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The US Government: "Everyone's a Suspect"

The US Government: "Everyone's a Suspect"

By Dennis Loo (1/27/14)

Peter Swire, chief counselor for privacy in the Clinton Administration from 1999 to 2001, special assistant to Obama for economic policy in the National Economic Council, and currently serving on Obama's Intelligence Review Group, described the new paradigm for government surveillance to PBS's Frontline show in 2007 as "Check everybody. Everybody is a suspect."

This is a momentous shift in the nature of governance: treating everyone as a suspect and checking everybody. Under this new principle, you are no longer innocent until proven guilty. You are instead assumed to be guilty and nothing you do, assuming this principle remains, can relieve you of that indefinite status.

Some people's reactions to this are that "I have nothing to hide." But, as I have written previously, responding to that perspective from various angles, this view undermines the very foundational principles of an open society and gives limitless power to the government to chill and to crush dissent.

There is a reason why the Great Writ of Habeas Corpus is so pivotal to the end of the previously unlimited and therefore capricious and arbitrary powers of the sovereign. The very concept and practice that the law is greater than any individual - the rule of law - cannot exist without the standard of the presumption of innocence until proven guilty through due process.

This is in fact, however, what governance has now become: "Check everybody. Everybody is a suspect."

This January 17, 2007 PBS interview with Swire is well-worth reading. In fact, it should be required reading. Here is another snippet from that interview:

Swire: One of the big changes for the FBI once we got to the 1990s is that they were losing the copper-wire wiretaps they'd always done, and so FBI Director Louis Freeh made a priority. He says, "We have to be able to wiretap the new phone network." This led to a law in 1994 called CALEA, the [Communications] Assistance [for Law] Enforcement Act … that said the telephone companies had to build their new fiber networks in ways that were wiretap-ready. That meant that the networks were now built at the switch level to handle wiretaps and to handle them probably in a much higher volume than before.

PBS: So we're not talking about the wiretap on an individual wire at this point; we're now talking about putting some kind of device in at the switching center and getting the whole flow of traffic.

Swire: The change in 1994 was that the wiretaps could be done at the switching center. The question that keeps coming up later is, is that going to be one person at a time, or is that going to be a much, much broader kind of wiretap at the switch level?

PBS: Does the FBI have a program that could do that, a computerized program?

Swire: In 2000 the press reported an FBI program called Carnivore, which was a device that could do very large-scale snooping at the switch level.

PBS: And what happened?

Swire: What happened in 2000 when Carnivore was announced was a tremendous outcry from the Republican Congress, complaining that the Democrats were leaning too much on surveillance and shouldn't do so much wiretapping. …

PBS: You said wiretapping at a broader level. What does that mean?

Swire: Well, instead of wiretapping one person at a time, now you might be able to wiretap everybody in the neighborhood or everybody who's going through that switch.

PBS: You mean if you're in someplace like New York or San Francisco, you can wiretap the whole city if you want to?

Swire: Well, some of the switches are pretty darn big, and when you get to the AT&T case, there's allegations that at the switch level we're talking huge volumes of calls, maybe for millions of people.

The PBS show that this interview accompanies, Spying on the Home Front, contains a very telling incident concerning an alleged plot to bomb Las Vegas in 2003. Here is my commentary on that:

As PBS’s 2007 Frontline show, “Spying on the Home Front” chronicled,

On New Year’s Eve weekend [2003] the FBI demanded records from all hotels, airlines, rental car agencies, casinos and other businesses on every person who visited Las Vegas in the run-up to the holiday. Stephen Sprouse and Kristin Douglas of Kansas City, Mo., object to being caught in the FBI dragnet in Las Vegas just because they happened to get married there at the wrong moment. Says Douglas, “I’m sure that the government does a lot of things that I don’t know about, and I’ve always been OK with that—until I found out that I was included.” A check of all 250,000 Las Vegas visitors against terrorist watch lists turned up no known terrorist suspects or associates of suspects.

