a respect for institutions . . ..
-- David Brooks, "The
Solitary Leaker,"New York Times, June 11, 2013, p. A23; To which an unidentified Times reader responds with the online comment:
I find it somewhat disingenuous to criticize the younger generation for cynicism and mistrust without acknowledging the wider atmosphere that's responsible for creating such attitudes in the first place. . . . [A]uthorities and institutions have betrayed us at every turn. We have witnessed our political system become hobbled by polarization and corruption, our economy crippled by financial elites, our media devolve into petty bickering and mindless infotainment, our liberties eroded by the unending War on Terror and War on Drugs, our social safety net cut to shreds, our incomes stagnate while the wealthy hoard, our jobs disappear while the stock market soars, our natural
environment raped in the name of profits and convenience, our friends and relatives sent off to wars built on lies, and our privacy systematically invaded by corporations and the government. And you ask . . . why we have lost our respect for authority and trust in institutions?
First they came for the communists,
and I didn't speak out because I wasn't a communist.
Then they came for the socialists,
and I didn't speak out because I wasn't a socialist.
Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.
Then they came for the Jews,
and I didn't speak out because I wasn't a Jew.
Then they came for the Catholics,
and I didn't speak out because I wasn't a Catholic.
Then they came for me,
and there was no one left to speak for me.
-- Martin Niemöller
We should never forget that everything Adolf Hitler did in Germany was "legal" . . .. It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers.
-- Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963
_______________
Whom do you call when the cops are the criminals? Where can a military woman find justice when she is raped by her superior, and even if he is found guilty his superior can overturn the conviction?
And, more to the point today, what is the most appropriate response of a democratic society to its whistle-blowers when what they believe they need to reveal regarding a governmental abuse has been classified "secret"? [Photo credit: multiple sources.]
As Senator Udall has reminded us (quoted above), "It’s very, very difficult, I think, to have a transparent debate about secret programs approved by a secret court, issuing secret court orders, based on secret interpretations of the law." Does that make the case for whistle-blowing about secret, questionable programs stronger or weaker? With all that has been, and will be, written about Edward Snowden's revelations, this is an issue that requires much more discussion among Americans and their elected officials. This blog essay is intended as a stimulus to a beginning of that discussion.
Senator Ted Kennedy said of his brother, at Robert Kennedy's memorial service, "My brother need not be idealized, or enlarged in death beyond what he was in life; to be remembered simply as a good and decent man, who saw wrong and tried to right it . . .."
In a world governed by former Speaker of the House Sam Rayburn's advice to new House members, "If you want to get along, go along," a whistle-blower who "sees wrong and tries to right it" -- as an employee of a hospital, corporation, university, or military unit -- knows there will be a price to be paid: at a minimum, things will no longer be the same with their employer and colleagues. They may be fired. They may find it impossible to find work anywhere within their former industry. As an FCC commissioner challenging some of America's most powerful corporations with revelations about their practices, I knew that I would probably never again be either reappointed to the Commission or employed by law firms in Washington.
Most of us, faced with the choice between what we believe is our moral obligation to at least reveal, if not stop, things we believe to be illegal or otherwise wrong, on the one hand, and on the other hand, to remain silent and continue to be paid, will not casually choose the former over the latter. We have an endless list of our rationalizations for averting our eyes from what, as Leonard Cohen reminds us, "everybody knows."
But the question confronting America today is much more serious than the matter of how we treat everyday, conventional whistle-blowers. All they usually risk is unemployment and ostracism. Few, if any, must consider the possibility that their conscientious act will result in their death, with or without a trial, or life in prison.
That was the potential price that Edward Snowden knew he might pay. As he told The Guardian's Glenn Greenwald:
Yeah, I could be, you know, rendered by the CIA. . . . And that’s a fear I’ll live under for the rest of my life, however long that happens to be. You can’t come forward against the world’s most powerful intelligence agencies and be completely free from risk, because they’re such powerful adversaries that no one can meaningfully oppose them. If they want to get you, they’ll get you, in time. . . .
If I had just wanted to harm the U.S., . . . you could shut down the surveillance system in an afternoon. But that’s not my intention. And I think, for anyone making that argument, they need to think, if they were in my position, and, you know, you live a privileged life -- you’re living in Hawaii, in Paradise, and making a ton of money -- what would it take to make you leave everything behind?
