Surveillance, National Security And The Constitution

Surveillance, the Constitution and national security. What are we now willing to live with?

Edward Snowden — the man who leaked word of massive U.S. government surveillance programs is holed up in Hong Kong Monday. And holed up with him — Glenn Greenwald, the blogger/journalist who took the leak, broke the story.

Glenn Greenwald is with us from Hong Kong this hour. At the heart of the firestorm swirling right now around the leak and the news — that the National Security Agency has gone much further than we knew in sweeping up data from around the planet. Raising core questions around surveillance, security, civil liberties, the Constitution.

This hour On Point: Glenn Greenwald, national security and the surveillance state.
-- Tom Ashbrook

Glenn Greenwald, lawyer, journalist, blogger and author. He reported on NSA surveillance of phone records and Internet activity for The Guardian. (Watch his interview with Edward Snowden.) He’s on the board of directors of the Freedom of the Press Foundation, along with Daniel Ellsberg, John Perry Barlow and John Cusack. (@ggreenwald)

Steven Bucci, director of foreign policy studies at the Heritage Foundation, and an expert on cyber security there. Formerly deputy director of the IBM Institute for Advanced Security. He was deputy assistant secretary of defense for homeland defense under Donald Rumsfeld, and held several positions at the Pentagon during the Bush years. (@sbucci)

"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."

Greenwald on metadata and what could be known about you:

It’s hard to imagine how you could have more extremist surveillance than a program that targets every single American, regardless of wrongdoing.  And that program in particular that we reported on isn't one where the government goes in and listens to phone conversations. It’s one where the gov’t collects the metadata — so-called metadata — about with whom you communicate and how long.  And there are telecommunications and surveillance experts who have said — both in the New York Times and The New Yorker this week — that metadata is even more invasive than being able to listen to your calls. It enables people to know who your network is of friends and associates, with whom they are then communicating, where you are when you speak, it can let people know are you gay or straight, do you have an alcohol problem, where is it that you go, how long do you stay there, with whom do you communicate and for how long.  So the fact that the government is massively collecting indiscriminately this huge database of our communication behavior is something that  President Obama now can say seems modest, but back in 2006, when the Bush administration got caught doing it, both he and Joe Biden were indignant that collecting this kind of indiscriminate data about innocent Americans was far, far over the line. I think they were right then, and I think that's still the case.

Greenwald on terrorists, secrecy and accountability:

I defy anybody to look at any of the stories that we published over the last week and explain how national security could possibly be harmed.  The terrorists — the so-called terrorists — have known forever that the U.S. government wants to read their emails and listen in on their telephone conversations. The terrorists didn't need us and our articles for them to know that. Any terrorist that doesn't know the U.S. government is trying to surveil their communications is a terrorist can't even write his own name out, let alone detonate a bomb effectively inside the United States. What has been damaged is not national security.  What has been damaged by these revelations is the reputations and credibility of the people in power who are building this massive spying apparatus completely in the dark and with no accountability.  And that, I think, is so crucial to understand — what these top secret designations are designed to do is not keep information from the terrorists or from our adversaries, it’s to keep information from the American people about what their own government is doing to them.

Bucci on intelligence clearance:

If someone doesn't have the clearance, then no, they don't get the information. But that's why all of the intelligence committee members have those clearances. Those staffs have those clearances and can get it. Now, the problem is you have is like Mr. Snowden who had a clearance, like Bradley Manning who had a clearance. So they had access to this stuff, and then they decide to violate that trust and the oaths that they've taken. Regardless of their motivation — to be honest with you, they've broken federal law. So it's not somebody potentially arresting them is not retribution; it's called enforcing the law.

Greenwald on the U.S. government's abuse of power:

The American government — I know it's shocking, but even Americans in power what they do when they have surveillance power that is not sufficiently checked, they abuse it systematically. That's what happened not in East Germany or other bad, distant countries, but right here in the United States of America because human beings are human beings, and that is human nature. Our entire country is based on a mistrust of political power that is exercised without the necessary checks on making sure that power is not abused. Secrecy is anti-thesis of constraint and check and limitation. Secrecy is what breeds abuse of power by the very nature of what it means to be human.

