Are we doomed to a national surveillance state?
A technician makes some adjustments to a Washington, DC, Metropolitan Police Department security camera array mounted on a lamp post.
BUZZARDS BAY, Mass. — In the week since the UK’s Guardian newspaper broke the news that the US National Security Agency is monitoring the phone and web records of tens of millions of Americans, sales of George Orwell’s "1984" have skyrocketed.
A sudden interest in this 1949 dystopian classic — coining the phrase “Big Brother is watching you” — may indicate Americans are not quite as sanguine about government snooping as recent polls suggest.
Edward Snowden, who leaked the extraordinary details of US government eavesdropping, has certainly gained some global free-information cred. The revelations about the NSA's far-reaching PRISM surveillance program have vexed some of America's closest allies.
The UK government, already uneasy about housing WikiLeaker Julian Assange, also appears concerned about becoming a haven for yet another fugitive uber-leaker. The British authorities have warned the world's airlines not to allow Snowden to fly there.
If nothing else, Snowden’s extraordinary decision to sacrifice his job, his home and perhaps even his freedom to bring the issue of government surveillance to the fore has ignited a heated debate over the acceptable limits of such monitoring.
Despite President Barack Obama’s spirited defense of the NSA program, many are calling for the program to be curtailed.
The American Civil Liberties Union (ACLU) filed suit this week against the Obama administration to stop the indiscriminate collection of call logs, and is asking that a judge order the compiled records destroyed.
The president has said that he welcomes the debate, and Sen. Dianne Feinstein, a Democrat of California, has offered to hold monthly hearings if necessary to put citizens’ concerns to rest.
The Senate Appropriations Committee promptly jumped in on Wednesday, summoning the NSA's director, Gen. Keith Alexander, to testify.
In his answers to senators’ questions, Alexander was at some pains to justify his agency’s conduct.
“I think that what we are doing to protect American citizens is the right thing,” he told the committee. “We are not trying to hide, we are trying to protect America. … I want the American people to know that we are being transparent here.”
But that will not reassure everyone. Like Director of National Intelligence James Clapper, who flatly denied to Congress that the NSA collected data on US citizens, Alexander’s record of truth telling has been called into question in the past.
In a hearing in March 2012 with the House Armed Services Committee, Alexander denied, emphatically and repeatedly, that the NSA was monitoring phone records or emails of American citizens.
“We’re not authorized to do that nor do we have the equipment in the United States to collect that kind of information,” he insisted.
On Thursday, Alexander also gave the Senate a rare classified briefing that was expected to include examples of terror plots the surveillance program helped thwart.
Authoritarian surveillance state?
As far back as 2008, Jack Balkin, a professor at Yale Law School, outlined the characteristics and the dangers of the Surveillance State. Much of his essay, “The Constitution in the National Surveillance State” now sounds eerily prescient.
“The question is not whether we will have a surveillance state in the years to come, but what sort of surveillance state we will have,” Balkin writes. “Will we have a government without sufficient controls over public and private surveillance, or will we have a government that protects individual dignity and conforms both public and private surveillance to the rule of law?”
From the yelps of protest heard from many quarters lately, there is an uncomfortable feeling that the Obama administration is tending toward the former.
Economist Paul Krugman said as much Sunday morning on ABC’s “This Week with George Stephanopoulos.” Citing Balkin’s distinction between democratic and authoritarian surveillance states, Krugman said, “we are kind of on the authoritarian side.”
Balkin argues that it's not just the war on terror that's responsible for today’s omnipresent spy capabilities; technology itself is driving the government toward ever-greater intrusion into the lives of its citizens.
“The war on terror may be the most familiar justification for the rise of the National Surveillance State, but it is hardly the sole or even the most important cause,” Balkin says. “Government’s increasing use of surveillance and data mining is a predictable result of accelerating developments in information technology.”
Once the capability is there, Balkin argues, the government will find itself under “tremendous pressure” to use it.
President vs. Congress: Who's responsible?
So what, if anything, can be done to rein in the government’s increasing appetite for people's private information?
It will, first and foremost, require cooperation throughout government — something that has been noticeably lacking of late.
In fact, the executive and legislative branches have been trading jabs over the issue for the past week.
Obama insists that Congress has been fully briefed on the government’s surveillance program, and has authorized it. This, he insists, makes it legal.
But members of Congress have refuted this claim.
Rep. Jim Sensenbrenner, R-Wis., in an article published in The Guardian on Sunday, blasted the president for trying to evade responsibility for the surveillance program.
“President Obama has tried to deflect criticism by claiming ‘every member of Congress has been briefed on this program.’ While some members of Congress were briefed — particularly those on the intelligence committees — most, including myself, were not,” Sensenbrenner wrote. “The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.”
What’s worse, say Senators Ron Wyden (D-Ore.) and Mark Udall (D-Colo.), the executive and the judiciary are changing the very meaning of what is legal.
“There is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows,” they wrote in a letter to the president.
All this makes it difficult to be upbeat about the possibility for significant control over the government when it comes to its ever-widening capabilities to spy on its own citizens.
William Binney, a former NSA official who claims to have designed the prototype of the program that allows the NSA to sweep up almost infinite amounts of information, told the New Yorker’s Jane Mayer in 2011 that he regretted his input.
“I should apologize to the American people,” he said. “It’s violated everyone’s rights. It can be used to eavesdrop on the whole world.”
Binney would agree with Krugman on the nature of today’s government.
In an interview with author James Bamford, published in Wired magazine last year, he sounded the alarm.
“We are this far from a turnkey totalitarian state,” he said.
William Martel, associate professor of international security studies at The Fletcher School at Tufts University in Massachusetts, is more of an optimist.
“I am persuaded that there is a way to balance our civil liberties with our security,” he said. “This should be built on several steps: It must begin to resonate within the executive branch, and will absolutely require the active involvement of the legislature.”
Martel concedes that he is willing to “cut the government a fair amount of slack given what Al Qaeda and other extremists want to do to us,” but does not want to grant carte blanche.
“I am uncomfortable with the argument that those who have nothing to hide have nothing to worry about,” he said. “I don’t like the fact that government agencies may be casting such a wide net.”
Still, he added, these problems can be overcome if people of good will cooperate.
“The majority of Americans want to be protected, but we don’t want to give up our civil liberties,” he said. “We can’t be perceived to be throwing away elements of the Constitution.”
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