Saturday, March 15

How Ed Snowden and his, er, agents are revitalizing American institutions on the front line of guarding the U.S. republic against becoming a tyranny

"What was Edward Snowden supposed to do, call up the Senate Intelligence Committee and say, 'Hi, I'm a 29-year-old contractor who works in Hawaii, and I'm calling to report to you about the programs that you have approved in secret?' "

It was the NSA Inspector General who referred to them last month as "agents."  These being the fast-growing number of journalists, newspaper editors, attorneys, legislators and IT professionals who've joined Ed Snowden in working to halt a police state in its tracks.
The following excerpts are from the must-read interview of Ed Snowden's ACLU legal advisor, Ben Wizner, Director of the ACLU Speech, Privacy and Technology Project. The interview was conducted by Michael Winship, Senior Writer at Moyers & Company.  I am not a Bill Moyers fan but my hat's off to his organization for the interview and the great questions Winship posed.  However, I've taken the passages from Truth-Out's posting of the interview, which is where I learned about it.
The interview covers several topics; here I'm highlighting only Wizner's summary of how Snowden's mission is already revitalizing journalism, the justice system, and the U.S. legislative branch of government and even impacting the executive branch. Emphasis throughout is mine.

I was greatly struck by Wizner's repeated phrase, "Snowden was watching ... " While Snowden's said his intention wasn't to change government -- that this was for the American people to do -- it seems that in the years running up to the leaks he initiated, he was trying to isolate everything that specifically made up the mechanics of the burgeoning police state and asking himself how to dismantle the wiring diagram, so to speak.

Again, the following are only excerpts from what I consider a very important revelatory discussion.

Our Chat With Edward Snowden's Legal Counsel
Wednesday, 12 March 2014 10:44
By Michael Winship, Moyers & Company


Winship: How would you characterize what [Snowden] has revealed?

Wizner: Well, maybe the best way to answer that question is to remember what President Obama said in the first week after the revelations began to appear on front pages. He said Americans shouldn't be too worried about these disclosures because all three branches of government had blessed the programs and activities that were being disclosed.

That was a true statement. That was also exactly the problem. And it's worth looking at what those same three branches of government have done since Edward Snowden's disclosures, since the public was brought into this conversation.

So let's look at the courts. Now, it's true that a court called the Foreign Intelligence Surveillance Court had approved, in secret, some of these programs. It's a court that hears only from the government, does not have the benefit of adversarial briefing, didn't get to hear what our objections would have been. It's also a court that was set up to give warrants, not to write opinions on whether surveillance programs in general were lawful.

And when we tried to bring challenges to these programs in open federal courts, we got as far as the Supreme Court, but every court turned us away without even considering the legality of the programs. The government said, "These plaintiffs have no right to be in court. They can't show that they were subjected to these surveillance programs, and therefore they don't have standing. And they're not allowed to use the discovery process to learn that, because that would be a state secret."

The result being that no one has the right to go into federal court to challenge the legality of these programs.
Edward Snowden was watching this. In our very first conversation, one of his first questions to me was, "Have these documents that have been published so far given you standing to go back in court?"

To him, the idea that a court would not answer the question, "Is this program legal? Is it constitutional?" but instead would contort itself in order to not answer that question seemed like a failure of oversight, and he was right.

What's happened since his disclosures? We have now taken some of these documents, gone back into federal courts, where our standing is really much harder to question. Two federal judges have now considered, for example, the constitutionality of the government's collection of all telephone metadata. They've come so far to different conclusions on the legal question, but both said that the plaintiffs have standing to be in court. So one thing that he's done is he's reinvigorated judicial oversight.


Now, what about Congress? To me, the signal moment in Congress is [Senator] Ron Wyden asking [Director of National Intelligence] James Clapper, "Is there any kind of information that you collect on millions or hundreds of millions of Americans?" And Clapper says, "No, sir, not wittingly."

We like to call this Clapper lying to Congress, and it's certainly that. But it would be much more accurate to say that Clapper was lying to the American people, because Senator Wyden knew that the answer was false. [Wyden] didn't, he felt like he couldn't, correct the answer. No one else on the committee corrected the answer. Clapper didn't correct the answer, no one on his staff, no one in the Administration.

So what we had was a lie being told to Congress and no one in any branch coming forward to say that a lie had been committed. And Snowden was watching that, too.

And what's happened in Congress since the public disclosures? The issue has come out of the intelligence communities and into the full Congress. There is historic bipartisan legislation that would end bulk collection of American's data, that would create an adversarial process in the Foreign Intelligence Surveillance Court.

This is the kind of legislation that would've been absolutely unthinkable before Snowden.

The direction has been one-way since the late 1970s. The Deep State has more authority, not less. The opposite is going to happen now. Now, whether it's something that seems more cosmetic or something that really is historic, well, that's really up to the people to decide. We will see. But there's been an earthquake in the congressional oversight of these programs, and that's because of Snowden.


And even the executive branch, which said, "Nothing to see here" — you know, the president appointed his own review board, that included former very high ranking intelligence community officials and other close friends of his. I think it's fair to say that the civil society organizations expected a whitewash. But that's not what we got.