Bucci on actual abuse vs. the possibility of abuse:

I spent 28 years in the army. I had the power because I had a weapon in my hand, and I could have gone out and killed anybody I wanted to in the same way Mr. Snowden said I could have surevilled anyone I wanted to. Does that mean you shouldn't give weapons to the military? You shouldn't give weapons to law enforcement? Because there's a possibility that an individual could take it upon themselves to abuse that power? Or even a couple of individuals could get together and abuse that power? I think you have to, at some point, have some faith in those multiple layers of oversight. I tend to have that faith. Until there's evidence of a specific, unlawful abuse, at which time you take action against the people involved. In this case, when you have all three parts of the government in this, that's about as good as you can get in the oversight realm. And since we all agree there is an honest to God threat out there from terrorism, you can't just sit back and say, well, because it might be abused at some point, then we're not going to use that ability.

Greenwald on constitutionality and the courts:

The ACLU and other organizations have been trying for years now to go to court and to obtain an adjudication as to whether the spying system is in fact constitutional. And every time they've gone to court, the government has not gone into court and defended the constitutionality of what they’re doing. Instead the government goes into court and they raise all sorts of reasons why the court shouldn't even decide that question — because it’s too secret, because nobody can say for sure that they're actually being eavesdropped on and therefore nobody has standing to sue and obtain an adjudication.  And as a result, the question of constitutionality, which all sorts of law professors and scholars and surveillance experts have raised serious doubts about, has never even been heard in a court because the government doesn't let it.

Greenwald on the lack of a debate about surveillance:

Everybody loves to say, "We should have a healthy debate about this." President Obama said, "I welcome the debate." The problem, though, is that there hasn't ever been a debate about these programs. And because it's all shrouded in top secrecy and the government constantly either threatens to prosecute or actually prosecutes anyone who talks about it, there never can be a debate. So what we have is this completely hypocritical contradiction, which is everybody goes around saying, "Of course we should have a debate about our surveillance policies. We shouldn't just let the government do it and have us not know about it and not be able to debate it." And yet, at the same time, when somebody comes forward — like Mr. Snowden — and courageously does the only thing there is to do to make us know about it, to let us debate it, they start calling for their heads. "He's a traitor. Put him in prison." So it is impossible to have a debate about any of these issues, precisely because they're being conducted completely in the dark.

Bucci's evaluation of Obama's handling of the situation:

I do sleep well at night because I think our government has made an effort. And, believe me, I'm not big fan of the Obama administration, as you might guess, being here at Heritage. And I think there has been other egregious violations. But in the case of this particular set of programs, they have bent over backwards to try and provide that oversight, to not take it to extremes, but to balance our security and our privacy.

The Guardian: NSA Whistleblower Edward Snowden [VIDEO]

The Guardian: Boundless Informant: The NSA's Secret Tool To Track Global Surveillance Data -- "The National Security Agency has developed a powerful tool for recording and analysing where its intelligence comes from, raising questions about its repeated assurances to Congress that it cannot keep track of all the surveillance it performs on American communications. The Guardian has acquired top-secret documents about the NSA datamining tool, called Boundless Informant, that details and even maps by country the voluminous amount of information it collects from computer and telephone networks."

USA Today: Parts Of NSA's PRISM Program Declassified -- "The National Security Agency's classified PRISM program is an internal government computer system used to manage foreign intelligence collected from Internet and other electronic service providers, Director of National Intelligence James Clapper said in a statement Saturday. The disclosure Saturday marks the most extensive explanation the government has offered of what the program is, how it works and what it is authorized to collect."

Associated Press: NSA: The Finder And Keeper Of Countless U.S. Secrets -- "An email, a telephone call or even the murmur of a conversation captured by the vibration of a window — they're all part of the data that can be swept up by the sophisticated machinery of the National Security Agency. Its job is to use the world's most cutting edge supercomputers and arguably the largest database storage sites to crunch and sift through immense amounts of data. The information analyzed might be stolen from a foreign official's laptop by a CIA officer overseas, intercepted by a Navy spy plane flying off the Chinese coast, or, as Americans found out this past week, gathered from U.S. phone records."