Photo Credit: Enric Teller/Flickr
June 19, 2013
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Edward Snowden, the 29-year-old NSA whistleblower who leaked a byzantine collection of classified documents,
insists
that the US government is building “an architecture of oppression.”
While it has not yet become a reality, the capabilities of the security
state are astounding, as Snowden notes.
Similar rhetoric has been
recently used by Brian Jenkins, a man at the other end of the spectrum. A
counter-terrorism expert and high-level consultant, Jenkins helped
create the first database of international terrorists in 1971. In an
interview with Slate,
Jenkins remarked: "What we have put in place is the foundation for a very oppressive state."
Both
of these characterizations of the sprawling national security apparatus
acknowledge that “the tools are in place,” as Jenkins puts it, but the
oppressive state is not yet fully formed. However, the two men indicate
that a capricious turnkey response to a crisis, or the contrasting
policies of a newly elected leader, for example, could easily undermine
basic democratic freedoms and create a tyrannical regime.
Here are five ways that an "architecture of oppression" has already grown publicly and been normalized since September 11, 2001.
1. The Patriot Act
The big daddy of reactionary power grabs, the Patriot Act was put before Congress on
a rare fast-track
by Attorney General John Ashcroft just nine days after September 11. It
was passed in a whirlwind of jingoistic fervor with only two hearings
in the House and none by the Senate Judiciary Committee.
Sen. Russ Feingold (D-WI) was the only senator who voted against it.
The
Patriot Act made a variety of significant changes to law. It defined or
redefined terrorism, domestic terrorism, cyberterrorism, and
established or modified existing laws that indict those crimes. The
powers of the US Attorney General and the Secret Service were expanded
to eliminate barriers to investigating terrorism. Surveillance abilities
were enhanced including weakening restrictions on wiretapping and other
stored communications like voicemail. The power of the Treasury
Department to regulate financial transactions and importantly foreign
corporate or personal transactions was also broadened in an effort to
crack down on financing terrorism.
It is the jewel in the crown
of state repression, and has been used to criminalize an entire
generation of political dissidents, whether they be environmental
activists who were rebranded “eco-terrorists,” hacktivists who became
“cyberterrorists,” or international solidarity activists who were
accused of “material support for terrorism.”
2011 saw numerous
reports
that the government had used the Patriot Act in 1,618 drug cases, and
only 15 terrorism cases. It has long been known as the “Kitchen Sink
approach to National Security” but the government’s abuse of the
intentions of these provisions is astounding.
The Patriot Act is central to understanding how the NSA is conducting its dragnet surveillance. Critics have pointed out that
PRISM,
one of the secret programs exposed in Snowden’s leaks, allows the US
government to collect and store metadata directly from the servers of
companies like Google, Facebook, and Apple. It is clear that
communications with individuals outside of the US are subject to this
collection process, along with more conventional data gathering, like
the
filtering and collecting
of data running across fiber-optic cables. However, the extent to which
this affects the Internet communication of all US citizens is unclear.
The program
has been enabled
by the Foreign Intelligence Surveillance Act of 1978, or FISA. A legal
framework for surveillance, FISA was inspired by the findings of the
Church Committee in order to give Congressional and Judicial oversight
to domestic surveillance programs. It was a reform brought about after
the nefarious disclosure that President Nixon had been spying on
political organizations and activists in violation of the 4th
Amendment’s requirement of probable cause. But in 2001 FISA was expanded
by the Patriot Act under the Bush administration and renewed again by
the Obama administration in December 2012 with bipartisan support.
A contentious clause and one at the heart of the NSA surveillance scandal,
Section 215
of the Patriot Act modifies FISA to give law enforcement and
intelligence agencies “unfettered” access to “business records” which
the Patriot Act defines as any “tangible thing.” This generous wording
leaves a lot of room for interpretation. It is the government’s legal
justification for collecting cell phone records from Verizon and, given
the pliability of the phrase, may be applicable to the PRISM program as
well.
The Patriot Act also lowers the threshold for the approval
of surveillance requests by a secret court created by FISA. More than
20,000 applications for data have come before the court since 2001, and
only
11 have been denied.
