Questions about American intelligence agencies violating the privacy rights of citizens have been front-page news ever since the so-called “War on Terror” began in earnest following the September 11, 2001, attacks. During the early years of the Bush Administration, the controversy focused on warrantless wiretapping, the National Security Agency’s (NSA) practice of listening in on specific intercontinental telephone calls without authorization from the Foreign Intelligence Surveillance Court (FISC). But as the agency has grown – it now employs over 30,000 workers and has contracts with up to 500 private companies – new concerns have been raised about the collection of vast amounts of personal data from ordinary American citizens. And Barack Obama, who came into office promising to curtail overreach by the intelligence community, appears instead to have become its chief instigator.
This past May, Edward Snowden, a 29 year-old analyst for Booz Allen Hamilton – an NSA contractor – walked off the job with a trove of secret government documents. He shared many of those with Glenn Greenwald, an American expatriate journalist who writes for the UK’s Guardian newspaper. Greenwald, a longtime critic of the American intelligence community, began to publish articles based on the information contained in Snowden’s documents.
It soon became clear that what we thought we knew about the NSA’s operations (and their implications for privacy rights) paled in comparison with what was really going on. The Snowden revelations included information about a program called PRISM, in which the NSA collected private user data sitting on the servers of social networking companies like Google, Facebook, Apple, AOL, Yahoo, and others. Included were chat logs and emails through companies like Skype and Hotmail. The agency accomplished this collection by installing “fiber-optic splitters” on the information backbones of these companies, essentially creating a mirror of everything that traveled down those trunks.
Last spring, it was revealed that the NSA had sought and obtained a secret FISC court order to engage in the bulk collection of “metadata” on millions of Verizon cellphone users. Metadata is a record of when a call was made, from where, from whom and to whom, along with other information on the parties involved. Similar metadata-sharing arrangements have been reported between the NSA and other US cellular phone companies, including ATT and Sprint. And in a twist right out of the crony capitalist playbook, it turns out that the NSA has actually paid these companies hundreds of millions of dollars for the right to comb through their records. According to a story in USA Today, the NSA’s hope was "to create a database of every call ever made" in the country. The NSA claims that this information is essential in order to examine possible patterns in terrorist activity. Civil libertarians counter that the same pattern mapping can be applied to the private lives of innocent citizens, particularly since the government isn’t compelled to destroy the data once it has analyzed it. That, they say, is a violation of privacy.
In mid-summer, another NSA program came to light, this one aimed at the content of various sorts of communications. Named XKeyscore, the program subjects email and other traffic to substantive filtering and analysis. According to the Guardian’s Greenwald, XKeyscore permits low-level NSA employees to “listen to whatever emails they want, whatever telephone calls, browsing histories, Microsoft Word documents. And it’s all done with no need to go to a court, with no need to even get supervisor approval on the part of the analyst.”
Most recently, it was divulged that the NSA has targeted millions of European cellphone conversations over the past decade, including most notably those of the German Chancellor, Angela Merkel. Merkel’s phone calls have been taped since at least 2001, when she was a rising star in the Christian Democratic Party. The program also included a dragnet of 70 million French cell phone calls made during a thirty-day period ending last December. Reaction on the Continent was quick and predictable. Merkel claimed that trust had been broken, and said “spying among friends is never acceptable.” In France, President Hollande called in the American ambassador to lodge a formal complaint. Both the Germans and the French said they would press for a new set of international agreements to set limits on American data mining and eavesdropping.
Catholic ears perked up when an Italian newspaper reported that the NSA had even monitored calls into and out of the Domus Sanctæ Marthæ, the residence hotel behind St. Peter’s Square, in the days and weeks leading up the conclave that elected Pope Francis. Of course, then-Cardinal Jorge Mario Bergoglio stayed at the Domus prior to the conclave, so presumably even his conversations might have been overheard. The NSA has strongly denied the report in Panorama magazine, and for its part the Vatican has dismissed the entire affair. “We are not aware of anything on this issue,” said Father Federico Lombardi, a Vatican spokesman, “and in any case, we have no concerns about it.”
The tension between individual rights, including privacy, and the tendency of the government to relentlessly expand its collection of data has long been a feature of the American republic. Writing over a hundred years ago, Louis Brandeis, then a young Boston lawyer, noted that “recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right ‘to be let alone’ … Numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” Of course, Brandeis would go on to become one of the legal minds of the 20th century, a Supreme Court justice, and a staunch defender of privacy rights.
