The Burglary (91 page)

At first, intelligence officials
denied the reports that the NSA was conducting massive surveillance of Americans' communications. Eventually, they admitted that it did but that doing so was essential to preventing the next terrorist attack. Director of National Intelligence
James Clapper, in response to questions at a hearing of the Senate Intelligence Committee in March 2013, said the NSA did not collect data on millions of Americans. After the release of secret NSA files that contained evidence that contradicted Clapper's congressional testimony, he wrote a letter to the committee in which he admitted that his prior testimony had been “
clearly erroneous—for which I apologize.” Some members of Congress have called for him to be prosecuted for lying to Congress.

In attempts to justify the massive sweeps, intelligence officials and President Barack Obama insisted that the agency was collecting metadata from the phone calls—information about where each call was made and its destination, when each call was placed and its duration. Such information, they said, could be extracted from data banks and used to establish connections between terrorists and potential terrorists. The content of the calls, they insisted, was not collected or listened to.

Additional NSA files, however, provided confirmation that, indeed, the content of calls was being collected and could easily be retrieved. In fact, the
vast amounts of additional material being stored by the NSA for the possible future use of either metadata or the content of individual communications was a key reason for the current expansion of the NSA's physical facilities, or data warehouses, in the United States and around the globe. Elaborating on the files that documented that the NSA and the FBI now tapped directly into the central servers of at least nine leading U.S. Internet companies to extract whatever the user had produced, or was producing, Snowden said, “
They can literally watch your ideas form as you type.”

The NSA files revealed that expansion of the NSA's reach was greatly aided by its collaboration with foreign intelligence agencies and communications companies here and abroad. For instance, the NSA has greatly increased its international surveillance capacity by working closely with its longtime British counterpart, GCHQ (Government Communications Headquarters). With massive funds from the NSA,
GCHQ created
Tempora, a system American and British agencies use to collect the phone calls and web traffic that travel through fiber-optic cables under the sea. According to an NSA file, major American and European phone companies have secretly given GCHQ and the NSA unlimited access to their network of undersea fiber-optic cables. The capacity of the cables is extraordinary.
They can convey more than 21 petabytes a day—equivalent to transmitting all the information in the 14 million books in the British Library 192 times every twenty-four hours.

The two intelligence agencies also are perfecting their existing cell phone surveillance capability. The stated goal of the project is to “
exploit any phone, anywhere, any time.” This plan includes developing the ability to “attack” phone apps and increase capacity to track the patterns of unlimited numbers of emails, conversations, Internet searches, and any other use of cell phones.

After reviewing the scope of the NSA's capacity, it is not surprising to learn that the vision of the agency and its British collaborators is “
to tap directly into the nervous system of the 21st century and peer into the lives of others.”

AMERICANS' REACTIONS
to these revelations have been mixed, becoming increasingly critical of the NSA as more evidence has been revealed. Many ardent defenders of the right to privacy and of civil liberties are grateful that some organizations, key among them the American Civil Liberties Union, have strongly opposed these new intrusions into Americans' lives. Others accept the assurances of President Obama and intelligence officials
that all of this expansion has been necessary in order to prevent the next terrorist attack.

The contrast between public attitudes during the Hoover era and now is interesting in regard to how people have reacted to evidence of intrusive invasions by intelligence agencies. For decades, many Americans accepted Hoover's pronouncements that communism was at the heart of every new movement for rights that came along, and, therefore, such movements should be regarded as potentially subversive. But when Americans were presented with evidence—from the Media burglars and subsequent investigations—of the true nature of what the bureau did under his leadership, a national consensus developed that his methods were not only unacceptable but must be guarded against in the future. Given evidence, few thought it was acceptable to place members of nonviolent groups, such as various Quaker organizations or the Southern Christian Leadership Conference, under constant surveillance. Few thought it was acceptable that actress Jean Seberg should be harassed by the FBI's planting false rumors about the race of the father of her unborn child, a dirty tricks operation that resulted in the death of her premature baby and, ultimately, in her suicide. And few thought it was acceptable for the FBI to secretly decide that Martin Luther King was a demagogue who should be displaced by the bureau as leader of the civil rights movement and in the process be harassed for years by the bureau, including sending him a message suggesting he should kill himself.

By contrast, Americans have had a more muted reaction to the evidence presented to them about overreach by the NSA and the FBI. The evidence of overreach by intelligence agencies arrives now while many people still fear that there is an enemy who might hit again at any time. That fear has been encouraged by presidents and intelligence officials as they have reminded Americans often that they should be afraid, and should also be confident that they are being protected by increased security measures.

Uncertainty about the new enemy, as well as uncertainty about whether officials are leveling with Americans about the enemy, has made it difficult to ask questions during discussions of national security. It is especially difficult to discuss whether the government has taken steps that may have increased the vulnerability to attack.

Many politicians, like the citizens they represent, have felt paralyzed by this issue. They have been afraid to ask questions because they fear that if there is a terror attack tomorrow, those who questioned increasing the capacity of the security apparatus will be blamed for the attack and voted out of office at the next election. Consequently, Republican and Democratic
administrations and leaders in Congress have found since 9/11 that the only deeply bipartisan issue has been the expansion of national security.