Here is the problem with this event: If you were a terrorist planning a dramatic terrorist attack upon Las Vegas, would you register in a hotel or rent a car in your real name in the days leading up to New Year’s Eve? Would you not place some people in the Las Vegas area months or even years ahead of time and have them working and/or living in the town under pseudonyms? Does the FBI not realize this? Of course they do. That is why the unconstitutional demand for all of the names of all of the visitors to Las Vegas that weekend was in all probability a test—to see if the FBI could obtain the compliance of Vegas businesses to their demands, and to set a precedent for future incursions into business and private records. (Globalization and the Demolition of Society, p. 207)

For those who believed Obama when he was campaigning for the presidency that he was going to honor and restore the rule of law, read on:

Since taking office, Obama has retained the apparatus created by his predecessors and gone even further, insisting, for example, on a new principle
his Department of Justice (DOJ) calls “sovereign immunity” with respect to the government’s ubiquitous surveillance: the executive government is not subject to supervision unless it can be shown that private information about someone was deliberately released in order to harm that person. As Glenn Greenwald described it (Glenn Greenwald, “New and Worse Secrecy and Immunity Claims from the Obama DOJ,” Salon.com, April 2, 2009):

[T]he Obama DOJ demanded dismissal of the entire lawsuit [brought by the Electronic Freedom Foundation in October 2008 against the government for its warrantless spying on Americans] based on (1) its Bush-mimicking claim that the “state secrets” privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new “sovereign immunity” claim of breathtaking scope—never before advanced even by the Bush administration—that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is “willful disclosure” of the illegally intercepted communications.

In other words, beyond even the outrageously broad “state secrets” privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and—even if what they’re doing is blatantly illegal and they know it’s illegal—you are barred from suing them unless they “willfully disclose” to the public what they have learned. [Emphases in original]. (GDS, Pp. 207-208)

Thus, the previously decried Federalist Society and Bush Regime's argument ("unitary executive") that the White House had unlimited executive powers, including the right should the president order it, to have a boy's testicles crushed in front of his father in order to extract information from the father,[1] the Obama Administration did the "unitary executive" doctrine one better, claiming "sovereign immunity." Note in this regard that in his January 17, 2014 speech Obama claimed that he had found no "intentional abuse" of the NSA's powers through its warrantless surveillance, as if "intentional" abuse was different than unintentional abuse. This is entirely consistent with their 2009 DOJ stand that the government could only be sued if it willfully disclosed its surveillance. "We can gather all of the data on you all indefinitely and store it," they are saying, "but we cannot be sued for doing so unless you can prove that we willfully disclosed the contents of that surveillance."

Because of its relevance, I’m reprinting a June 13, 2013 article of mine entitled “Those Who Cry Treason” here:

Those Who Cry Treason

By Dennis Loo (6/13/13)

When whistleblowers - such as Bradley Manning and Edward Snowden - reveal that Washington has been lying about what U.S. public officials have been doing for years, officialdom along with some pundits have declared it “treason” and demanded blood, both metaphorically and literally.

Sen. Dianne Feinstein, for example, has accused Snowden of “treason.” Right-wing pundits like Jonah Goldberg have openly asked why Wikileaks’ founder Julian Assange has not been assassinated by the CIA.

Apparently, telling the American people the truth can get you killed. This is the message these august leaders are proclaiming and busily realizing in concrete fact.

What these political elites are claiming is that the American people “can’t handle the truth.” Telling the American people what their leaders have been doing and revealing that the American people have been lied to systematically for years by Obama on down, that is what Snowden and Manning are being pilloried for.

What is the penalty for revealing the truth? Manning was tortured for years and faces a possible death sentence and Snowden confronts a similar fate.

What are the consequences, on the other hand, for lying to the American people and causing grave damage to the nation, its people and the world? These particular consequences are not penalties but rewards: the American presidency, Congressional seats, speaking tours, cushy privileges, and immediate access to fawning media outlets that treat your every pronouncements with high regard.

As Mark Twain put it, “It could probably be shown by facts and figures that there is no distinctly native criminal class except Congress.” To which we would have to add to Twain’s comment about Congress: the American Presidency and prominent punditry posts.