There is no question that governments have not only the right but the responsibility to gather secret intelligence in order to defend the body politic against those who would do it harm. This is most clearly the case when it comes to foreign intelligence. Last month, Angela Merkel tried to make the case that friends don’t spy on friends. She conveniently forgot the truism, attributed to the British statesman Lord Palmerston, that, “Countries don’t have friends, they have interests.” The relationship between two nations, no matter how close, is simply not analogous to a genuine friendship two persons. At best those relationships, like that between the United States and Germany, are friendships of utility, practical alliances in pursuit of common goals.
Certainly, governments have a responsibility to behave ethically toward each other, and they should always operate according to the rules of international law. But it’s not clear that American spying on Merkel was a violation of either ethics or law. In testimony given before the Congress, James Clapper, the Director of National Intelligence, noted, “leadership intentions is kind of a basic tenet of what we collect and analyze.” Indeed, if the term “foreign intelligence” means anything, it means that, which is why even the prospect of NSA eavesdropping on pre-conclave deliberations is to be expected. The Vatican is an independent city-state, and the Successor of Peter holds enormous normative power. Therefore, in addition to being an important religious occasion, a papal conclave is a significant political event. One would expect that governments, including the United States, would have an interest in reading the papal auguries.
What is different and disturbing about the NSA programs revealed by Edward Snowden is the degree of scrutiny given to the private, personal information of American citizens, who, unlike foreign leaders, have an expectation that their government will act with constitutional restraint. A different standard of both law and ethics attaches to the secret programs of governments when those activities intersect with the long-established liberties of a free people. Some will argue that the people are protected by good intentions, even if the actual methods may skirt some constitutional provisions. But history is rife with examples of good intentions converted into tyranny. Moreover, the data that are actually collected create new possibilities for abuse just by being present and available to government authorities. “The evil that is in the world,” wrote Albert Camus, “almost always comes from ignorance, and good intentions may do as much harm as malevolence if they lack understanding.”
Some will argue that such programs are justified by their effectiveness in rooting out terrorist plots. Laying aside the question of whether these programs have indeed yielded the results some claim, this is just a classic consequentialist argument: the ends justify the means. But means are precisely what law and ethics exist to regulate. The ends of our constitutional republic are summarized in the brief, one-sentence Preamble to the Constitution: “… to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity …” The rest of the Constitution is about means, the “how” of governance. Benjamin Franklin is reported to have said, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” For Americans, liberty is not an end-state, like “provide for the common defense;” the Preamble talks about the “blessings of liberty,” not liberty itself. That’s because liberty is the means of achieving national ends, and it has both an ethical and legal-procedural character that distinguishes it from license (or, for that matter, the much more amorphous “freedom”).
Ultimately, what many find so galling about the NSA’s bulk collection of the private, personal information of American citizens is the licentiousness of it all, the hubris and lack of restraint. That impression is reinforced when we learn that the NSA has in the past few years built itself a $1 billion data center at Fort Gordon, Georgia, another $3.5 billion, 1 million square foot data center in Bluffdale, Utah, and most recently, an 11,000 square-foot “Information Dominance Center” at Fort Belvoir, Virginia. The facility is the private playground of NSA chief General Keith Alexander, and comes complete with what its architect describes as a “futuristic yet distinctly military … Commander’s console, which gives the illusion that one has boarded a star ship.” So, write an email to a friend in Pakistan, put in a call to your sister in Vancouver, or just post a Facebook status with the word “terrorism” in it and some half-baked Captain Kirk in an NSA’s star ship may take a ‘special interest’ in you.
In the 1970s, the oddly named United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by Sen. Frank Church, conducted investigations and hearings in which the sordid postwar history of the CIA was dragged into the light. Significant changes were made in the way the intelligence community does its important work. Those changes included enactment of the Foreign Intelligence Surveillance Act (FISA), which established the FISC. Something similar may be brewing today, and this time it may be the NSA in the dock. We may have to learn again the lessons gleaned from the Church Committee’s work: that only clearly defined constitutional protections, vigorous and impartial oversight by bodies answerable to the people, and the recruitment of serious professionals with a strong ethical core can prevent the kinds of abuses of power at which the Snowden revelations have only hinted.
And today we celebrate...