“Those who sacrifice liberty for security deserve neither.”
– Benjamin Franklin
As Franklin discerned over 200 years ago, issues of freedom and security are deeply intertwined. Liberty and security exist in a state of tension; liberty demands that a free people have privacy and the freedom to speak plainly, on any topic including the criticism of authority and even to call for revolution. Security, on the other hand, demands that the authority of the state (king, emperor, the government, etc.) have the mandate to monitor and control dissent and to control dissenters in order to protect the citizens of the state and the state itself, even if to do so means the authorities must intervene to arrest and incarcerate “subversives.”
The tension between liberty and security in the United States is very long-standing, from the Alien and Sedition Acts of 1798 (which restricted the rights of foreign aliens and attempted to curtail the speech of dissident American citizens, Library of Congress
) to the Smith Act of 1940 (criminalizing the advocacy of the overthrow of the US government, Boston College
), and the McCarran-Wood Act of 1950 (which illegalized communism and forced the finger-printing of suspected subversives, Pennsylvania University
). Today’s USA PATRIOT Act (“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” 2001, here presented on the site of the Electronic Privacy Information Center
) is only yet another law in the old tradition of seeking a balance between security and freedom.
The key term here is “law.” Each of these are acts, passed by the Legislature of the United States and duly signed into law by the President, as the Constitution of the United States provides. Each are, therefore, subject to review by the courts, and may be interpreted under the Constitution. Even if we disagree with the nature of such laws, we can remain assured that the rule of law has been preserved. No matter how odious such laws may seem to freedom, the bulwark of a constitution and a (presumably) independent Judiciary can permit us faith that we exist under a system of lawfulness, and that if we, the people, disagree we can elect new legislators who will repeal the laws to which we object.
What are we to make of it, then, when by fiat of an executive order, the President of the United States claims the authority to violate the law? This is what has seemed to have occurred when, sometime in 2002, President Bush unilaterally ordered the National Security Agency (NSA) to begin spying on US citizens within the borders of the United States. (Time Magazine
, January 9, 2006 edition) Mr. Bush’s action seems to be in direct violation of the 1978 Foreign Intelligence Surveillance Act (FISA), which derived from a previous scandal involving the NSA and other intelligence and security organs of the United States.
US Senator Frank Church and others in the House and Senate convened an investigation, the Church Committee, which heard hearings in the mid-70s, finally concluding that President Richard M. Nixon had illegally used the Federal Bureau of Investigation, the Central Intelligence Agency, the Internal Revenue Service, and the NSA to spy on his political enemies and to provide him with dossiers of them which could (and would be) used to discredit or harass them. The Church Committee published its report in 1976 (the Church report
, here presented on the site of Third World Traveler). The revelations of the Church Committee report led directly to Congress passing FISA, which subjected all the intelligence organs of the United States to review by a Top Secret court, the Federal Intelligence Surveillance Court (FISC), which would meet in camera
, in a secure room at the offices of the Department of Justice, and hear arguments for issuing warrants for the surveillance of US citizens. Only by way of the FISC could the intelligence agencies of the government legally be able to spy on citizens within the borders of the United States (Cornell University
President Bush and his Attorney General, Alberto Gonzales, argue otherwise. They say that the Joint Resolution of the United States Senate and the United States House of Representatives passed shortly after the September 11, 2001 attacks in New York and Washington, D.C. authorized the President’s secret order to begin spying on United States citizens. Specifically, they cite Section 2(a) of the resolution, which reads “IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” (Library of Congress
) Bush and Gonzales construe this to mean that the President has all authority, in the prevention of future acts of terrorism, to disregard even statutes such as FISA at his own discretion, though this is clearly not what Congress intended. Note that in Section 3 of the resolution that they specifically predicate further actions by the President to reference to the War Powers Act. Congress clearly intended the President to be bound by law.
Nevertheless, sometime early in 2002, President Bush signed an executive order (still classified: the exact date remains unknown) authorizing the NSA to begin surveillance of US citizens inside the United States without a warrant from the FISC. This was an extremely radical act, given the powers and potential of the NSA, which are not widely understood by the public, and largely unknown even to experts. What is known of the NSA is sufficiently frightening to contemplate.