Let’s ask the central question here: what is it that al-Qaeda did not already know or had to assume to be true about U.S. surveillance that has been revealed by Snowden and Manning?

Rep. Mike Rogers, Chair of the House Intelligence Committee claimed yesterday that “America’s enemies” have already altered their behavior due to Snowden’s dramatic whistleblowing.

“Rogers said there are ‘changes we can already see being made by the folks who wish to do us harm, and our allies harm’ and that the revelations might also ‘make it harder to track bad guys trying to harm U.S. citizens in the United States.’”

He provided no details to support this claim.

What anti-state terrorists are so stupid that they didn’t already treat their cell phones, landlines, and email as insecure? We know from none other than the CIA that in the hunt for bin Laden that al-Qaeda communicated with bin Laden through courier and not through cell phones, email, or landline phones because they already knew the U.S. was monitoring electronic communications. As the Wall Street Journal reported in 2008, for example, “Bin Laden was known not to use phones after 1998, when the U.S. had launched missile strikes against his bases in Afghanistan and Sudan in August (Operation Infinite Reach) by tracking an associate's satellite phone.[22]

Wikileaks published material allegedly from Bradley Manning in 2010. Snowden, of course, revealed details about NSA’s spying last week. How did Bin Laden know back in 1998 what was only released by Manning in 2010 and Snowden in 2013? Did he have a time machine?

How many people, upon thinking about this for more than a few moments, actually believe that al-Qaeda opened up last week’s Washington Post and the Guardian and slapped themselves from shock when they found out - for the first time! – that the U.S. government was tracking their – and everyone else’s electronic communications? Do you imagine that they said to themselves: “What?! Our cell phones are bugged? They’re watching us with drones and satellites? They’ve got a spy network, electronic and human? What?! Verizon can’t be trusted? You mean that guy with the glasses in those Verizon commercials, when he says “Can you hear me now?” he means the NSA?!’“

Let’s be clear as we examine these issues closely: The lies that authorities have been telling us are not small lies or inadvertently misleading comments. These are Big Lies told by those at our society’s very highest levels of authority. These are the people who make public policy, who order soldiers into war and decide whether people will be killed by missiles shot from drones. These particular lies have been used to justify the most important and consequential policies of our times, including the deaths of hundreds of thousands in these wars, the justification for and use of torture, for the evisceration of fundamental civil liberties, and the spending of trillions of dollars to, among other things, commit war crimes.

The people who have been telling these lies repeatedly and before the nation are the people who make the most important decisions possible for our welfare as a whole, or lack thereof. These are our political leaders. These are the kind of lies that are quantum leaps more consequential than any lies or deeds that anyone tells or commits on an everyday basis in their everyday lives.

I have been publishing for several years exposes and analyses about the fact that the NSA and other agencies of the U.S. government have been spying on all of our electronic communications. In one example, see this beginning to an article with my co-author that we published at the journal State of Nature in Autumn of 2012:

Ubiquitous warrantless governmental surveillance of the populace, coupled with an increase in the level of governmental secrecy, is commonly perceived to be one of the state’s responses to post-9/11 realities. This is, however, only a half-truth. The cluster of policies that includes staggering levels of state surveillance, the treating of the whole populace as suspects, and the suppression of popular dissent, are in fact a logical outcome of the rise of neoliberal regimes in the world generally and in the U.S. specifically.

In nearly every single country in the world today, neoliberal policies dominate. In the U.S., both the Republican and Democratic Parties embrace neoliberalism.

It is hard to believe that secrecy and surveillance could be more extreme today than George W. Bush’s regime. Bush’s constitutional abuses of civil liberty under the fig leaf of improving national security are well documented. His transgressions include, but are not limited to, the unprecedented expansion of the surveillance state with Orwellian-named programs such as Carnivore, MATRIX, Talon, Eagle Eyes and Total Information Awareness (Bowley, 2006). [1]

But neoliberalism has trumped the conventional wisdom regarding the differences between Democrats and Republicans. Perhaps nowhere is this more evident than in the realm of state secrecy and surveillance, both symptoms of the repression of the public, a hallmark of all neoliberal regimes.