I'm not suggesting that those who make classified information public should be awarded the Congressional Medal of Honor. But neither do I think they should all be knee-jerk labeled "traitors" guilty of "treason" and "espionage" and thrown into the trash pile along with terrorists and felons. ("U.S. Sen. Dianne Feinstein Monday called self-professed National Security Agency surveillance plans leaker Edward Snowden a traitor. . . . 'I don't look at this as being a whistle-blower. I think it's an act of treason,' said Feinstein, chairwoman of the Senate Intelligence Committee." UPI, June 10, 2013.)
But what are we to make of our Director of National Intelligence, James Clapper, who flat-footed lied to the Senate regarding the existence of the NSA program that collects the metadata from millions' of Americans' phone records, quoted above? (Senator Ron Wyden (D-Ore.): "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" To which Director Clapper unambiguously responded, "No, sir.") Which is the greater treason? Who is the biggest traitor? Clapper, who lied? Or Snowden, who told the truth?
Note how our First Amendment protections work. Little to no actual harm came from Edward Snowden's conversations with, and gift of documents to, The Guardian's Glenn Greenwald. As a result of Snowden's actions only one additional person knew "the secrets."
The harm charged by our government, if any there be in fact, only came later. It came when Greenwald, his editor, and publisher, decided to tell all their subscribers -- knowing that other papers would pick up and run with the story, thereby ultimately spreading the secrets to millions. And yet no U.S. official, so far as I know, has argued that The Guardian, The New York Times, The Washington Post, or other papers telling the story of the government's secret spying programs should be prosecuted for treason. As the Pentagon Papers case [New York Times Co. v. United States, 403 U.S. 713 (1971)] demonstrated, once the media is given information, however much the government would like to restrain its publication, the courts believe the First Amendment forbids them to permit the government to do so. The media may exercise self-restraint, including in response to government appeals that publication would threaten national security, but the media cannot be restrained against its will from publishing by government or the courts. The newspaper owner is not prosecuted, nor the editor who approved the story, nor the journalist who got the information from the source, conducted the interviews, and did the research.
One can at least ask, if the values of the First Amendment are so overpowering as to trump the government's judgment that the publication of secrets should be restrained, why are those First Amendment values not equally applicable to the source of that information, so valuable to a democracy -- namely, the whistle-blower?
We also, as a civilized society, recognize acts of conscience -- including with laws providing at least some protection for whistle-blowers. (The Whistleblower Protection Act of 1989 forbids retaliation against government employees who report misconduct.)
In Dr. King's "Letter," quoted and linked above, he says of civil disobedience, "One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."
One of the most serious tests of respect for conscience occurs in wartime, when our government has recognized the right of "conscientious objectors" to decline to be drafted into front line killing of other humans -- substituting community service of some kind as an alternative.
The "Right to Life" folks believe that doctors, pharmacists and others who consider all abortions to be "murder" should be free to act on that belief.
So when Edward Snowden trades in a $200,000-a-year job in Hawaii for the possibility of death and the probability of prison time, I think we have to recognize that as an act of conscience.
I'm with Dr. King. I don't think one should be able to do anything, claim it was compelled by conscience, and thereby escape any recrimination.
However, the issue in Edward Snowden's case is one of the government's own making.
It is saying to potential whistle-blowers, in effect, "You are free to report our run-of-the-mill misconduct; but if you believe our misconduct to be sufficiently serious to constitute a constitutional violation, we can declare our activities to be secret and classified, and thereby reserve the right to prosecute you for treason or espionage if you reveal what we are doing."
Checks and balances? The whole point of whistle-blowing, as with reports of rape in the military, is that the system and requirements of "going through channels" and "following procedure" and "oversight" and "Inspectors General" often fail. Even if the Congress and courts were doing their job of protecting us from the NSA, everything the overseers are doing is also treated as so highly classified as state secrets that they can't tell us enough to reassure us. And, open or closed, there are at least allegations that the NSA sometimes refuses to provide the Intelligence Committees with requested information, and that the Committees have performed more as lapdogs than watchdogs. The FISA "court," some report, has been almost exclusively a rubber stamp for whatever the NSA wants to do. And the executive branch (regardless of who's sleeping in the White House) seems to have been more interested in expanding than restraining its powers.
And with the controversial, litigated, and revised Patriot Act Section 505 gag orders accompanying "National Security Letters" (searches without warrants), American citizens (and their legislative representatives) have even been forbidden to hear from those being searched. The only analogy to that procedure that comes immediately to mind is the pedophile who threatens his victim with severe punishment should he or she ever reveal to anyone how they have been abused.