Officially chartered in 1951, the National Security Agency (NSA) is tasked with collecting all of the electronic intelligence (ELINT) and signals intelligence (SIGINT) for the United States and its allies. As time and technology have progressed ELINT and SIGINT have come to mean not only radar and radio emissions by enemy ships and troop bodies or radio communications and codes transmitted by an enemy headquarters, but also all telephone, telegram, facsimile, e-mail, and Internet communications (The National Security Agency Declassified
, George Washington University). It is the avowed purpose of the NSA to monitor all such communications all of the time.
Toward this end, and to coordinate all of the ELINT and SIGINT of the English-speaking world (the US, the UK, Canada, Australia, and New Zealand), perhaps as early as 1947, but certainly since 1964, the NSA established Project ECHELON along with its allies. At first with only listening posts on land and at sea, ECHELON gradually expanded to include “taps” placed on undersea cables by ultra-secret submarines, even in territorial waters of the Soviet Union and Warsaw Pact nations, “bugs” placed in telephone switching stations, and, ultimately, a network of global “listening” satellites that are capable of monitoring virtually every electronic communication anywhere in the world. (ECHELON
, the Federation of American Scientists)
ECHELON is widely regarded in the press and public as an unworkable project, since the billions of information transactions sent everyday would seem simply impossible to read or analyze. However, the rise of information processing technology has now made ECHELON an entirely viable program. The NSA is known to possess the world’s largest bank of supercomputers, consisting of a combination of at least 11 Cray XMP, Cray 2, and Thinking Machine Corporation Connection Machines, thought to be wired in parallel to work in tandem to achieve a processing speed well in excess of the terabyte per second range. And nobody really knows what the NSA has actually accomplished: it’s all classified very much above “Top Secret.” All that is really known is that in the 1990s the NSA hired most of the scientists and engineers from the defunct Cray and Thinking Machine companies to build secret supercomputers exclusively for the US government.(James Bamford
writing for the New York Times, here from the Salt Lake Tribune; see also books by James Bamford, The Puzzle Palace
(Houghton-Mifflin, 1982) and James Bamford Body of Secrets
Given such formidable information processing power, it is completely possible for ECHELON to not only monitor but to analyze every electronic communication and then sort, prioritize, and present it to analyst agents. This is done through a complex array of keywords, language recognition and interpretation software, and the capabilities of “artificial intelligence” (AI). In essence, the NSA can spy on everybody, anywhere, all the time.
The one thing the NSA has never been allowed to do is to deploy that very intimidating capability against US citizens within the borders of the United States. Called “US persons,” whenever such subjects turned-up on foreign surveillance intercepts, the NSA was obliged to conceal the identity of such persons and to immediately seek counsel and to present the intercept to the FISC. President Bush’s executive order of 2002 relieved the NSA of any such obligation and further empowered the Agency to actively begin monitoring “US persons,” at home and abroad alike.
For instance, we should presume that the NSA has already read this blog post, and that it has already been reviewed by an analyst agent. Soon they will know that you have read this post! Does this make you feel uncomfortable at all?
President Bush’s order raises serious troubles of statute (FISA) and the Constitution itself (Amendment 4, as interpreted in multiple decisions by the Supreme Court of the United States), and it strikes at the very heart of what Americans have always believed to be their privacy and their liberties.
Has the President actually authorized a purposeful and systematic violation of the law and even the very Constitution? And if he has, can or will he be impeached for such a thing? These are serious questions we must now contemplate, sadly enough. If even the law or the very Constitution is beneath the power of the Presidency, then we truly are living in an age when a new dictator might well emerge. Much more serious than the perjuries of Bill Clinton, the actions of President George W. Bush bring concerns about the rule of law, no matter how much you might trust Mr. Bush himself to “do the right thing.” The next president may not be as benevolent as you may think President Bush is, and without the rule of law, we become a nation governed by the whims of only a few human beings.
Is this the sort of nation and world we want? Do we really wish to live in an age of a supreme executive who can authorize anything, anytime, regardless of any law in the name of security? Or shall we, instead, choose to live in a world where we live in freedom, and deserve that liberty?
January 1, 2006