There are a handful of others who have been doing similarly. James Bamford, for example, wrote this bombshell of an article in March 15, 2012 at Wired magazine, “The NSA is Building the Country’s Biggest Spy Center (Watch What You Say).” In it he declares:

Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter.” It is, in some measure, the realization of the “total information awareness” program created during the first term of the Bush administration—an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans’ privacy.

But “this is more than just a data center,” says one senior intelligence official who until recently was involved with the program. The mammoth Bluffdale center will have another important and far more secret role that until now has gone unrevealed. It is also critical, he says, for breaking codes. And code-breaking is crucial, because much of the data that the center will handle—financial information, stock transactions, business deals, foreign military and diplomatic secrets, legal documents, confidential personal communications—will be heavily encrypted. According to another top official also involved with the program, the NSA made an enormous breakthrough several years ago in its ability to cryptanalyze, or break, unfathomably complex encryption systems employed by not only governments around the world but also many average computer users in the US. The upshot, according to this official: “Everybody’s a target; everybody with communication is a target.”

Many, many others in the intelligence world, by the way, have said this last phrase: “Everybody’s a suspect. Everybody’s a target.” This is how public order policies (POP), the new model for governance, operate: treat everyone as a suspect. POP date from the late 1970s in Europe and have since spread around the world. POP are another way of describing neoliberal regimes’ policies for governance.[1] That is why Snowden’s revelations are only the most recent confirmation of what a few of us have been saying for years.

Why haven’t those of us who have been writing about this ubiquitous warrantless surveillance been called ‘treasonous’?

If the answer to that question is that it is one thing when a professor, journalists, activists, and experts on intelligence say it, and another thing when an insider says it, then the difference is not the content of what is being revealed. The difference is how believable these revelations are to others among the public. Note that I said the public, not the “terrorists.” This will become clear why in a few moments.

If believability is the major difference, I have two questions.

First, “How can it be treason to tell the American people the truth?”

And second, “Do you really think that the terrorists you fear are so stupid that they only rely on what official governmental pronouncements have been about what the U.S. government is doing?”

If you were an anti-state terrorist such as those in al-Qaeda, or you were freelance terrorists like the Tsarnaev brothers, and you were plotting a terrorist attack, what would you take as your guide to how safe your electronic communications were? Would you go to the NSA’s website and see what the NSA said about what it is doing? If you did that, as I just did, you would find things like this:

“Signals Intelligence

“The National Security Agency is responsible for providing foreign Signals Intelligence (SIGINT) to our nation's policy-makers and military forces. SIGINT plays a vital role in our national security by providing America's leaders with critical information they need to defend our country, save lives, and advance U.S. goals and alliances globally.

“What IS SIGINT?

“SIGINT is intelligence derived from electronic signals and systems used by foreign targets, such as communications systems, radars, and weapons systems. SIGINT provides a vital window for our nation into foreign adversaries' capabilities, actions, and intentions.

“NSA's SIGINT mission is specifically limited to gathering information about international terrorists and foreign powers, organizations, or persons. NSA produces intelligence in response to formal requirements levied by those who have an official need for intelligence, including all departments of the Executive Branch of the United States Government. For information on how NSA protects Americans' right to privacy, see the FAQs section.”

You would not even have to go beyond that to do a wider Google search, would you? You would know from reading the NSA’s own website in which they are telling “America’s enemies” in black and white, that they are spying on you!

When is the NSA going to be indicted for treason for letting our enemies know that we are watching them and tapping their phones and reading their emails?

What if you (again, a terrorist) were bored and between inspirational viewings of jihadists’ streaming videos you decided you would do a Google search using keywords like “wiretapping,” “NSA surveillance,” “warrantless surveillance,” and so on because you did not want to confine your searching for information to only the official websites of institutions like the NSA. After all, your mission and chance to spend eternity with forty virgins is at stake.

