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Snowden and Snooping
Remarks at the MIT Center for International Studies
Ambassador Chas W. Freeman, Jr. (USFS Ret.)
Cambridge, Massachusetts
12 December 2013
We live in what the National Security Agency [NSA] has called 'the golden
age of SIGINT [signals intelligence].' We might have guessed this. We now
know it for a fact because of a spectacular act of civil disobedience by Edward Snowden. His is perhaps the most consequential such act for both
our domestic liberties and our foreign relations in the more than two
century-long history of our republic.
This
past spring, Mr. Snowden decided to place his oath to "preserve,
protect and defend the Constitution of the United States" and his
allegiance to the Bill of Rights above his contractual obligations to
the intelligence community and the government for which it snoops. He
blew the
whistle on NSA's ruthless drive for digital
omniscience. When he did this, he knew that many of his fellow citizens
would impugn his patriotism. He also knew he would be prosecuted for
violating the growing maze of legislation that criminalizes revelations
about the national security practices of America's post-9/11 warfare
state.
Mr. Snowden does not dispute that he is guilty of legally criminal acts.
But he places himself in the long line of Americans convinced, as Martin
Luther
King put it, that "noncooperation with evil is as much a moral
obligation as is cooperation with good." As someone long in service to
our country, I am upset by such defiance of authority. As an American, I
am not.
Like Henry David Thoreau and many others in protest movements in our
country over the past century and a half, Mr. Snowden deliberately broke
the
law to bring to public attention government behavior he considered at
odds with the U.S. Constitution, American values, and the rule of law.
One point he wanted to make was that we Americans now live under a
government that precludes legal or political challenges to its own
increasingly deviant behavior. Our government has criminalized the
release of information exposing such behavior or revealing the policies
that authorize it. The only way to challenge its policies and
activities is to break the law by exposing them.
Mr. Snowden justifies his flight abroad on the grounds that, had he
remained within the jurisdiction of the United States, he could not have
had a fair trial, would very likely have been subjected to cruel and
unusual
punishment, and would have been isolated and silenced to avert informed
debate by Americans about the public policy issues his revelations
raise. Not so very long ago—let's say in the time of Daniel Ellsberg—it
would have been fairly easy to show that such fears were groundless.
Unfortunately, that is no longer the case. Mr. Snowden has been driven
to ground in Russia, a country with an incomparably worse record of
lawlessness than ours that he never intended to visit, let alone reside
in. If he tries to go elsewhere, he will be hunted down and made to
disappear.
Post 9/11, practices not seen in our political culture since the abolition
of
the Star Chamber by the Habeas Corpus Act of 1640 have again become
commonplace. Such practices include—but are not limited to-—detention
without charge or trial, various forms of physical and psychological
abuse, and the extrajudicial murder of
American citizens on the orders of the president. All of these are
facilitated by electronic eavesdropping, as is state terrorism by drone
and death squad. Like the inhabitants of countries we condemn for gross
violations of human rights, Americans are now
subject to warrantless surveillance of our electronic interactions with
each other, the arbitrary seizure at the border of our computers and
private correspondence, the use of torture and degrading practices in interrogation and pretrial detention, and prosecution upon evidence we
cannot see or challenge because it is "classified."
In the thirteen years since the 21st century began, many of the rights
that once defined our republic have been progressively revoked, in
particular those enumerated in the 4th, 5th, and 6th amendments to our
Constitution. The freedoms that have been curtailed include the rights to:
immunity
from "searches and seizures except upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." not "be deprived of life, liberty, or property, without due process
of law." "a speedy and public trial . . . and to be informed of the nature and
cause of the accusation."
Mr.
Snowden has brought home to us that, while we Americans do not yet live
in a police state or tyranny, we are well along in building the
infrastructure on which either could be instantly erected if our leaders
decided
to do so. No longer protected by the law, our freedoms now depend on
the self-restraint of men and women in authority, many of them in
uniform. History protests that if one builds a turnkey totalitarian
state, those who hold the keys will eventually turn them.
One does not have to approve of Mr. Snowden's conduct to recognize the
service
he has done us by exposing the cancerous growth of our government's
surveillance apparatus. The issues before us are neither his character
nor the punishment he should receive. The issues we must address are:
(1) how much domestic surveillance can
be reconciled with the Constitution and the immunities from government
intrusion it once guaranteed to individuals and groups, and (2) where,
against which foreigners, and to what extent such electronic snooping
should be carried out abroad.
The United
States was founded on the principle that "that government is best that
governs least." This concept of limited government is wholly
incompatible with the notion of an omniscient executive, still less one
that is protected by secrecy from both accountability and the checks and
balances imposed by independent judicial review, congressional and
public oversight, or even common sense. Yet, we can be in no doubt that
our fear of foreign and domestic terrorism has caused us to nurture
just such a governmental leviathan.
Judicial
checks on surveillance activities by an essentially coopted FISA
[Foreign Intelligence Surveillance] Court have been both minimal and
ineffective. NSA has not always heeded its rulings anyway. There is no
evidence of congressional push-back against the steady expansion of
snooping on Americans or foreigners or of presidential efforts to
restrain
either. The very members of Congress responsible for
intelligence community oversight professed to be shocked when they
learned about the scope of NSA's eavesdropping on both Americans and
foreign leaders. The president claimed ignorance. Whether these
political postures reflect dishonesty or incompetence is unclear.
