Snowden's whistleblowing gives us a chance to roll back what is tantamount to an 'executive coup' against the US constitution.
June 10, 2013
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In my estimation, there has not been in American history a more important leak than
Edward Snowden's release of NSA material – and that definitely includes
the Pentagon Papers 40 years ago.
Snowden's whistleblowing gives us the possibility to roll back a key
part of what has amounted to an "executive coup" against the US
constitution.
Since 9/11, there has been, at first secretly but
increasingly openly, a revocation of the bill of rights for which this
country fought over 200 years ago. In particular, the fourth and fifth
amendments of the US constitution, which safeguard citizens from
unwarranted intrusion by the government into their private lives, have
been virtually suspended.
The government claims it has a court
warrant under Fisa – but that unconstitutionally sweeping warrant is
from a secret court, shielded from effective oversight, almost totally
deferential to executive requests.
As Russell Tice, a former National Security Agency analyst, put it: "It is a kangaroo court with a rubber stamp."
For
the president then to say that there is judicial oversight is nonsense –
as is the alleged oversight function of the intelligence committees in
Congress. Not for the first time – as with issues of torture,
kidnapping, detention, assassination by drones and death squads –they
have shown themselves to be thoroughly co-opted by the agencies they
supposedly monitor. They are also black holes for information that the
public needs to know.
The fact that congressional leaders were
"briefed" on this and went along with it, without any open debate,
hearings, staff analysis, or any real chance for effective dissent, only
shows how broken the system of checks and balances is in this country.
Obviously, the
United States is not now a police state. But given the extent of this invasion of people's
privacy,
we do have the full electronic and legislative infrastructure of such a
state. If, for instance, there was now a war that led to a large-scale
anti-war movement – like the one we had against the war in Vietnam – or,
more likely, if we suffered one more attack on the scale of 9/11, I
fear for our democracy. These powers are extremely dangerous.
There
are legitimate reasons for secrecy, and specifically for secrecy about
communications intelligence. That's why Bradley Mannning and I – both of
whom had access to such intelligence with clearances higher than
top-secret – chose not to disclose any information with that
classification. And it is why
Edward Snowden has committed himself to withhold publication of most of what he might have revealed.
But
what is not legitimate is to use a secrecy system to hide programs that
are blatantly unconstitutional in their breadth and potential abuse.
Neither the president nor Congress as a whole may by themselves revoke
the fourth amendment – and that's why what Snowden has revealed so far
was secret from the American people.
In 1975,
Senator Frank Church spoke of the National Security Agency in these terms:
"I
know the capacity that is there to make tyranny total in America, and
we must see to it that this agency and all agencies that possess this
technology operate within the law and under proper supervision, so that
we never cross over that abyss. That is the abyss from which there is no
return."
The dangerous prospect of which he warned
was that America's intelligence gathering capability – which is today
beyond any comparison with what existed in his pre-digital era – "at any
time could be turned around on the American people and no American
would have any privacy left."
That has now happened. That is what Snowden has exposed, with official, secret documents. The
NSA,
FBI and
CIA have, with the new digital technology,
surveillance powers
over our own citizens that the Stasi – the secret police in the former
"democratic republic" of East Germany – could scarcely have dreamed of.
Snowden reveals that the so-called intelligence community has become the
United Stasi of America.
So we have fallen into Senator Church's
abyss. The questions now are whether he was right or wrong that there is
no return from it, and whether that means that effective democracy will
become impossible. A week ago, I would have found it hard to argue with
pessimistic answers to those conclusions.
But with Edward Snowden
having put his life on the line to get this information out, quite
possibly inspiring others with similar knowledge, conscience and
patriotism to show comparable civil courage – in the public, in
Congress, in the executive branch itself – I see the unexpected
possibility of a way up and out of the abyss.
Pressure by an
informed public on Congress to form a select committee to investigate
the revelations by Snowden and, I hope, others to come might lead us to
bring NSA and the rest of the intelligence community under real
supervision and restraint and restore the protections of the bill of
rights.
Snowden did what he did because he recognised the NSA's
surveillance programs for what they are: dangerous, unconstitutional
activity. This wholesale invasion of Americans' and foreign citizens'
privacy does not contribute to our security; it puts in danger the very
liberties we're trying to protect.
• Editor's note: this article was revised and updated at the author's behest, at 7.45am ET on 10 June
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