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America's Surveillance Net   



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A  reporter takes a mobile phone picture of National Security Agency Director US  Army General Keith Alexander as he takes his seat to testify before a US House  Permanent Select Committee on Intelligence hearing on recently disclosed NSA  surveillance programs, at the US Capitol in Washington June 18, 2013.  Reuters/Jonathan Ernst   A school of fish swims peacefully in the  ocean. Out of sight, a net is spread beneath it. At the edges of the net is a  circle of fishing boats. Suddenly, the fishermen yank up the edges of the net,  and in an instant the calm, open ocean becomes a boiling caldron, an exitless,  rapidly shrinking prison in which the fish thrash in vain for freedom and  life.

About the Author

Jonathan Schell
  Jonathan Schell is the Doris Shaffer Fellow at The Nation  Institute and teaches a course on the nuclear dilemma at Yale...

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Increasingly, the American people are like this school of fish in the moments  before the net is pulled up. The net in question is of course the Internet and  associated instruments of data collection, and the fishermen are corporations  and the government. That is, to use the more common metaphor, we have come to  live alongside the machinery of a turnkey tyranny. As we now know, thanks to the  courageous whistleblower Edward Snowden, the National Security Agency has been  secretly ordering Verizon to sweep up and hand over all the metadata from the  phone calls of millions of its customers: phone numbers, duration of calls,  routing information and sometimes the location of the callers. Thanks to  Snowden, we also know that unknown volumes of like information are being  extracted from Internet and computer companies, including Microsoft, Yahoo,  Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple.

The first thing to note about these data is that a mere generation ago, they  did not exist. They are a new power in our midst, flowing from new technology,  waiting to be picked up; and power, as always, creates temptation, especially  for the already powerful. Our cellphones track our whereabouts. Our  communications pass through centralized servers and are saved and kept for a  potential eternity in storage banks, from which they can be recovered and  examined. Our purchases and contacts and illnesses and entertainments are  tracked and agglomerated. If we are arrested, even our DNA can be taken and  stored by the state. Today, alongside each one of us, there exists a second,  electronic self, created in part by us, in part by others. This other self has  become de facto public property, owned chiefly by immense data-crunching  corporations, which use it for commercial purposes. Now government is reaching  its hand into those corporations for its own purposes, creating a brand-new  domain of the state-corporate complex.

Surveillance of people on this scale turns basic liberties—above all the  Fourth Amendment, which protects citizens against unreasonable search and  seizure—into a dead letter. Government officials, it is true, assure us that  they will never pull the edges of the net tight. They tell us that although they  could know everything about us, they won’t decide to. They’ll let the  information sit unexamined in the electronic vaults. But history, whether of our  country or others, teaches that only a fool would place faith in such  assurances. What one president refrains from doing the next will do; what is  left undone in peacetime is done when a crisis comes.

The executive branch offers a similar assurance about its claimed right to  kill American and foreign citizens at its sole discretion. But to accept such  assurances as the guarantee of basic liberties would be to throw away bedrock  principles of our constitutional order. If there is any single political idea  that deserves to be called quintessentially American, it is the principle that  government power must be balanced and checked by other government power, which  is why federal power is balanced by state power and is itself divided into three  branches.

The officials—most notably President Obama—have assured us that this system  is intact, that the surveillance programs are “under very strict supervision by  all three branches of government,” in Obama’s words. But the briefest  examination of the record rebuts the claim. In this matter, the interactions of  the three branches are a cause not for reassurance but for deeper alarm. It’s  not that the legislative and judicial branches are not involved; it’s that each,  in its own way, has abandoned its appointed constitutional role.

The story arguably begins with George W. Bush’s end run around the legal  system after the terrorist attacks of 2001, when, in complete disregard of the  law, he initiated warrantless domestic surveillance by the NSA. So clearly  illegal and extreme was this program that high-ranking officials of his  administration, including James Comey, deputy attorney general, and Robert  Mueller, director of the FBI, threatened to resign. Bush backed off some of the  measures, and the confrontation did not become known until much later.

What happened then? Did Congress check this executive usurpation? Did it  castigate Bush, forbid the crimes, hold his officials accountable? It did not.  It adopted the worst features of the Bush program as law, in the Protect America  Act of 2007 and the Foreign Intelligence Surveillance Amendments Act of 2008; it  also immunized from legal repercussions corporations that had secretly knuckled  under to Bush’s wrongdoing. Far from correcting the abuses, Congress  institutionalized them. At the same time, it supported the executive branch’s  cloak of secrecy over those abuses and the classification of the legal opinions  of the FISA court, whose rulings have given legal protection to the new  surveillance programs. The Obama administration’s legal opinions on the  practices are also classified.

As for the judicial branch, it happens that in 1979, the Supreme Court ruled  that the sort of metadata collected from Verizon is not covered by the Fourth  Amendment. (In fairness, there is no sign that the Court anticipated or meant to  approve the sort of indiscriminate dragnet of metadata now under way. Thus, a  lawsuit recently brought by the ACLU to stop this has a chance of succeeding.)  The FISA court almost never refuses government requests. James Bamford, an  expert on NSA surveillance, has characterized this institution as “a super  hush-hush surveillance court that is virtually impotent.”

Our system of checks and balances has gone into reverse. The three branches,  far from checking one another’s power or protecting the rights of Americans,  entered one after another into collusion to violate them, even to the extent of  immunizing the wrongdoers. Balanced, checked power has become fused  power—exactly what the founders of this country feared above all else. The  political parties have been no more useful as checks than the branches of  government; their leaderships stand together protecting the abuses, though  individual senators, including Jeff Merkley and Ron Wyden, have proposed  sensible reforms.

Finally, even elections have proven ineffective: the voters chose a president  who taught constitutional law running on a platform of stopping civil liberties  abuses; but he has become the author of new abuses. Even now, his soothing  demeanor and reputation for liberalism (“Change we can believe in&rdquo confuses and  thwarts those who otherwise would be reacting with anger.

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What should Americans do when all official channels are unresponsive or  dysfunctional? Are we, as people used to say, in a revolutionary situation?  Shall we man the barricades? The situation is a little more peculiar than that.  There is a revolution afoot, but it is not one in the streets; it is one that is  being carried out by the government against the fundamental law of the land.  That this insurrection against the constitutional order by officials sworn to  uphold it includes legal opinions and legislation only makes it the more radical  and dangerous. In other words, the government is in stealthy insurrection  against the letter and the spirit of the law.

What’s needed is counterrevolution—an American restoration, returning to and  reaffirming the principles on which the Republic was founded. Edward Snowden,  for one, knew what to do. He saw that when government as a whole goes rogue, the  only force with a chance of bringing it back into line is the public. He has  helped make this possible by letting the public know the abuses that are being  carried out in its name. Civil disobedients are of two kinds: those inspired by  universal principles, and those inspired by national traditions. Each has its  strengths. Julian Assange of WikiLeaks is the first kind; Snowden, the second.  Asked why he had done what he did, Snowden replied, “I am neither traitor nor  hero. I am an American.” He based his actions on the finest traditions of this  country, which its current leaders have abandoned but which, he hopes, the  current generation of Americans still share. In the weeks and months ahead,  we’ll find out whether he was right. Jonathan Schell

More coverage of the NSA spying scandal from this week's Nation can be viewed here and here.

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