It appear that this judicial oversight amounts to little more than a
formality and does not serve as a serious check on the power of law
enforcement.
2. Killing US Citizens and the Use of Drones
There
is no legal framework for the targeted assassination of US citizens
without due process. In an address last month, Obama acknowledged for
the first time what the world has known to be true thanks to courageous
reporting: that in the span of one month, three American citizens were killed by drone strikes in Yemen in 2011. One of those killed,
Abdulrahman al-Awlaki, was just 16 years old.
In a court filing earlier this month, a lawyer for the Justice Department, Paul E. Werner,
argued
that despite not being approved by the judge, the killings were legal
because the President and the Attorney General said they were legal.
“The Attorney General’s statement last month that the use of remotely
piloted aircraft and the targeting of Anwar Al-Aulaqi were subject to
'exceptionally rigorous interagency legal review' and determined to be
lawful -- along with the President’s statement that those actions were
legal -- only support the conclusion that those actions were lawful, and
certainly were not clearly established to be unconstitutional in 2011.”
The ACLU and the Center for Constitutional Rights recently issued a joint
response
to the government’s admission to the killings. “The government
continues to insist that the courts have no role in evaluating the
legality of its actions. But the executive branch cannot simply declare
the killings lawful and attempt to close the book on that basis. A
federal judge, not executive officials examining their own conduct, must
determine the constitutionality of the government's actions.”
It
appears that President Obama and Attorney General Holder have no
intention of backing down from the precedent set by the killing of US
citizens. President Obama has said that drone strikes responsible for
killing civilians “will haunt us as long we live,” but nevertheless
indicated that the program would go on. According to the
New America Foundation, since the drone program began in 2004, more than 550 civilians have been killed.
3. Cracking Down on Activists
Activism
used to be the way people voiced their grievances to elected officials
and the powerful, but recent government crackdowns on peaceful protest
have demonstrated that in this country, now more than ever, dissent is
being criminalized.
Take the case of an 82-year-old nun and two
peace activists in Tennessee. In June 2012, early in the morning, the
three Catholic protesters gained access to a nuclear power plant in Oak
Ridge, Tennessee. They cut through several layers of fencing, unopposed
by security personnel. Once inside the fence, they unfurled banners,
spray painted anti-nuclear slogans and prayed together. They were soon
arrested, and their civil disobedience was complete. Fast-forward to a
year later. The seemingly innocuous protest has been deemed by Federal
Prosecutors an act of “sabotage against the US government.” The three
were convicted of a number of weighty felonies and currently await their
sentencing in September.
In Oregon, frustrated lawmakers have
resorted to calling some peaceful environmental activists terrorists.
Thanks to the Animal Enterprise Terrorism Act in 2004, this is nothing
new. But what is new is trying to slander a peaceful civil disobedience
tactic -- tree-sitting -- with the language of terrorism. Will Potter
explains:
“On April 29, two bills passed the Oregon House that would hit tree
sitters and non-violent protesters with felonies and mandatory minimum
sentences.” A representative in the Oregon House, Wayne Krieger, has led
the charge against “environmental terrorists” and says "there's been a
30-year reign of terror by these people having no respect for the rights
of others."
Let’s not forget about the widespread surveillance of
Occupy Wall Street (OWS) activists that has recently come to light.
Documents released by the FBI in December 2012 reveal that the the law
enforcement agency investigated OWS as “
domestic terrorists.” Furthermore, a
report
released in May 2012 by the Center for Media and Democracy sifted
through thousands of pages of redacted government documents and made a
number of startling findings. Fusion centers funded by the Department of
Homeland Security, which pool intelligence information between federal
and state law enforcement, dedicated vast resources, innumerable hours,
and taxpayer funds to monitor OWS. The CMD report also details the FBI’s
use of a secret program called “Operation Tripwire” which was initially
developed to catch domestic terrorists using informants from the
private security sector.
