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David Bromwich Headshot

Total Protection Government

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The security policy of the U.S. government from Cheney to Obama has passed from secret surveillance of communications abroad to secret surveillance of all communications at home. In what stages did it happen? Some day the history will be written; for now, it is instructive to rehearse the facts. Five years ago, Barack Obama was a candidate for president who pledged to filibuster a congressional bill awarding amnesty to telecoms that illegally gave information on American customers to the government. When Obama backed down from that promise, he pledged, if elected, to have his attorney general investigate the surveillance of Americans and bring the NSA and the justice department back within the limits of the fourth amendment. As it turned out, he made Eric Holder his attorney general, and the security policy of the Obama administration came to be defined, most of all, by its harsh prosecution of whistleblowers who brought to light illegal searches and seizures by the government.

Yesterday in the Guardian, Glenn Greenwald offered a startling glimpse of the program of systemic surveillance Dick Cheney innovated and Obama has refined. A FISA court order, obtained by Greenwald and linked in the article, compels the Verizon Business Network to furnish for the NSA "on an ongoing daily basis for the duration of this order. . .all call detail records. . .created for Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls." This command is sweeping. It makes Verizon hand over to the FBI all "From" and "To" information about all phone calls made by all customers using Verizon. The order is dated April 25, 2013. It expires on July 19, 2013. It is classified "Top Secret," and due to be declassified on 12 April 2038. It is one of the approximately seven million documents which the Obama administration hides from most Americans every year.

This revelation is only the latest indication of the modus operandi of the Holder justice department. If anything has slowed the public challenge to the conduct of the attorney general, it is that his infractions against the first amendment bruised different parties in such diverse ways. The Right has taken most seriously the language about "conspiracy" used to obtain secret warrants against the Fox reporter James Rosen; while the liberal side has been struck by the unraveling of the post-Watergate restraint on vendettas against investigative journalism. But the character of the FISA court order shows how far the abuses have reached beyond party. William Binney quit the NSA in 2001, in disgust at its policy of encroachment in the name of protection. Today on Democracy Now, Binney gave a precise idea of the extent of the data that Verizon is commanded to surrender to the Holder justice department:

NSA has been doing all this stuff all along, and it's been all the companies, not just one. . . .If Verizon got [a FISA order], so did everybody else, which means that, you know, they're just continuing the collection of this kind of information on all U.S. citizens. That's one of the main reasons they couldn't tell Senator Wyden. . .how many U.S. citizens are in the NSA databases. . . .If you collapse it down to all uniques, it's a little over 280 million U.S. citizens are in there, each in there several hundred to several thousand times.

Thomas Drake, whom the justice department harassed and prosecuted for whistleblowing on the massive "waste and abuse" at the NSA, made a related observation in the same extended pair of interviews. With an indiscriminate generality of focus, such as this order demonstrates to be the rule in the Obama administration, "there's no need now to call this the Foreign Intelligence Surveillance Court. Let's just call it the surveillance court. It's no longer about foreign intelligence."

A generalized approach to prosecution emanates from the White House itself. Death warrants have been issued for "signature strikes" by drones on human targets whose names are unknown, and against whom no specific charges are stated. The justification? Their pattern of observed behavior is a "continuing and imminent threat" or a "continuing, imminent" threat. Well, a continuing imminent threat is a good deal like a chronic acute illness. It gives an automatic warrant for a doctor to prescribe x-rays and antibiotics every day for a lifetime. But our doctors, in this case, live in the sky and you cannot get a lawyer to sue them for malpractice. With the presidential jargon that christens assassination as "delivering justice" to terrorists and speaks of unknown victims as a continuing imminent threat, this administration has been engaged in a purposeful corruption of language. But that corruption is necessary, since, without it, we might not accept the change of morale in which we are being invited gradually to acquiesce.

And what of your phone calls, reader? And what of mine? In the connection between the dates of certain calls and certain subsequent events, may it not be that a "signature" or pattern worthy of prosecution will be discoverable at some future date? Medical records also will be subject to the same interested construal if a government agency large enough and operating under secret orders can lay its hands on them. There is, in fact, a deep correspondence, which we tend to ignore, between the protection-state at home and the war-state the government operates abroad. Still, in the initial response to Greenwald's article and the court order, Republicans have been characteristically worried about the leak and not the contents of the leak; most Democrats have been silent; and a bipartisan inertia has appeared in comments by senators Feinstein, Graham, and Chambliss: they knew all along what was happening, they say, and Americans should be grateful for the acts of a state that has the goodness to protect us and the discretion to do it in secret. But there are fresh warnings, now, from senators Ron Wyden and Mark Udall, and from others too: Jeff Merkley and Barbara Mikulski and Dick Durbin, and a Republican, Mark Kirk, and an independent, Bernie Sanders. The warnings all say: the more we give to the government on the pretext of sheer protection, the more it will take and use as it pleases.

The press has scarcely begun its pursuit of the issues around the AP and James Rosen seizures. There is work to be done -- but now, with the Guardian disclosure, reporters may claim to question the government as direct and not as mediating advocates of the public. The president who has heard fewer unrehearsed questions from the press than any other president in modern times should be made to answer for his experiments against the first and fourth amendments. Let reporters ask what data he supposes government is not allowed to collect. For it has come to seem on the face of things that there is nothing the Obama administration will not claim a right to know about us for our own good.

Even now, government aides are most concerned about "the magnitude of the leak." The question that troubles them is not, How did we come to this? but rather, Shall we prosecute the whistleblower? The pattern is so galling and tedious, and its harms so invisible to all but a few, that we may be tempted to relax and wait for the next election. But remember again the language of the court order. On an ongoing daily basis. All call detail records. Including local telephone calls. The next president will inherit this. No names, no records of words (not yet), no inculpating or exculpating evidence (just "signatures"), but still: these are outlines of the communicative behavior of upward of a million persons, with similarly compelling orders out to the other telecoms. The aim is to capture by index the whole of the U.S. population. The amazing and routine FISA order is a blind command for the opening of a thousand eyes.

The plainest rebuke to such procedures comes from the language of the fourth amendment itself.

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.

By what right are the addressed envelopes of the spoken communications of 280 million citizens plucked from the air by government and filed away? Supported by whose oath and what affirmation? There is a simple force to the words of the fourth amendment after all. It says: we do not live by secret laws, and we will not abide by general warrants. And to the comfort offered by senators Chambliss, Graham, and Feinstein, who ask us to sleep well and sleep long, there is a simple reply. In what country do they think they are living, and under what constitution?