The conclusions were — more politely stated — that the NSA had essentially gotten out of control, that it allowed its technological capabilities to drive its practices, rather than having its practices constrained by laws and values, and even wisdom. And there were dozens and dozens of recommendations that went not only to giving Americans greater protections, but also people abroad. And you heard the president in January, in his big speech about the NSA, say — first time for any president, I think — that we need to be concerned about the privacy rights of people outside the US who are not protected by the Constitution.

So all three branches of government are now doing the oversight that the Constitution wants them to do, that they were not doing before Edward Snowden. To me, that is his most significant contribution.


Winship: And you feel that the route he took, via journalists, was the one and only way he could go?

Wizner: I guess at times I wonder what people mean when they say he should have gone through a traditional route rather than going through journalists. Sometimes, the kinds of people who we call [officially sanctioned] whistleblowers ... are people who uncover unquestionably illegal conduct that's been hidden away and they just need to bring it to the attention of an overseer, call up an inspector general, call up a member of Congress and say, "Look what I found," and then the system will take care of itself.

But sometimes, someone comes upon a system of global dragnet surveillance that the oversight system deems perfectly legal. This is not something that Congress was unaware of. This is not something that courts were unaware of, at least the courts that were set up to review these practices.

What was Edward Snowden supposed to do, call up the Senate Intelligence Committee and say, "Hi, I'm a 29-year-old contractor who works in Hawaii, and I'm calling to report to you about the programs that you have approved in secret?"

This was a very, very different kind of situation. There was no one to report to who had not been part of the system of approval. And even those who were in the Congress who shared Snowden's view about the propriety and maybe legality of this were unwilling to talk.

Senator Wyden was on the floor of the Senate with his hair on fire, saying, "If the American people knew what I knew, they would be angry and they would be shocked."

Well, that turned out to be true, but we didn't learn it from Senator Wyden. We learned it from Edward Snowden.

And one more point about what he did. You know, the number of documents that Edward Snowden has made available to the public is zero. What he did is give information to journalists, with the instruction that they and their editors, in consultation, where necessary, with government officials, decide what was in the public interest to publish, and to withhold information that would be harmful to publish.

He wanted to create a protocol that would correct for his own biases. He was someone who had spent the last almost ten years in the intelligence community. He didn't think that his own judgments — and he has very strong judgments about what should or should not be public — were adequate to this moment and wanted to make sure that the institutions that had the experience in doing this. And these are our newspapers, who have long experience competing with the government over access and control of secret information, that being the way that the information got published.

And many people have not noticed this.

In an interview that Snowden gave with TIME magazine when he was runner-up to the Pope for Person of the Year, he said he hasn't always agreed with the public interest determinations of the journalists, but that that's precisely why he needed to do it this way.

He didn't want and didn't think that he should have the responsibility to decide which of these documents should be public. He wanted to appeal to the traditions, the institutions, the expertise of the media in helping to make those important judgments.

That's what we want whistleblowers to do. We don't want them to unilaterally substitute their judgment for everybody else's. We want them to go through these institutions that funnel and that channel that [information] and have longer experience in making these kinds of decisions.

Winship: And yet, Keith Alexander, the outgoing head of the NSA, made a speech at Georgetown a few days ago in which he said that journalists don't have the proper ability to analyze these materials, and he said that Snowden's leaks had caused "grave, significant and irreversible damage to our nation."

Wizner: Those words are the classic weasel words of the Deep State. That sentence could have been lifted from the United States government's brief to the Supreme Court in the Pentagon Papers case, where they said if the Court allowed The New York Times and Washington Post and others to publish the papers they would be responsible for "grave and irreversible damage to the national security." It's exactly the same kind of language.

You know, I wonder if General Alexander really believes that our democracy would be stronger and better off if journalists deferred in every case to the expertise and interests of the executive branch in deciding what to publish. I mean if you look just back at the last few years and consider what the public would not have known on that model [gives examples from the Bush 2 administration] ...

All of this stuff was classified. Not just classified; it was classified at the highest level. These were the secrets that the government said were most critical to keep. But what kind of democracy would we be if the public had never learned of this information?

I'm also not saying that journalists alone should decide what the public sees. I mean the government's voice in this debate is an important one. It's a back and forth. It's always been a back and forth.

I don't believe a single story based on Snowden documents has yet been published without consultation with the government, without giving the government an opportunity to strenuously object and to point out things that might cause harm in their view. And that's why I don't think there's been any credible evidence at all of real harm to national security from these leaks.

1 comment:

bdoran said...

While it's utterly unnecessary to spy on the entire nation, it would be a mistake to give lawyers and the courts the awesome powers of the spy and the State at their disposal.

Which is my Dear the point of all of this, the Deep State is of course not the Intelligence organs, they merely have secrets like the Military. The Deep State madam are our Progressive Elites, and the Courts and Prominent Law firms as well as the State Dept are firmly in their Camp.

The Foreign Policy community for instance is far more of a Deep State than our poor hounded by reporters intelligence services.

This is about Power, and in this exercise the exercise of Deep Blue over the Deep Red [Pentagon] of the NSA. For they don't have them, yet. The last such exercise was the Church Committee where the State Dept took over the CIA. Now it will have the NSA as well to the extent this succeeds.

Liberty is not on the march, merely the consolidation of Progressivism. Who actually of course need to watch the Americans more closely than the Pentagon.