by Sam Kleiner, Senior Editor for the National Constitution Center's Constitution Daily and a student at Yale Law School.
Long before Ralph Nader coined the term in his 1972 book Whistleblowing, American whistleblower law got started in the midst of the Civil War. With the concern that suppliers were defrauding the Union Army, Congress passed the False Claims Act in 1863. The law allowed private citizens to bring qui tam cases against companies that allowed them to recover damages if they could prove that the company was defrauding the government.
Edward Snowden’s revelations about the Foreign Intelligence Surveillance Court’s (FISC) secret rulings have heightened scrutiny on the court and the work it does. The court, which meets in the same building as the U.S. Court of Appeals for the D.C. Circuit, is unique among federal courts in that its judges are not appointed by the president and then confirmed by the Senate. Instead, the court is made up exclusively of sitting judges who are appointed by the Chief Justice of the United States for seven-year terms with no legislative or executive oversight. Professor Theodore Ruger at the University of Pennsylvania said that the way the court is set up, the Chief has unchecked authority to appoint people to the court who share his views.
Since disclosure of classified documents revealing the scope of United States’ surveillance programs there has been a collective shrug of the shoulders among mainstream or elite media. As noted here, the verdict from many in the mainstream media is that the surveillance programs revealed by Edward Snowden are a fair or necessary trade-off – we must give up a bit of privacy to ensure that the nation is safe from terrorists.
Indeed, much of the focus of broadcasters, such as NBC’s David Gregory, has centered on where Snowden is and whether The Guardian journalist-columnist Glenn Greenwald should be viewed as aiding and abetting Snowden. Recently during a “Meet the Press” segment, Gregory asked Greenwald why he shouldn’t be “charged with a crime.” Greenwald, who along with other Guardian staffers, has reported on the material disclosed by Snowden, was hardly rattled by the broadcaster’s preening. Greenwald later tweeted, “Who needs the government to try to criminalize journalism when you have David Gregory to do it?” (For an entertaining takedown of Gregory, see Frank Rich’s response to a question from New York magazine about Greenwald’s role in reporting on the two massive surveillance programs that collect and store telephone communications and Internet communications of Americans. For example, Rich asked, “Is David Gregory a journalist? As a thought experiment, name one piece of news he has broken, one beat he’s covered with distinction, and any memorable interviews he’s conducted that were not with John McCain, Lindsey Graham, Dick Durbin, or Chuck Schumer.”)
But outside the elite U.S. media, many others are not ready to let this one go, and not just because more information about the nation’s spying apparatus keeps coming. The Guardian recently published NSA documents that show widespread spying of the “European Union mission in New York and its embassy in Washington.” In fact the NSA documents reveal that 38 embassies and missions are being spied on by America’s ever-growing and unwieldy intelligence community. The disclosure is not going over well with some the country’s allies. Germany’s Chancellor Angela Merkel, for instance, said, “We are no longer in the cold war. If it is confirmed that diplomatic representatives of the European Union and individual European countries have been spied upon, we will clearly say that bugging friends is unacceptable.”
Capturing and storing massive amounts of information on Americans’ communications should also be unacceptable or least spark sharper, ongoing debate, regardless of how we learned about the massive surveillance schemes. Without those disclosures we’d likely still be in the dark about those programs. In March, Sen. Ron Wyden (D-Ore.) asked Director of National Intelligence James Clapper during a hearing whether the NSA was collecting “any data at all on millions or hundreds of millions of Americans?” As Salon’s David Sirota notes, Clapper responded, “no, sir.”
Recently, I sat down with Georgetown Law Professor David D. Cole, a constitutional law and national security expert. (See his wrap-up of the Supreme Court’s latest term for The Washington Post.) I asked him to respond to pundits who argue that the surveillance programs are not terribly troubling and whether he thought the Foreign Intelligence Surveillance Court is a strong enough check on the intelligence community’s voracious appetite for more information about Americans.
Cole (pictured) said he found the disclosures of the surveillance programs, “stunning and I think raise really serious questions both about our governance and about our privacy. They’re stunning; because I don’t think before The Guardian broke the story that anybody thought that the Patriot Act authorized the government to pick up phone data every time any American picks up the phone to call anywhere.”
Some pundits express shock that civil rights groups or civil liberties advocates should be stunned by the NSA programs and many argue that they are harmless infringements on privacy that are outweighed by the government’s interest in protecting national security.
Cole provides a counter.
“I think there is a great deal to be concerned about,” he said. “We’ve seen in the past that these kinds of tools while adopted in the name of fighting national security inevitably get used more broadly, and abused to target people who the administration finds to be inconvenient or a dissenter or an enemy as President Nixon labeled them. So Cointelpro [Counterintelligence Program], the FBI’s program was initially an anti-Communist program and ultimately involved spying on people in the civil rights movement, the anti-war movement, the women’s movements, and the environmental movements. We don’t want our government to be engaged in that kind of practice and the best way to ensure that it isn’t is to ensure that it has strict limits on its surveillance powers.”