Then there is Jeremy Hammond. The hacktivist
pleaded guilty
to charges stemming from the hack of Stratfor, a private intelligence
firm, in December 2011. Thousands of private emails were released
through WikiLeaks, revealing the extent of the involvement of private
security firms in matters of US national security and counterterrorism.
Hammond took responsibility for this and some eight other hacks of
defense contractors/law enforcement websites. He said he was also
relieved, after being in jail for more than a year without being
convicted of a crime, to say that he worked with Anonymous.
Hammond,
like Snowden, was troubled by the undemocratic nature of the
intelligence world, specifically the way the US government embraces
outsourcing to private security firms, which as early as 2006 were said
to do
70% of US intelligence work.
These for-profit corporations have no public or government
accountability for their actions, and are often involved in illegal
behavior, which the Stratfor hack proved.
In a statement released
after his plea, Hammond, like Snowden, invoked his moral imperative to
act: “I did this because I believe people have a right to know what
governments and corporations are doing behind closed doors. I did what I
believe is right.”
4. Prosecuting Whistleblowers
The
Obama administration has prosecuted more whistleblowers than every
other previous administration combined. Since 2009, Obama’s Department
of Justice has used the Espionage Act, an archaic law drafted during
World War I,
to prosecute six whistleblowers: Thomas Drake, Stephen Jin-Woo Kim, John Kiriakou, Shamai K. Leibowitz, Jeffrey Sterling and Pfc. Bradley Manning.
The
Espionage Act itself is an enigma. It was written by Woodrow Wilson’s
administration for the purposes of combating a hostile climate both at
home and abroad. By most accounts, it merely reiterated many of the laws
against espionage that were already on the books. But a more explicit
clue to its purpose comes from then Attorney General Thomas Gregory who
called the act and the 1918 Sedition Act amendment “warfare by
propaganda.”
"While we are fighting to establish the democracy of
the world, we ought not to do the thing that will establish autocracy in
America." These words could easily describe our present moment, but
they were
uttered by Illinois representative Martin Madden at the time of the Espionage Act’s passing.
The most egregious prosecution of a whistleblower has been the
trial
of Bradley Manning. Manning, who leaked thousands of documents to
WikiLeaks during the Iraq war, has pleaded guilty to 10 of the 22
charges against him, which could land him in prison for more than two
decades. However, the government is pressing on, prosecuting him for,
among other things, espionage and aiding the enemy, a charge which
insists that the information Manning leaked had the expressed intent of
aiding Al Qaeda operatives.
Aside from Manning’s case, the other
prosecutions under the Obama administration reflect a serious desire for
the administration to maintain secrecy. In fact, four of the
prosecutions are for leaking information--in the case of Thomas Drake
declassified information--to journalists for stories on domestic, not
international, affairs.
But none of this has deterred the most
recent round of leaks by Edward Snowden. In fact, those prosecutions
might have inspired the leaks.
In an interview with the
Guardian,
Snowden was asked if the treatment of other whistleblowers had
influenced his decisions and actions to come forward. He responded:
“[NSA whistleblower William] Binney, Drake, Kiriakou, and Manning are
all examples of how overly harsh responses to public-interest
whistle-blowing only escalate the scale, scope, and skill involved in
future disclosures. Citizens with a conscience are not going to ignore
wrong-doing simply because they'll be destroyed for it: the conscience
forbids it. Instead, these draconian responses simply build better
whistleblowers.”
5. Prosecuting and Spying on Journalists
The
revelation
that the US government obtained phone records of Associated Press (AP)
reporters and editors in a probe that took place over a two-month period
came as a shock to many. But in the wake of the NSA surveillance
scandal, it is now unclear whether this behavior is extraordinary. It
fits in with what the NSA leak exposed; it was indicative of the
nonchalance of the US government with regard to dragnet surveillance of
US citizens, whether they are press or not.
Less than a month ago, the AP’s president sent a
letter
to Attorney General Holder expressing his outrage and rebuking the
Department of Justice: “We regard this action by the Department of
Justice as a serious interference with AP’s constitutional rights to
gather and report the news. While we evaluate our options we urgently
request that you immediately return to the AP the telephone toll records
that the Department subpoenaed and destroy all copies.” A variety of
different organizations and periodicals decried the action, from the
ACLU to the New York Times. The consensus seemed to be that it was an
unacceptable form of intimidation, and everyone was quite shocked.
