Privacy SOS

Intel officials’ arrogance and the limits of democracy in a total surveillance state

There’s a lot to digest in Barton Gellman’s interview with Edward Snowden, published a few days before Christmas in 2013. Snowden told the Washington Post reporter that he feels as if his work is done. The global public now has greater access than ever before to information about the depth and breadth of the US government’s surveillance apparatus, he said, and it’s now up to the people to decide how to act on that information.

That snippet of the piece — screaming from its headline — got the most attention. But Gellman also reports that, contrary to his public statements, at least one top level official isn’t very concerned about how the Snowden leaks may affect US government surveillance programs.

In a lesser-noticed but explosively significant part of the report, Gellman describes how James Clapper’s public warnings about the leaks’ damage to ‘National Security’ dovetail sharply from his private assessments:

Clapper has said repeatedly in public that the leaks did great damage, but in private he has taken a more nuanced stance. A review of early damage assessments in previous espionage cases, he said in one closed-door briefing this fall, found that dire forecasts of harm were seldom borne out.

“People must communicate,” he said, according to one participant who described the confidential meeting on the condition of anonymity. “They will make mistakes, and we will exploit them.”

The Director of National Intelligence doesn’t seem very concerned about the effect the Snowden leaks will have on the US government’s ability to collect whatever it wants, whenever it wants. That comment should shock the conscience of the nation because it could only mean one (or both) of two things: either Clapper is confident that NSA and FBI surveillance powers will emerge from the Snowden affair completely unscathed, or he is sure that the secretive intelligence agencies will continue to collect whatever they want to collect — no matter what any other branch of government has to say about it.

Both of these scenarios are possible, and equally disturbing.

It may be that the intelligence establishment succeeds in barring courts from ruling on the merits of its surveillance programs, and in killing all of the meaningful reform legislation currently before congress. But even if it loses in the courts or the legislature, it may simply continue doing whatever it wants in secret. There's ample reason to believe this is possible; the NSA has violated the law time and again over its troubled history. Even when congress or courts explicitly tell the agency it cannot do something, it has done it anyway.

And in a congressional hearing held just a few weeks ago, we got a hint that this blatant disregard for decisions made by other branches of government is likely to continue.

At a mid-December Senate Judiciary hearing on NSA reform proposals, Senator Chuck Grassley asked Deputy Attorney General James Cole if the passage of the USA Freedom Act would put an end to the NSA/FBI phone surveillance program, which the government says is authorized under section 215 of the USA Patriot Act. One of the Freedom Act’s main purposes is to kill this bulk records program.

Cole’s convoluted response to this straightforward question should alarm us all. He told the senator that he couldn’t be sure if the law would have that effect, and said that it would likely be up to courts to decide that question.

"Senator, you’ve asked me a legal question, and I’m gonna have to give you a kind of lawyer’s answer. If the USA Freedom Act becomes law, it’s going to depend on how the court interprets any number of the provisions that are in it, and any number of the additional requirements that are contained in it…On the bulk data, I think it’s going to be a question of the court’s interpretation. Right now the interpretation of the word ‘relevant’ is a broad interpretation. Adding ‘pertinent’ to a foreign agent, or somebody in contact with the foreign agent, could be another way of talking about relevance as it is right now. We’d have to see how broadly the court interprets that or how narrowly."

In other words, the second highest domestic law enforcement official in the United States told congress that passing a law aimed at explicitly preventing bulk phone records collection might not actually bar the government from collecting those records. The implication was that the government would continue to collect this information until the Supreme Court told it to stop — the legislature’s will be damned.

Clapper and Cole’s comments illuminate what lies at the heart of many of our surveillance problems today: intelligence official arrogance, and an attitude that says spies are above and beyond the rule of law.

Snowden’s work might be done, but ours has only just begun.

© 2021 ACLU of Massachusetts.