Presidential hopeful Rand Paul has been making noise about the NSA surveillance program for several years, but he took his criticism to the next level with a marathon filibuster on the Senate floor Wednesday night that lasted nearly 10-and-a-half hours. "There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer," Paul warned. "That time is now."
Paul has called for NSA mass surveillance techniques to be overhauled to better protect innocent US citizens and has refused to support any legislative efforts that fall short of such reform. The highly controversial and illegal collection of phone metadata has been a point of contention between pro-NSA bureaucrats and NSA-reformists on both sides of the aisle. Three key provisions of the Patriot Act are set to expire on June 1. Majority Leader of the Senate Mitch McConnell supports extending three key provisions of the Patriot Act, but the action was blocked by the Senate. The Senate is set to meet on May 31, hours before three key provisions expire. The alignments forming between party lines are sure to be interesting.
But all of this political posturing has me wondering: Aside of scoring presidential hopefuls political points ahead of the 2016 election, will the NSA debate actually change anything? Better yet, will the Government begin following the law as written? I have serious doubts.
The NSA Dragnet Practices Ruled Illegal
Pro-NSA bureaucrats were quick to point out, post-Snowden, that the NSA was not violating any laws with its surveillance practices. However, US District Court Judge Richard Leon ruled that the NSA surveillance practices were "likely unconstitutional" and "almost Orwellian." Likewise, the Privacy and Civil Liberties Oversight board also deemed the NSA practices illegal and unproductive.
Does the USA Freedom Act Have Promise?
The House of Representatives overwhelmingly passed the USA Freedom Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act), which is being touted as the necessary reform to end the bulk data collection of US citizens. The bill would end bulk collection of metadata, prevent government overreach by limiting how data is collected, change national security letter gag orders, and reform the FISA court.
If this piece of legislation is signed into law, vindicates Edward Snowden, right? Sure, but I am actually not convinced that it would change any NSA practices. The bill would change the law but when has the NSA ever been concerned with following the law? The NSA has been violating written laws for over 10 years with its programs and has defended them at all costs. And the only reason NSA reform is even being considered is because Snowden leaked classified documents that exposed the NSA spying programs in detail. Other whistleblowers who could not produce hard evidence were ignored.
The Whistle Has Been Blown Before
Former NSA Analyst Edward Snowden blew the whistle on the illegal NSA practices almost two years ago. The United States Government was incensed beyond belief and immediately tried to get its hands on Snowden, who now lives in Russia. Snowden rocked the political world and continues to be in the limelight as journalists continue to publish documents from the treasure trove of top-secret documents he took from the NSA. I am sure just about everyone with an internet connection has heard of Edward Snowden, but what about the NSA whistleblowers that came before him?
William Edward Binney
William Binney once represented the quintessential, dedicated government employee. Considered one of the greatest NSA analysts ever, he worked for over 30 years dedicating his life to developing technical abilities behind NSA intelligence efforts. Binney has expertise in mathematics, knowledge management, traffic analysis, systems analysis, and intelligence analysis and was the architect behind many complex NSA intelligence systems. But, Binney abruptly resigned from the NSA on October 31, 2001 following Washington's newfound obsession with mass surveillance following 9/11.
Binney has since testified that the NSA practices are in direct violation of the US Constitution. Jaded by the direction the NSA took after 9/11, Binney has expressed grave concerns over the NSA practices has even stated that the "ultimate goal of the NSA is total population control.". One of Binney's biggest contentions with the NSA surveillance practices is that they collect data on everyone, not just surveillance targets, "and it's said to be about terrorism but inside the US it has stopped zero attacks." Binney did not take any hard data from the NSA upon leaving — something he expresses a twinge of regret over. And for what it is worth, Binney has stated: "I call people who are covering up NSA crimes traitors."
Thomas Andrews Drake
Thomas Drake was a senior executive at the NSA until he resigned in 2008. Following 9/11, Drake testified about the failures of the NSA, notably the Trailblazer program which cost taxpayers over a million dollars and was eventually deemed a failure by the NSA Inspector General. Drake was especially concerned with the programs violation of the fourth amendment and actually voiced his concerns through the NSA legal channels to no avail. The program was eventually adopted in 2000 as Michael Hayden assumed his role as the director over the NSA. Drake also took his complaints and concerns to the NSA Inspector General, the Defense Department Inspector General (DoD IG), and the congressional intelligence committees in the House and Senate. In 2004, the DoD IG completed a report into the allegations and agreed with much of what Drake, Binney and Dianne Roark (staffer for Republicans on House Intelligence Committee) claimed were violations of the 4th amendment, but actually did little to curb actual NSA practices.