What is not in doubt is that there has been a massive, ongoing failure by
our government to conduct its intelligence activities in a manner
supportive of our liberties and our alliances with foreign nations. Both
oversight
and management of intelligence collection programs need urgent
corrective surgery. And it is time for a major pruning of the jungle
of surveillance programs that national hysteria about terrorism,
essentially limitless funding, and burgeoning technical capabilities
have combined to produce.
The very purpose of
the state is the management of the nation's defense. To do this, the
authorities must have situational awareness and early warning of
possible threats from both state and non-state actors. SIGINT, like
other forms of espionage and diplomatic reporting and analysis, is part
of the answer to this need. But SIGINT was invented to support actions
on the battlefield. For the most part, it remains a military project.
We do not — we should not — ask our military to exercise restraint when
attacking perceived threats. Armies are not expected to play by the
rules but to win. They are inevitably inclined to overkill. It has been
said that "an elephant is a mouse built to mil-specs." True to the
military culture of excess from which it sprang, NSA is an intrusive
collection apparatus that has evolved to "collect it all." "All" is
much
too much.
Given their
invisibility, secret programs have a particular propensity to expand
beyond their original purposes. The view that activities that are not
legal are not necessarily illegal, and that any and all technology
should be exploited —l'outrance is what underlies the decision to
"collect it all." It is hardly surprising that this has become NSA's
self-proclaimed mission. Why does a chicken cross the road? Why does a
dog lick its balls? Because it can. Why does NSA snoop on everyone
everywhere online? Because it has the money and means to do so, not
because what it collects meets any valid, externally determined national
requirement, standard of efficiency, or foreign policy judgment. The fact
that we are able to do things that violate the trust and privacy of others does not make it wise or appropriate to do them.
What we have seen since 9/11 is a combination of adaptation to new
international
circumstances and a growing ration of purposeless program growth, only
tangentially related to threats to our national security. In the case
of SIGINT, this is a dangerous misdirection of resources. Conventional
threats of all kinds are now minimal but cyber threats are escalating.
SIGINT capabilities should be focused on potential enemies and on
defending citizens and their government against foreign cyber
intrusions, theft, and sabotage, not on collecting information about
citizens in the United States and other democracies. It is neither
necessary nor proper to spy on democratic foreign allies who do not spy on us.
It is not necessary because these allies are open societies that debate
their basic policies in public. We are represented in their capitals by
diplomatic missions whose purpose, in part, is to keep our government
informed
about their motivations, reasoning, plans, and operations. If we need
to understand these societies and their capabilities and intentions
better, we should strengthen our diplomacy, not our covert military
trespasses against them.
Mr. Snowden documented
misbehavior that was a Pandora's box of embarrassments waiting to burst
open. It should have been seen as such by those who authorized and
carried it out. Their overreach has now done great damage to our moral
standing internationally. This is a painful
reminder that
eavesdropping on allies is no more compatible with mutually respectful
and cooperative relationships than behaving like a peeping Tom is with
friendship.
By alienating our foreign admirers
and supporters, we have weakened our country's political influence
abroad. By hacking into our great information
technology companies to create Trojan horses, our government has spread
distrust of U.S. products and services and damaged the competitiveness
of our economy. By belying the decent respect for the opinions of
mankind with which we inaugurated our nation, Washington has catalyzed a
global loss of confidence in the righteousness of American leadership.
By showing suspicious contempt for allies and ready hostility toward
other nations, Americans have undermined the prospects for both future
international cooperation by allies with our armed forces and peaceful
coexistence with our competitors.
In the Cold War, we Americans and our allies justly saw ourselves as
threatened with nuclear annihilation or ideological subjugation. Someone
in
Moscow could turn a key and most of us would soon be dead. The threats
before us are in no way comparable. Yet, in the face of a greatly
lessened danger, our leaders have chosen — mostly in secret — to defend
our freedoms and preserve our
international standing in ways that diminish both. Our own government
has become a vastly more potent threat to the traditions and civil
liberties of our republic and to the rule of law than al-Qaeda could
ever hope to be.
Our ability to
intercept, decipher, and understand the communications of those who wish
us ill is an invaluable competency. But it is a capability that
coexists uneasily with a free society and with cooperation with other
free societies. Those who exercise it are —for the most part — patriots
attempting to defend our nation, not infringe its liberties. But our
misapplication of their ability to eavesdrop to their fellow citizens
as well as democratic allies who do not spy on us is a perversion of its purpose
that must be curtailed. The collection of intelligence is essential to
our national security. It is not and cannot be an end in itself. And
in a democracy, it cannot be safely conducted without judgment based on
a sense of propriety and self-restraint born of deference to the rule of law.
Freedom
requires checks and balances, not paternalistic monitoring by the
government. It is now incontrovertible that we have failed to apply
effective checks and balances to core national security and intelligence
functions. No one in Washington or anywhere else should be in a
position to turn a key and deprive us or our posterity of the blessings
of liberty. It is past time to rethink and radically downsize both the
warfare state
and the undisciplined surveillance apparatus it has given birth to.
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