Revelations
about Fox News journalist James Rosen followed the AP story. Rosen was
accused of being “an aider and abettor and/or a co-conspirator” by an
FBI agent in connection with a story that he published in 2009,
allegedly based on information from a leak. The government obtained a
search warrant to access Rosen’s emails in order to track down the
source of the leak. Attorney General Holder later
indicated
that there would be no prosecution of Rosen. Instead, the Justice
Department would focus on those responsible for leaking information, not
those disseminating it.
Yet immediately after Glenn Greenwald
broke the story of the NSA leaks, the drums in Washington began beating
again, seeking his prosecution. Peter King (R.- N.Y.) led the charge,
appearing
on Fox News and claiming that Greenwald was holding CIA information
that he would disclose publicly. Greenwald has denied this allegation,
and pointed to King’s hypocritical involvement with the IRA, long
considered a terrorist organization by the US government. On Twitter,
Greenwald wrote: “Only In America can a renowned and devoted terrorism
supporter like Peter King be the arbiter of national security and
treason.”
The first periodical to cast light on his possible prosecution was the New York Times, which
published a profile
on Greenwald on June 6. “The article, which included a link to the
order, is expected to attract an investigation from the Justice
Department, which has aggressively pursued leakers,” the Times reported,
referring to Greenwald’s pieces. Later on, the authors write: “He said
that he had been advised by lawyer friends that ‘he should be worried,’
but he had decided that ‘what I am doing is exactly what the
Constitution is about and I am not worried about it.’”
Despite
Attorney General Holder’s comments, the matter of prosecuting
journalists publishing leaked material seems anything but resolved.
Independent journalist John Knefel, who is currently reporting from
Guantanamo Bay, told AlterNet: “The harder it is for journalists to do
their job, the easier it is for the government to operate in secrecy.”
***
There
is a deeply disturbing pattern of escalating infringements on civil
liberties that has been normalized, beginning with the Patriot Act and
extending to drone warfare, activism, and the surveillance and
prosecution of members of the press.
Many politicians would have
you believe that this is a fair tradeoff for liberty. But Americans are
beginning to see the architecture of oppression swelling around them.
This
is the moment when it looks like the United States will finally have a
conversation about what the post-9/11 world should look like and
re-problematize some of the more troubling conclusions we’ve reached in
the past decade. This line of questioning should extend far beyond the
bounds of the national security apparatus, and tackle fundamental
issues. For example, are we, as a society, prepared to condemn an
82-year-old nun as a serious national security threat and imprison her
and her co-defendants for the rest of their lives?
This is a
serious question which gets to the heart of some national security
dilemmas: political culpability. The protest was harmless, yet some
unnamed nuclear experts told the
New York Times on August 10,
2012 that it represented “the biggest security breach in the history of
the nation's atomic complex.” So the conviction of the three protesters
in Tennessee is more complicated. It created a huge national security
embarrassment when the banner-wielding hymn-singing troupe waltzed into
the nuclear facility and made it clear that terrorists could have done
the same. The US government has chosen to criminalize the agency of
dissidents in the decade following 9/11 and create, by way of simile,
the parallel between dissent and acts of terror. The protesters are not
to blame for the scandal; they were the ones who revealed it to the
public.
When asked by Glenn Greenwald about the worst thing
that could happen after the leaks came out, Snowden replied: “The
greatest fear that I have regarding the outcome for America of these
disclosures is that nothing will change. People will see in the media
all of these disclosures. They'll know the lengths that the government
is going to grant themselves powers unilaterally to create greater
control over American society and global society. But they won't be
willing to take the risks necessary to stand up and fight to change
things to force their representatives to actually take a stand in their
interests."
Fortunately, it appears that the conversation has gone viral, and both the US and the world are starting to catch on.
Tom Hintze is a freelance writer. Follow him on Twitter @lesswallmorest.
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