Unhappy with the results of his efforts, Drake decided to go public with information about the NSA. He firmly believed the NSA was committing serious crimes against US citizens and nothing was going to change unless the NSA felt some external pressure. Drake leaked unclassified information to journalist Siobhan Gorman of The Baltimore Sun in November 2005. Drake was very careful to avoid leaking any sensitive or classified information, but the FBI eventually raided his home and he was charged with the Espionage Act by the Obama Administration and indicted in April 2010. He faced 35 years in prison, but all charges were dropped on the eve of the beginning of the trial in exchange for guilty plea for misusing the agency's computer system. He received one year of probation and community service. The government reportedly dropped the charges after the judge ruled that they would need to share classified information for Drake to properly defend himself against the charges. Obviously, the Government did not want to share such information.
Jane Mayer later published an article in The New Yorker in 2011 about Drake's concerns with the NSA. The prosecution tried to block jurors from reading this article as it exposed several issues at the NSA.
Drake now believes the only way to effectively deal with the problems at the NSA is to dismantle the entire organization and rebuild it from the ground up. He currently advocates for NSA reform and has collaborated with Binney to testify about the NSA spying scandal post-Snowden revelations.
J. Kirk Wiebe and Ed Loomis
J. Kirk Wiebe, a former NSA senior analyst, helped develop NSA project ThinThread, which he believes could have even prevented the 9/11 terrorist attacks. Ed Loomis worked as an NSA cryptologist until 2001, when he retired. Like Binney and Drake, Wiebe and Loomis blew the whistle over the Trailblazer program. They also pursued internal channels with Binney to voice concerns about the constitutional violations of the controversial program and advocated to use the far-less intrusive ThinThread program. Wiebe and Loomis also went public with his concerns after retiring from the NSA in October 2001. Both Wiebe and Loomis were targets of a DOJ investigation following the public leaks.
Misinformation on NSA Debate
In a recent Reddit Q/A, Edward Snowden provided talking points to his audience about correcting misinformation about NSA practices:
- Supporters of mass surveillance say it keeps us safe. The problem is that that's an allegation, not a fact, and there's no evidence at all to support the claim. In fact, a White House review with unrestricted access to classified information found that not only is mass surveillance illegal, it has never made a concrete difference in even one terrorism investigation.
- Some claim the Senate should keep Section 215 of the Patriot Act (which will be voted on in two days) because we need "more time for debate," but even in the US, the public has already decided: 60% oppose reauthorization. This unconstitutional mass surveillance program was revealed in June 2013 and has been struck down by courts twice since then. If two years and two courts aren't enough to satisfy them, what is?
- A few try to say that Section 215 is legal. It's not. Help them understand.
- The bottom line is we need people everywhere — in the US, outside the US, and especially within their own communities — to push back and challenge anybody defending these programs. More than anything, we need to ordinary people to make it clear that a vote in favor of the extension or reauthorization of mass surveillance authorities is a vote in favor of a program that is illegal, ineffective, and illiberal.
Corruption Revels in Secrecy
Edward Snowden recently praised the filibuster efforts of Sen. Rand Paul but stopped short of claiming the USA Freedom Act would effect necessary change to the illegal NSA spying programs (Reddit Q/A):
"There are always reasons to be concerned that regardless of the laws passed, some agencies in government (FBI, NSA, CIA, and DEA, for example, have flouted laws in the past) will misconstrue the intent of Congress in passing limiting laws — or simply disregard them totally. For example, the DOJ's internal watchdog, the Office of the Inspector General (OIG) released a report claiming, among other abuses, that it could simply refuse to tell government oversight bodies what exactly it was doing, so the legality or illegality of their operations simply couldn't be questioned at all.
However, that's no excuse for the public or Congress to turn a blind eye to unlawful or immoral operations — and the kind of mass surveillance happening under Section 215 of the Patriot Act right now is very much unlawful: the Courts ruled just two weeks ago that not only are these activities illegal, but they have been since the day the programs began."
Snowden is absolutely correct in expressing doubts about government agencies refusing to follow the law. Disregarding constitutional rights is exactly how the NSA got to this point. And this is not first time such agencies have been caught wantonly violating US laws. But, the Snowden documents created a lot of damage and the NSA and other government agencies would probably like to avoid such situations in the future. The future of NSA surveillance techniques may lie in the hands of the technology companies so many adore such as Apple and Google. The Intercept recently published a report on a top-secret spy-summit between the aforementioned tech giants and leaders from the US, UK, Europe, Australia, and Canada.
The NSA will undoubtedly be working complicity with technology companies and other world governments to continue its surveillance practices. If you think the NSA is actually going to wind down its phone metadata programs, you're patently naive. Do you really think the NSA is all of sudden going to start obeying the law? It has not in the past and it will not in the future. Its just not in their DNA to obey the law.