I'm more interested at this point in stimulating a national debate about revelations of "secrets" than in particular solutions. But here are some of the questions, or standards, I think we might want to consider.
1. Intent. Intent is an element of most crimes; it's one of the differences between "manslaughter" and "murder" -- even though both bring about the death of one person as a result of the actions of another, the defendant. We need to distinguish between revealing state secrets to foreign spies with an intent to aid an enemy, in time of war, and revealing them to a journalist, with an honest intent to prevent government wrongdoing to American citizens.
2. Restraint. In free speech cases we speak of the "least restrictive alternative" standard in evaluating governmental action that impacts speech. In revelations of state secrets we might ask, did the whistle-blower use the most restrictive alternative. That is, did he or she release only enough information to make their point? Did they make an effort to minimize possible harm to the government, or specific individuals? Did they hold back and not disclose some documents, or redact names and portions of others? Or, worst case, did they deliberately try to maximize that harm? Did they personally publicize raw data and documents, or did they filter what was released, both personally and by knowing it would be processed through a responsible media organization, its journalists, editors, and owners?
Snowden told Greenwald, "[A]nybody in the positions of access with the technical capabilities that I had could, you know, suck out secrets, pass them on the open market to Russia. You know, they always have an open door, as we do. I had access to, you know, the full rosters of everyone working at the NSA, the entire intelligence community, and undercover assets all around the world, the locations of every station we have, what their missions are and so forth." The point is, as he's quoted earlier in this blog essay as saying, "If I had just wanted to harm the U.S., . . . you could shut down the surveillance system in an afternoon. But that’s not my intention."
3. Personal responsibility. Did the whistle-blower act behind the curtain of anonymity, or did they come forward, acknowledge, and take responsibility for their revelations -- in the spirit of civil disobedience?
It would seem to me, based on what I now know, that in the case of Edward Snowden he has fully satisfied at least all of those standards.
I am less clear as to the answer of the "So what?" question. I do think we may need new legislation to address that question, and that, at a minimum, meeting these -- and other standards that may be proposed -- ought to take such cases out of the category of "terrorism," "treason," and "espionage," and radically reduce such punishments as might otherwise be appropriate.
For purposes of my question, it is far from decisive -- indeed, it may be not even relevant -- how the American people feel about their government spying on them. (Pew's recent update of its survey indicates we are about equally split, depending on the question -- and, for partisans, which Party occupies the White House.) My question simply addresses the matter of punishment for whistle-blowers who, as a matter of honest conscience, must, in order to be a whistle-blower, reveal things the government considers secret.
The White House maintains a Web site where citizens can start, and others can support and sign, petitions. On June 9 one was posted with the headline, "Pardon Edward Snowden," and went on, "Edward Snowden is a national hero and should be immediately issued a a full, free, and absolute pardon for any crimes he has committed or may have committed related to blowing the whistle on secret NSA surveillance programs." By this morning it was already nearly halfway to it's goal of 100,000 supporters (a number that triggers a self-imposed White House requirement that it respond to the petitioners). It's here. [On July 5th it had already surpassed its July 9th drop dead deadline goal, with 127,663 supporters.]
"The chickens will come home to roost," they say. So apparently do drones.
Drones Abroad
The primary problem with drones fighting our "war on terrorism" is not so much the technology as the absence of the traditional elements of a "war."
We are not fighting another country -- historically a necessary prerequisite to war. Thus, there is no territory we, or our enemy, are trying to take or defend. No frontline, or field of battle. No enemy equivalent of the Pentagon, or our Joint Chiefs. No easily identified uniforms worn by enemy soldiers. No way to produce an obvious victory, enemy surrender, armistice agreement, or even fashion an exit strategy. [Photo credit: multiple sources.]
We are not using drones to kill uniformed, enemy military killing our citizens, or destroying property, in the United States. We are using them to invade countries with which we are not at war, sometimes over the protests of their governments and peoples, to kill their non-uniformed citizens or visitors (and civilians). We kill them, not because they are engaged at that moment in destroying U.S. property, or attempting to kill U.S. military personnel, in one of the 150-plus countries where we feel entitled to have bases. We kill them because we believe they might someday do so, or are engaged in planning or training to do so.
After Lee Harvey Oswald assassinated President John Kennedy, Jack Ruby shot Oswald before he could be tried in court. Suppose the Secret Service, or Dallas local law enforcement, had reason to believe that Oswald, and then Ruby, were giving serious thought to murder. Would those suspicions (or "knowledge," if you wish) have justified assassinating Oswald -- or later, assassinating Ruby before he could kill Oswald, in order to enable a trial of the latter? Because that is, in effect, what we are doing with our drones abroad. [Photo credit: multiple sources.]