If you did a search under “warrantless surveillance,” for example, which I just did, you would quickly find a Wikipedia entry that reads in part:

The exact scope of the program is not known, but the NSA is or was provided total, unsupervised access to all fiber-optic communications going between some of the nation's major telecommunication companies' major interconnect locations, including phone conversations, email, web browsing, and corporate private network traffic.[6]

What would you conclude if you were a terrorist? What terrorist worth his or her salt would fail to do such elementary research? Are Wikipedia and The New York Times, Washington Post, Wall Street Journal, CBS News, et al also committing treason by reporting the news? Shall all of our news be delivered via Reality TV shows and we shut down Wikipedia and TV, newspapers, magazines and the web in the name of the “War on Terror”?

How about this October 8, 2008 ABC News story:

“[H]undreds of US citizens overseas have been eavesdropped on as they called friends and family back home, according to two former military intercept operators who worked at the giant National Security Agency (NSA) center in Fort Gordon, Georgia.

“The chairman of the Senate Intelligence Committee, Jay Rockefeller (D-WV), called the allegations ‘extremely disturbing’ and said the committee has begun its own examination.

"’We have requested all relevant information from the Bush Administration,’ Rockefeller said Thursday. ‘The Committee will take whatever action is necessary.’

“[David] Faulk says he and others in his section of the NSA facility at Fort Gordon routinely shared salacious or tantalizing phone calls that had been intercepted, alerting office mates to certain time codes of ‘cuts’ that were available on each operator's computer.

"’Hey, check this out,’ Faulk says he would be told, ‘there's good phone sex or there's some pillow talk, pull up this call, it's really funny, go check it out. It would be some colonel making pillow talk and we would say, ‘Wow, this was crazy,’ Faulk told ABC News.

“Faulk said he joined in to listen, and talk about it during breaks in Back Hall's ‘smoke pit,’ but ended up feeling badly about his actions.”

Does ABC need to worry about being accused of helping America’s enemies by reporting this story?

Compare this to the following gems and more from Zero Hedge, “22 Nauseating Quotes From Hypocritical Establishment Politicians About The NSA Spying Scandal”:

U.S. Senator Mitch McConnell: "Given the scope of these programs, it’s understandable that many would be concerned about issues related to privacy. But what’s difficult to understand is the motivation of somebody who intentionally would seek to warn the nation’s enemies of lawful programs created to protect the American people. And I hope that he is prosecuted to the fullest extent of the law."

U.S. Representative Peter King on why he believes that reporters should be prosecuted for revealing NSA secrets: "There is an obligation both moral, but also legal, I believe, against a reporter disclosing something which would so severely compromise national security."

Barack Obama in 2007: "This Administration also puts forward a false choice between the liberties we cherish and the security we demand… That means no more illegal wire-tapping of American citizens. No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. And it is not what is necessary to defeat the terrorists… We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary."

Speaker Of The House John Boehner on what he thinks about NSA leaker Edward Snowden: "He’s a traitor."

U.S. Senator Lindsey Graham: "I hope we follow Mr. Snowden to the ends of the Earth to bring him to justice."

U.S. Senator Al Franken: "I can assure you, this is not about spying on the American people.”

An exchange between NSA director Keith Alexander and U.S. Representative Hank Johnson in March 2012...

JOHNSON: Does the NSA routinely intercept American citizens’ emails?

ALEXANDER: No.

JOHNSON: Does the NSA intercept Americans’ cell phone conversations?

ALEXANDER: No.

JOHNSON: Google searches?

ALEXANDER: No.

JOHNSON: Text messages?

ALEXANDER: No.

JOHNSON: Amazon.com orders?

ALEXANDER: No.

JOHNSON: Bank records?

ALEXANDER: No.

---

If this were not deadly serious it would be hilarious.

 


[1] On December 1, 2005, Yoo appeared in a debate in Chicago with Doug Cassel, a law professor from the University of Notre Dame. During the debate, Cassel asked Yoo,

"If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?", to which Yoo replied "No treaty." Cassel followed up with "Also no law by Congress—that is what you wrote in the August 2002 memo", to which Yoo replied "I think it depends on why the President thinks he needs to do that."[42][43]

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Elaine Brower of World Can't Wait speaking at the NYC Stop the War on Iran rally 2/4/12