Regarding the Foreign Intelligence Surveillance Court, which hears NSA surveillance requests in secret, Cole said it was a check, but that we should know more about it.
“I think the fact the court exists [FISA Court] is a check in-and-of-itself, even if it ultimately, in almost all instances says yes,” Cole said. “However, I think it’s far too secret. Certainty, ongoing operations; there’s a need for secrecy. But the interpretations that the Court has given to the statutes that we think are constraining the government – we ought to know what those interpretations are.”
While mainstream media outlets concentrate on the whereabouts of Snowden, bloggers, the ACLU and some members of Congress, such as Wyden, are calling for the government to provide more information about the NSA and its spying programs. At some point a few in the mainstream media might also catch on to what is important in this matter.
Are we over reacting when tossing around Orwellian to describe the federal government’s massive surveillance programs or denouncing President Obama as losing all credibility on this issue, as The New York Times Editorial Board has done?
We noted one of the massive spying programs yesterday regarding a FISA Court order granting the National Security Agency the power to collect telephone information from Verizon. The Guardian released the FISA Court order in its coverage. Later The Guardian and The Washington Post reported on a program called PRISM where the NSA and FBI are “tapping directly into central servers of nine leading Internet companies [like Google, Facebook and Apple], extracting audio and video chats, photographs, e-mails, documents and connection logs ….” The order to collect telephone data has apparently been made much easier to obtain because of the administration’s sweeping interpretation of a provision in the Patriot Act.
President Obama today dismissed criticism of the surveillance programs as hype. At a press conference this morning intended to focus on implementation of the Affordable Care Act he was confronted with questions about the two programs.
Obama first acknowledged he has a duty to protect the constitutional right to privacy and civil liberties, but quickly shifted into defending the massive surveillance programs.
“The programs discussed over the last couple of days in the press are secret in the sense that they are classified but they are not secret in the sense that when it comes to phone calls every member of Congress has been briefed on this program,” Obama said. “With respect to all these programs the relevant intelligence committees are fully briefed on these programs. These are programs that have been authorized by broad bipartisan majorities repeatedly since 2006. So I think it’s important to understand that your duly elected representatives have been consistently informed about exactly what we’re doing.”
He claimed that the “intelligence community” is not looking at content of telephone calls, but instead sifting “so-called metadata” for leads of people plotting to engage in terrorism. He then knocked coverage of the two surveillance programs as “hype.” He added that the program of collecting telephone data is overseen by Congress and the FISA Court, which was created by the Foreign Intelligence Surveillance Act of 1978 (FISA).
With respect to the Internet surveillance program, he said PRISM does not apply to U.S. citizens and that Congress is fully aware of the program and that the FISA Court “has to authorize it.” They are both programs, the president said, that have been approved by Congress and the FISA Court is overseeing them.
The Dish’s Andrew Sullivan writes, “I don’t find such data-mining for national security purposes to be that horrifying. If that’s the price we have to pay for deterring Jihadist attacks, then we should recognize there’s a trade-off. The problem is that we, the public, cannot judge the gravity of those threats and so cannot even weigh the necessity of giving up our privacy.”
Geoffrey R. Stone, a constitutional expert and distinguished law professor at the University of Chicago, in a piece for The Huffington Post says that “based on the facts that have been made public,” the government actions “are neither unconstitutional nor otherwise unlawful under existing law.” Stone, however, adds that he would “personally like to see the interpretation of the Constitution and the state of federal legislation changed in particular ways that might alter this conclusion ….”
Both Sullivan and Stone are touching upon the trade-offs that Obama also mentioned during his press conference today. In some instances national security will trump the interests of protecting privacy.
Others, like The New York Times Editorial Board believe the Obama administration has recklessly expanded the surveillance programs started under his predecessor and given more power to the nation’s unwieldy intelligence apparatus. “The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.”
The Hill broke a fascinating story last week: many major email providers are already requiring a warrant for the content of the communications they hold. What you say, this doesn’t sound fascinating at all? It really is—just bear with me.
For the last several months the Senate Judiciary Committee has been fighting over this precise issue: how to update the nearly three-decades-old Electronic Communications Privacy Act (ECPA). Chairman Patrick Leahy (D-Vt.) has long sought a standard where all communications and content must meet the warrant standard. That would mean information in Gmail accounts, Amazon cloud storage and text messages sent through Verizon would all have to meet the same standards—a warrant based on probable cause—that police currently need to search a home. But when Leahy brought the issue before the full committee last Congress, the response from law enforcement was that the proposal would have a dire impact on police practices.