When Timothy McVeigh blew up the federal building in Oklahoma City, it was considered a crime, not an act of war. Our response? He was given his constitutional rights and convicted of that crime in a court of law. Although he had come from a community of like-minded folks in Idaho, we did not respond by bombing Idaho or otherwise killing his former "fellow travelers" (to borrow Senator Joseph McCarthy's phrase) who shared his rhetoric.
And now, before we have even developed a vocabulary, and a legal and ethical set of standards for describing, not to mention judging, what we are doing with our drones abroad, we're confronted with another set of issues regarding our drones at home.
Drones at Home
We read that "A future in which unmanned drones are as common in U.S. skies as helicopters and airliners has moved a step closer to reality with a government request for proposals to create six drone test sites around the country. . . . Possible users at home include police, power companies wanting to monitor transmission lines, farmers needing to detect which crops need water or even ranchers counting cows. Privacy advocates worry that a proliferation of drones will lead to a 'surveillance society' in which Americans are routinely monitored, tracked, recorded and scrutinized by the authorities." Joan Lowy, "FAA takes step toward widespread US drone flights," Associated Press/Yahoo!News, February 15, 2013.
I can't say as I mind the idea of ranchers using drones to count cows. Neither does the FAA. It's just worried about drones getting in the way of piloted planes, and there are not a lot of them out where the deer and the antelope roam.
However, I'm not so thrilled about this small step forward for surveillance that is such a giant step backward for privacy.
The Fourth Amendment to our Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." -- a right primarily enforced by excluding evidence so obtained from criminal trials.
The drafters of that protection didn't have the Internet, drones, or other innovative revolutions in technology in mind.
The Fourth Amendment works pretty well when a judge is required to approve a search warrant before one person's emails can be seized and read. But how effective has it been, or could it possibly work administratively, when the government can simultaneously monitor all the emails flowing throughout the Internet?
We can't be said to have "a reasonable expectation of privacy" (Katz v. U.S., 1967) of those things we leave in plain view. But how should, how can, the law respond when everything we do is in the plain view of constantly hovering drones?
The law is years, often decades, behind technology. And so it is again, with drones.
Drones abroad, drones at home. Drones offer us, like the airline captain told his passengers, "Both good news and bad news. The good news is we're making very good time. The bad news is we have no idea where we're going."
We're skiing too far over our skis, folks. Plummeting downhill before our ethicists and legislators, just droning on, can even find their snow shoes.
_______________
Excerpts from this blog essay appeared in the hard copy edition of The Gazette, in its "Blogfeed" section: Nicholas Johnson, "From DC 2 Iowa," February 24, 2013, p. A10, as follows:
The drones are coming! The drones are coming! "The chickens will come home to roost," they say. So apparently do drones.
The primary problem with drones fighting our "war on terrorism" is not so much the technology as the absence of the traditional elements of a "war."
We are not fighting another country -- historically a necessary prerequisite to war. Thus, there is no territory we, or our enemy, are trying to take or defend. . . .
We are not using drones to kill uniformed, enemy military killing our citizens, or destroying property, in the United States. We are using them to invade countries with which we are not at war, sometimes over the protests of their governments and peoples, to kill their non-uniformed citizens or visitors (and civilians). We kill them, not because they are engaged at that moment in destroying U.S. property, or attempting to kill U.S. military personnel, in one of the 150-plus countries where we feel entitled to have bases. We kill them because we believe they might someday do so, or are engaged in planning or training to do so. . . .
We're not paranoid. We have real enemies. . . . But neither is it a "war" -- by any of the standards historically applied and regulated under an international law of war, notwithstanding the Administration's efforts to make it into one.
And now, before we have even developed a vocabulary, and a legal and ethical set of standards for describing, not to mention judging, what we are doing with our drones abroad, we're confronted with another set of issues regarding our drones at home. . . .
The Fourth Amendment to our Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." -- a right primarily enforced by excluding evidence so obtained from criminal trials. The drafters of that protection didn't have the Internet, drones, or other innovative revolutions in technology in mind. . . .
We can't be said to have "a reasonable expectation of privacy" (Katz v. U.S., 1967) of those things we leave in plain view. But how should, how can, the law respond when everything we do is in the plain view of constantly hovering drones?
