Inside the Expanding Panopticon: Covert Legal Interpretation and Mass Surveillance


800px Presidio modelo2 cuba 300x201 Inside the Expanding Panopticon: Covert Legal Interpretation and Mass Surveillance

Cuba’s defunct Presidio Modelo, the only  “panoptic” prison facility true to the vision of utilitarianism founder Jeremy Bentham

WASHINGTON – Government secrecy faced major public scrutiny this month, as a former National Security Agency mathematician’s claims to all-encompassing government surveillance did not line up with the NSA director’s public statements; and the American Civil Liberties Union found itself embroiled in controversies associated with what it contends are abuses of power by the executive branch, as well as local law enforcement.

Secret Patriot Act Interpretations

Last month the American Civil Liberties Union asked for clarification of the meaning of Section 215 of the Patriot Act. DailyKos Blogger Joan McCarter writes: “The provision in question, [Section] 215, allows the government to gain access to records of citizens’ activities being held by a third party. It gives the FBI the power to force doctors, libraries, bookstores, universities and internet service providers, for example, to turn over records on their clients or customers.”

In a March letter to the American Civil Liberties Union, FBI’s special counsel Paul Colborn said, “We have searched the [Office of Legal Counsel's] files and found two documents that are responsive to your request. We are withholding the documents pursuant to [Freedom of Information Act] Exemption Five, 5 U.S.C. § 552(b)(5). They are protected by the deliberative process privilege, and they are not appropriate for discretionary release.”

While the Obama administration feels that the public is entitled to an understanding of public law, its Department of Justice has said it does not feel that the public is entitled to a full understanding of its own interpretation of public law it enforces.

Alleged National Security Agency Surveillance of Virtually All Domestic Citizen Communications

A former senior NSA mathematician, William Binney, spoke to Democracy Now! this week and expounded upon claims he made to Wired magazine last month. Mr. Binney told Democracy Now!’s Amy Goodman and Juan Gonzalez. He said that “that [secret interpretation of Patriot Act Section 215] gives [the NSA] license to take all the commercially held data about us, which is exceedingly dangerous, because if you take that and put it into forms of graphing, which is building relationships or social networks for everybody, and then you watch it over time, you can build up knowledge about everyone in the country. And having that knowledge then allows them the ability to concoct all kinds of charges, if they want to target you.”

Asked Ms. Goodman, “Do you believe all emails, the government has copies of, in the United States?”

Mr. Binney said, “I would think – I believe they have most of them, yes.”

She said, “And you’re speaking from a position where you would know, considering your position in the National Security Agency.”

He replied, “Right. All they would have to do is put various Narus devices at various points along the network, at choke points or convergent points, where the network converges, and they could basically take down and have copies of most everything on the network.”

Narus is a subsidiary of Boeing that developed the NarusInsight, a computer system whose installation by AT&T in San Francisco generated a class-action lawsuit. The Electronic Frontier Foundation alleges that the telecommunications giant, using the NarusInsight, helped the NSA monitor practically all communication and relayed it to the NSA.

Last month’s Wired article, by James Bamford, relays Mr. Binney speaking of NSA monitoring techniques. “’How do you manage 20 terabytes of intercept a minute?’ he says. ‘The way we proposed was to distinguish between things you want and things you don’t want.’ Instead, he adds, ‘they’re storing everything they gather.’”

In April of 2006, former AT&T technician Mark Klein, who said he witnessed the application of NarusInsight in San Francisco, wrote in a public statement, “Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA’s spying program is really limited to foreign communications or is otherwise consistent with the NSA’s charter or with [the Foreign Intelligence Surveilance Act.] And unlike the controversy over targeted wiretaps of individuals’ phone calls, this potential spying appears to be applied wholesale to all sorts of internet communications of countless citizens.” As Wired acknowledges, the reason that Mr. Binney’s statements to the magazine are so important is because they are the first instance in which we have a statement from inside the NSA confirming Mr. Klein’s suspicions about Internet service provider NSA “black rooms,” the ambiguity of whose existence has become the linchpin for high-profile federal court litigation against the NSA.

An ongoing case against the NSA filed by another former AT&T employee, Carolyn Jewel, elicited one government response implying that Ms. Jewel is not associated with al-Qaeda, or a foreign terrorist organization associated with al-Qaeda, could pose a national security risk. In the brief, the government contends, “As the Director of National Intelligence (DNI) explained in his declaration asserting the state secrets privilege, the privilege extends to key evidence implicated by plaintiffs’ claims, such as whether plaintiffs themselves had been subjected to any surveillance of the type alleged in their complaints. Confirmation or denial of such claims would cause exceptionally grave harm to national security.” (In theory only al-Qaeda or al-Qaeda associates can be legally subject to warrantless surveillance of this alleged kind.) The brief asserts that denial of even specifically Ms. Jewel’s being monitored could “reasonably could be expected to harm the national security of the United States.”

Despite Ms. Jewel’s claims that practically every American faces extensive NSA surveillance, the Justice Department contends that the plaintiff’s claims to being almost certainly monitored, even were she correct, do not grant her the requisite standing to file suit, just as similar claims did not justify the first suit, Hepting v. NSA, associated with Mr. Klein’s claims about AT&T’s complicity in alleged illegal NSA activity. That activity, another court decided, was made retroactively legal by the 2008 Foreign Intelligence Surveillance Act.

Added the government brief, Ms. Jewel is alleging “additional activities that go far beyond the acknowledged [Terrorist Surveillance Program] and that have never been confirmed or denied by the government.”

During its Binney segment, Democracy Now! played a clip from a House Armed Service Subcommittee hearing where the head of the NSA, Army General Keith Alexander, says “to conduct [the mass collection of citizen emails, cellphone conversations, Google searches, text messages, orders, and bank records]in the United States, it would have to go through a court order, and the court would have to authorize it. We are not authorized to do it, nor do we do it.”

Gen. Alexander’s statement, which he delivered to Representative Hank Johnson (D-GA), amounts to a denial of any extrajudicial monitoring of communications between citizens inside the United States. Additionally, Gen. Alexander’s denials to Rep. Johnson appear to accomplish what the government’s response in the Jewel case does not seek to, namely to reveal “to foreign adversaries the channels of communication that may or may not be secure.” The testimony to the general public appears to indicate that most lines of communication are secure.

Asking for clarification in the course of Rep. Johnson’s questions, Gen. Alexander asks if a particular inquiry was referencing reporting by James “Bashford [sic].”

Extensive Extrajudicial Cellphone Tracking by Local Law Enforcement

This month the ACLU has reported on the extensive use of cellphone tracking by local police forces, often without judicial review. Telecommunications companies even charge police forces surveillance fees for making use of the extant tracking technology, installed in all modern cellphones, which is based on antenna location and not necessarily GPS.

In the 200 responses they received to their 380-department inquiry on tracking cellphones, the ACLU says, “only a tiny minority reported consistently obtaining a warrant and demonstrating probable cause to do so.”

Two weeks later after the ACLU’s proclamation, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) said in a hearing, “Such surveillance is neither limited to terrorist threats, or most importantly, subject to a warrant requirement or judicial review — a little bit too close to big brother for me,” adding a pledge to try to update the Electronic Communications Privacy Act to mitigate any local abuses.

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