That's why it was striking news two months after the secret NSA files became public when
a bipartisan group of members of the House of Representatives nearly succeeded in defunding the NSA's telephone data collection program. The measure, proposed by Representative
Justin Amash, Republican from Michigan, and cosponsored by Representative
John Conyers, Democrat from Michigan, failed, but by a surprisingly narrow margin, 205–217. Both opposition and support for the measure were strongly bipartisan. The Democratic and Republican leaders of the House, in rare agreement, pushed the president's strong request that the measure be defeated. The signal sent by the close vote was so strong that two days after the vote, sixty-one House Democrats who had voted no on the measure, including House party leaders
Nancy Pelosi, Democrat from California, and
Steny Hoyer, Democrat from Maryland, sent the president a letter signaling that they had stood with him on that vote but that they would now join the effort to roll back the massive government surveillance.

A crucial moment in the debate on the move to defund NSA phone surveillance came when Representative
James Sensenbrenner, Republican from Wisconsin, told his colleagues that as a primary author of the Patriot Act and its various extensions since 9/11—the law intended to give intelligence agencies more leeway, but not as much as it was now widely understood they had taken—he and his coauthors never intended to allow the wholesale vacuuming up of domestic phone records, nor did they envision that their legislation supported data dragnets that would go beyond specific targets of terrorism investigations. “The time has come to stop it,” he said as he urged the members to vote to defund.

Because of his deep involvement with the legislation that is supposed to govern the intelligence agencies, Sensenbrenner's remarks were regarded as a pivotal moment. Politicians also said their move toward reining in the agencies reflected a gut-level concern about personal privacy that had been growing among their constituents since the release of the NSA files. When the files were first released, Congress and the public focused mostly on bringing the leaker to justice. Some, including House Speaker
John Boehner, Republican from Ohio, and former vice president
Dick Cheney,
called Snowden a traitor. But, as more revelations of penetrating surveillance emerged, the emphasis switched from punishing Snowden to confronting the implications of the files he revealed.

Two senators, Senator Ron Wyden, Democrat from Oregon, and Senator Mark Udall, Democrat from Utah, had repeatedly asked the NSA in recent years
if it could quantify the number of Americans it was surveilling. Agency officials first told the senators the agency did not have the technological capacity to extract the number. Later it told them that expending time searching for the number would divert time and money from surveillance, “likely impeding the NSA's mission.” In the NSA files that Snowden made public was the answer. Yes, the agency could find the number. An appropriately named NSA program,
Boundless Informant, was created for the purpose of quantifying how many people were being surveilled in any country at any moment. NSA slides released showed that the agency kept ongoing records of this information and that the level of surveillance in any country could be accessed at any time with a click on a country on a digital map of the world that was color-coded to show at a glance the various levels of surveillance in each country.

Wyden, who has been a Paul Revere in Congress on these matters,
repeatedly warning that surveillance is out of control, has been grateful for the growing bipartisan coalition on the issue in Congress. Now that NSA evidence was on the table, more people took seriously his warning that the country was faced with an emergency due to overreaching intelligence. In a speech after the release of the first NSA files, he said:

Wyden's remarks were a strong echo of a warning not heeded that was made by Senator
Frank Church during the 1976 Senate investigation of intelligence agencies by the committee he chaired. Church said even then that the NSA had unique invasive capacities. Fearful of what would happen if the NSA ever turned its highly charged spying powers onto Americans—as it now has—
Church warned:

A dictator is not in place, but a tyranny-ready technological surveillance infrastructure is in place. Started by President George W. Bush, a president who used faulty intelligence and deliberate lies as the basis for starting the war in Iraq, the NSA's high-tech tyranny-ready surveillance infrastructure has been continued and expanded by President Obama, who promised unparalleled transparency at the start of his first administration and who is the first president who has taught constitutional law. Equally anomalous, his administration also has criminally prosecuted more government whistleblowers than have all previous presidents combined.

To a large degree, the excesses that the released NSA files document are the result of the failure of two of the key reforms created by Congress in response to the investigation and recommendations made by the Church Committee. Two key innovations put in place in the 1970s to protect Americans from abuses by intelligence agencies, the FISA Court and the congressional intelligence oversight committees, since 9/11 have
become rubber stamps of the intelligence agencies, enablers of the abuses they were created to guard against and of a massive abuse that didn't exist then—blanket electronic surveillance of hundreds of millions of Americans. Some became willing enablers by virtue of not caring how far the intelligence agencies went in interpreting their legal mandate. Others became enablers by virtue of assuming they could trust the agencies to interpret their mandate as it was limited by the law. Still others have simply been afraid to ask questions they knew needed to be asked. In any event, the result has been that the strong oversight envisioned in the 1970s—and that the 9/11 Commission urged in its investigation after 9/11—dissolved as the congressional intelligence committees increasingly became primarily advocates for rather than overseers of the intelligence agencies.

Operating in secrecy, as it is required to, the FISA Court by now has written a body of secret law that is not examined in the usual chain of judicial review. It functions, some analysts have said, like a
parallel Supreme Court, but without any exposure of its decisions. No one except intelligence officials and the judges themselves know the substance or rationale of the court's decisions. It also lacks the presence of an adversary, a lawyer in hearings to test the government's surveillance requests to the court. The overall
secrecy of all aspects of the court and the lack of an adversarial process leave the court open to questions about how it has been possible for intelligence agencies to have such an extraordinary success rate before the court: In its thirty-five-year history, the court has rejected only eleven out of more than 34,000 surveillance requests.